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Subway Chokehold Trial & Courts Face Security Risks · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
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Speaker 2: I was scared for myself, but I looked around. I
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Speaker 2: saw women and children. He was yelling in their faces, saying,
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Speaker 2: saying these threats. I couldn't just sit still.
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Speaker 3: Troll began this week for Daniel Penny, the Marine Corps
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Speaker 3: veteran charged with recklessly causing the death of a homeless
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Speaker 3: man by placing him in a deadly choke hold on
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Speaker 3: a New York City subway train last year. The death
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Speaker 3: of Jordan Neely ignited a firestorm of protests, debate, and
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Speaker 3: division across the city and headlines across the country. Was
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Speaker 3: Penny a good samaritan or a vigilante. Penny says he
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Speaker 3: was trying to protect himself and the other passengers because
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Speaker 3: Neely was threatening them.
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Speaker 2: The three main threats that he repeated over and over
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Speaker 2: was I'm going to kill you, I'm prepared to go
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Speaker 2: to jail for life, and I'm willing to die.
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Speaker 3: Jury selection in the case started on Monday. Joining me
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Speaker 3: is criminal defense attorney Jeremy Salande, a former Manhattan prosecutor.
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Speaker 3: How much of this debate about homelessness and mental illness
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Speaker 3: and safety on the subway. How much will that bleed
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Speaker 3: into the trial.
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Speaker 1: These are issues that are biggest hit home for many
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Speaker 1: New Yorkers. But what happens outside the courtroom should remain
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Speaker 1: outside the court. What happens inside the courtroom should be
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Speaker 1: regulated by the four corners of the law. I would
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Speaker 1: not expect that any of it should come into the trial.
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Speaker 1: The question is not what Jordan really did or didn't
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Speaker 1: do Page weeks once and years before criminal record of
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Speaker 1: the health builders being homeless in that moment, in that
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Speaker 1: moment in time, was then Teddy justified and taking action
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Speaker 1: to subdue Jordan Neili and then ultimately cause his death
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Speaker 1: way recklessly and manage it me as the legs by
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Speaker 1: the prosecutors.
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Speaker 3: Nearly reportedly had mental health and drug addiction issues. You
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Speaker 3: don't think that his psychiatric his history, and the fact
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Speaker 3: that synthetic cannabinoids known as K two were found in
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Speaker 3: his system, you don't think that that will come in.
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Speaker 1: First of all, Max Wiley and Judge Wiley's has been
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Speaker 1: around the block in terms of the criminal and criminal
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Speaker 1: justice for years. He was actually my deputy chief when
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Speaker 1: I was a prosecutor, and it's been on the bench
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Speaker 1: a long time. I trust it he'll make the right call,
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Speaker 1: and in this particular case, I think you have to
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Speaker 1: setify the noise and again not looking at his criminal history,
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Speaker 1: at his meaning Jordan Aally, not looking at his mental
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Speaker 1: health issues. Was it relevant in that moment to the
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Speaker 1: determination and the reasonable person analysis, if you will, of
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Speaker 1: Daniel Penny when he observed this man throwing down his
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Speaker 1: jacket saying something along the lines of I don't care
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Speaker 1: if I go to jail or whatever he might have said,
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Speaker 1: and the reaction of people. So you have to limit
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Speaker 1: it because you can't twist the jury and provide evidence
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Speaker 1: that is not relevant in to the determination and decision making.
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Speaker 1: Daniel Penny didn't know about the prior history. Daniel Penny
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Speaker 1: didn't know about the mental helmets, the K two cause
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Speaker 1: and nearly they're acting a certain way. Maybe that could
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Speaker 1: be relevant, But what did people see? What does the
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Speaker 1: video show and demonstrate, and what happened in that moment
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Speaker 1: is really important factor, not days, weeks and months before.
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Speaker 3: There's a four minute video of Penny pinning nearly to
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Speaker 3: the ground and placing him in a choke hold while
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Speaker 3: two other passengers helped to restrain neely, and both sides
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Speaker 3: say they're going to use that, how will they use
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Speaker 3: it differently?
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Speaker 1: Well, you know, I think that the defense's term to
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Speaker 1: try to show that what Penny did was very reasonable
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Speaker 1: in that moment and he's holding and pinning this individual
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Speaker 1: to the ground, and you know there's other people who
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Speaker 1: are helping him do something because they're equally concerned about
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Speaker 1: the volatility of the immediate presence bones or that not
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Speaker 1: threat on lives of people on the subway. Whereas the
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Speaker 1: prosecution is going to show a guy who was subdued
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Speaker 1: and there's a hold around the neck and the true
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Speaker 1: hold and probably concentrate more on that, which, ultimately, if
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Speaker 1: you believe in their theory, and they proved me on
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Speaker 1: a reading him about paused him to lose consciousness and
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Speaker 1: ultimately pass, setting aside whether or not law enforcement did
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Speaker 1: CPR and should have done CPR. So it's the same video, obviously,
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Speaker 1: But what is going to try to demonstrate it was
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Speaker 1: reasonable in the moment. The other words, we're going to
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Speaker 1: try to demonstrate it was naveraging, reckless, and beyond the panel,
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Speaker 1: if you will.
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Speaker 3: The Medical Examiner's Office found that he died from compression
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Speaker 3: to his neck as a result of the choke hold,
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Speaker 3: and the manner was homicide. The defense said it's going
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Speaker 3: to attack the emmy's report and bring up potential other
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Speaker 3: causes of Neelie's death, including high levels of that K
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Speaker 3: two in his blood stream that usually works in movies.
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Speaker 3: Does it work in the courtroom.
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Speaker 1: It can work in the courtroom. And this is sort
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Speaker 1: of a response to what we asked me earlier. I
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Speaker 1: don't necessarily believe the cakes was relevant to the reaction
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Speaker 1: and behavior of a penny, but it can absolutely be relevant.
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Speaker 1: And I assume we'll have a forensic and expert for
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Speaker 1: lack of better term, to try to establish this that
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Speaker 1: the K two may have been that proximate natural cause
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Speaker 1: or death to join a kneeling. So I think that's
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Speaker 1: going to be something that they're going to argue, and
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Speaker 1: it should be something it sounds like it is. Does
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Speaker 1: it work in real life as opposed to movies. Every
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Speaker 1: case is unique, and every case is different. I believe
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Speaker 1: that big concern here is you have to make sure
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Speaker 1: that you separate those jurors the preconceived notion, whether it's race,
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Speaker 1: whether it's politics, whether it's some way safety take them
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Speaker 1: out of the equation so that that jury objectively analyzes
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Speaker 1: the evidence that's presented in that courtroom. So it does work,
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Speaker 1: It absolutely can work. It's not an easy task or
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Speaker 1: an easy lift, especially with such a charged case. From
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Speaker 1: the emotional perspective.
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Speaker 3: Both sides are going to call witnesses who are on
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Speaker 3: the train, and it appears that their level of concern
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Speaker 3: about Neely's behavior varied. Some said they were afraid, others
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Speaker 3: said no, they see this all the time on the subway.
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Speaker 3: Will their accounts sort of cancel each other out?
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Speaker 1: The testimony and the witnesses are not going to cancel
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Speaker 1: shovel out to lack of a better way to describe it,
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Speaker 1: The words that they use are going to be critically
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Speaker 1: important because that video owning shows section in time and
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Speaker 1: doesn't show that imminent threat because remembered by law, there
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Speaker 1: needs to be that imminent threat of that serious physical
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Speaker 1: injury or death even to allow for the justification defense
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Speaker 1: or self defense if you will yourself or other people.
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Speaker 1: So beyond that video, how do these people perceive those moments?
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Speaker 1: How do they react? And I'd be very concerned, as
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Speaker 1: Daniel Penny's counsel and Daniel penny personally, if witnesses are
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Speaker 1: going to call up and say, you know what, you
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Speaker 1: see this all the time, you put your head down.
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Speaker 1: I'm a New Yorker, I've been around the block, I'm
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Speaker 1: ridden these subways. Later at night, you just ignore that
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Speaker 1: moment and the threat if he will goes away, because remember, too,
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Speaker 1: it's not about just being scared or nervous or anxious.
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Speaker 1: It's not a candae or textansponder of riding the New
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Speaker 1: York subway. It's photography or a realual New York standard
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Speaker 1: or just a reasonable standard versus standard, and what was
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Speaker 1: deserved in the moment. So you have to be careful.
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Speaker 1: I don't think they're going to negate each other the
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Speaker 1: words and the specificity why and how they believe that
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Speaker 1: they were physical or serious physical danger in a death.
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Speaker 1: That's so important, so important, not just that I'm scared.
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Speaker 3: What about the fact that he was a trained marine?
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Speaker 3: Does that come in very well?
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Speaker 1: Can come in if there is evidence that he knew
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Speaker 1: and was aware of this type of choke hold and
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Speaker 1: how to apply it and use it, and the potential
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Speaker 1: consequences of it. Because because remember, you know, it's not
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Speaker 1: an intentional client but did he know of these risks
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Speaker 1: from Jordan Eely? And then he just really ignored those risks.
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Speaker 1: Was there a substantial likelihood or risk that his actions
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Speaker 1: were going to cause another person's death and he ignored it.
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Speaker 1: It really just disregarded this person's well being in Jordan Eely.
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Speaker 1: And if Danny Penny was aware and knew and had
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Speaker 1: that skill set, I believe that it should come in.
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Speaker 3: It should revel go over what does a prosecution need
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Speaker 3: to prove to get a manslaughter conviction?
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Speaker 1: So man'slaughter is a little bit different and criminally negligent
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Speaker 1: on side, just think it's different from an intentional crime
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Speaker 1: when you're trying advanced daughter the second degree, when the
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Speaker 1: prosecution has to imagines that you recklessly cause the death
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Speaker 1: to another person. Reckless is that standard, whereas criminally negligent,
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Speaker 1: which is different, and that's the lower felony, that's the
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Speaker 1: class ethelony that when you do so you commit these acts,
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Speaker 1: you failed to sort of perceive that there was this
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Speaker 1: real substantial risk that your actions would tell us out
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Speaker 1: of the person's death. So the recklessness is different and
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Speaker 1: it's more severe than the lesser, if you will, of
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Speaker 1: criminal negligence.
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Speaker 3: So The question looming over the trial, like every trial basically,
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Speaker 3: is whether he's going to testify himself, And one of
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Speaker 3: his lawyers said he'd be a great witness. We anticipate
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Speaker 3: that he will, but that will depend on how the
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Speaker 3: trial goes. Do you think he almost needs to testify
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Speaker 3: to show his state of mind at the time.
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Speaker 1: Defense attorney such as myself, we don't always show our
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Speaker 1: cards like the prosecution does at this point in the
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Speaker 1: trial process. A lot of this hinges on that witness testimony. Yes,
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Speaker 1: that video was important, but I think that video can
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Speaker 1: work against Daniel Penny too, because you know, if someone
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Speaker 1: is quote unquote squirming, as was used in the terminology
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Speaker 1: by Daniel Penny, and that's not a favorable term, and
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Speaker 1: for all those minutes to hold that person there, what
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Speaker 1: are these witnesses going to say? Are they going to
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Speaker 1: articulate how and why they would feel for for their
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Speaker 1: life or their physical safety? Because if they don't, then
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Speaker 1: Daniel Penny has to testify. If they do and it's
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Speaker 1: clear of this imminent threat danger, then maybe Daniel Penny doesn't,
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Speaker 1: but I would expect him too. I would suspect he
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Speaker 1: will testify because he probably will come across as a
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Speaker 1: sympathetic person, not trying to attention the hurt another man
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Speaker 1: to do what he thought was the right thing in
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Speaker 1: that moment. True or not, that's the jury to decide,
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Speaker 1: but I would expect that he would testify.
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Speaker 3: You mentioned that Penny said that Neely was scored, and
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Speaker 3: the judge has rule that the prosecution can introduce that
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Speaker 3: video of him describing Neely as squirming to police and
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Speaker 3: other things he said to police when he was being questioned.
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Speaker 1: The choice of words that Daniel Penny chose in the
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Speaker 1: moment are probably words in retrospect he should not have.
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Speaker 1: You're not necessarily thinking of the right words to use,
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Speaker 1: especially if you're not technically in custody at the time
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Speaker 1: and there's just an investigation. But to our certain that
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Speaker 1: Jordan Neely was was squirming is not necessarily the right
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Speaker 1: language when I think of someone being a violent threat
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Speaker 1: to my life and safety or that in others, swirming
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Speaker 1: is more squirming to get away from someone, squirming to
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Speaker 1: slip away and protect oneself. Not he was flailing his arms,
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Speaker 1: who was taking swings, who was cursing me out, he
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Speaker 1: was threatening people? He was grudging, squirming difficult word. If
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Speaker 1: I'm the prosecution, I might seize on that word of
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Speaker 1: squirming because it's not indicative, in my viewing, suggestive or
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Speaker 1: honestly of those violent throws and violent actions. Whereas if
11:13
Speaker 1: I'm the defense, I may try to explain what I
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Speaker 1: mean so I can explain it away and make it
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Speaker 1: clear that in the moment when Daniel Penny was obviously
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Speaker 1: anxious and this had just happened, he may have chosen
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Speaker 1: the wrong words, but the heart of what he was
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Speaker 1: saying was the same thing. I was holding this person
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Speaker 1: in a way that I felt was the best to
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Speaker 1: achieve and the safest for everyone to achieve, him from
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Speaker 1: not bringing anyone on their room worst on that train.
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Speaker 1: So squirming is something that I might see on as
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Speaker 1: a prosecution.
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Speaker 3: Police interviewed him on the day that Neely died and
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Speaker 3: then released him. That was criticized by some elected officials
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Speaker 3: and protesters demanded that Penny be arrested. Will that come.
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Speaker 1: In issues of something called Huntley hearing? It statements that
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Speaker 1: are made whether you're in custody and it's an interrogation.
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Speaker 1: As a matter of law, those issues aboady been litigated,
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Speaker 1: So you're not going to hear that litigation in and
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Speaker 1: of itself, but it could very well come in and
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Speaker 1: I would expect it to come in that he was
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Speaker 1: questioned and arrested only after the fact, because the prosecution
12:20
Speaker 1: wants to tell a complete story. They don't want to
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Speaker 1: seem like they're hiding the ball and misrepresenting. They want
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Speaker 1: to explain why that occurred. Because if I'm the defense,
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Speaker 1: I want to seize on that and say, you guys
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Speaker 1: didn't arrest me initially. Look at because there's political pressure
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Speaker 1: only because of his outside voices and the issues of
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Speaker 1: race and the issues of subway safety and politics. Did
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Speaker 1: my client get arrested? And that's not just or justice.
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Speaker 1: So I would expect it to come in with both
12:43
Speaker 1: sides trying to rationalize a reason why. And I will
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Speaker 1: say that this is not incredibly atypical. Certainly most people
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Speaker 1: are arrested in a moment, but there are times that
12:53
Speaker 1: not only does the NYPD not make an arrest initially,
12:56
Speaker 1: there are also times when prosecutors' offices DA's all is
13:00
Speaker 1: do what's called a DP or a decline to prosecute
13:03
Speaker 1: a case even after the process has started for further investigation,
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Speaker 1: only to later make an arrest. So this is not
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Speaker 1: necessarily typical, but it's not atypical either.
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Speaker 3: So what kind of juror are you looking for if
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Speaker 3: you are the prosecutor, and what kind if you're the defense.
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Speaker 1: Starting with the prosecution, I'm looking for in real New Yorker,
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Speaker 1: which is the opposite of what the defense is looking for.
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Speaker 1: I don't want my Florida, Texas, California, Iowa transplant. I'm
13:32
Speaker 1: not looking for the guy or gal who's been around
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Speaker 1: the block once because they had to walk to school
13:38
Speaker 1: or their new job, and they're so excited to be
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Speaker 1: in the big city, you know, bright eyed and excited.
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Speaker 1: Maybe mom and dad are paying the rents. That's the
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Speaker 1: person that the defense wants, because the defense wants that
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Speaker 1: overreacting individual who is not familiar with the subway life,
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Speaker 1: is not familiar with quote unquote goffing. Manhattanites are very
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Speaker 1: very different, who've ridden in that subway, who live their
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Speaker 1: lives to a better temper of jur that we would
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Speaker 1: expect the prosecution to want to take. You know, put
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Speaker 1: your head down, walk away, This too shall pass.
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Speaker 3: Would you rather be the prosecutor here or the defense attorney.
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Speaker 1: In this scenario? Whatman's asking me is trying to be
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Speaker 1: sneaky and sly what I think is going to happen.
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Speaker 1: That's what trying do I see, I see they It's
14:17
Speaker 1: not my first rodeo. That being said, if I had
14:21
Speaker 1: to take a side, which really sounds awkward saying that
14:24
Speaker 1: was because this is such a tragic case of matiti result.
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Speaker 1: But if I had to take a side from a
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Speaker 1: legal perspective, I would want to work aside of the prosecution.
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Speaker 1: I think this is an uptill client to what I
14:34
Speaker 1: have seen. I granted to process one hundred percent every
14:38
Speaker 1: single person, every single time, and the process system, on
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Speaker 1: its course, will see the evidence. But that video is
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Speaker 1: not some overwhelming piece of evidence that we say, oh
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Speaker 1: my gosh, Daniel Plone, you know, was it reckless or negligent?
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Speaker 1: Remember not intentionally. It's not irrelevant. And those witnesses on
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Speaker 1: the subway from what I have read, which is not evidence,
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Speaker 1: and we'll see that evidence. But what I have read
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Speaker 1: there's nothing so over well, oh my gosh, you know,
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Speaker 1: if you've ridden the subway New York, this happened.
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Speaker 4: This happened.
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Speaker 1: It's terrible. It's sad in terms of people having episodes
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Speaker 1: or madic episodes, or misbehaving or even getting aggressive environment.
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Speaker 1: But that's something we see and I would not want
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Speaker 1: to be on the side of Daniel Penny. But let's
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Speaker 1: journey decide that it's not my job whether let's look
15:23
Speaker 1: through process from each course.
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Speaker 3: The case is going to take quite a while, so
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Speaker 3: we'll check back with you. Thanks so much, Jeremy. That's
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Speaker 3: criminal defense attorney Jeremy Salande. Courts in battleground states are
15:34
Speaker 3: getting ready to fight potential security threats, and they're expanding
15:39
Speaker 3: resources to deal with an expected influx of election litigation.
15:44
Speaker 3: In states like Arizona, Pennsylvania, and Nevada, courts are announcing
15:49
Speaker 3: plans from speeding up election related cases and shortening appellate
15:53
Speaker 3: deadlines to making sure every judge is on call on
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Speaker 3: election day and creating new social media accounts to get
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Speaker 3: out accurate information. Joining me is Suzanne Monnac, judiciary reporter
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Speaker 3: for Bloomberg Law. Let's start by talking about the concerns
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Speaker 3: that courts are having right now about the election. First,
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Speaker 3: I mean, we've heard about these increased threats against judges
16:21
Speaker 3: and other judiciary workers. Tell us about that. If that's
16:25
Speaker 3: part of the concern now.
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Speaker 4: Absolutely, threats against judges and other judiciary specials have been
16:30
Speaker 4: on the rise in recent years. We've seen the number
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Speaker 4: of investigated threats by the US Marshals more than double
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Speaker 4: between twenty nineteen and twenty twenty three. Obviously, now as
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Speaker 4: we're heading into an election, these cases are their high profile,
16:42
Speaker 4: they're watched on a national scale, and so as we're
16:45
Speaker 4: seeing already this landscape where judges are at increased risk
16:48
Speaker 4: of threat of harm, now they're handling a case of significant,
16:52
Speaker 4: potentially political importance, especially if it's in any of these
16:55
Speaker 4: battleground states, it may be a big decider in the election.
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Speaker 4: So anytime we have judges handling cases like that, especially
17:02
Speaker 4: in this heightened threat landscape, you know there are just
17:04
Speaker 4: going to be heightened security concerning what are they.
17:07
Speaker 3: Doing about that? I mean, are they giving judges more security?
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Speaker 4: Obviously I had judges I spoke to for this story,
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Speaker 4: or hesitance has evolved too many you know details about
17:16
Speaker 4: their specific security planning for obvious reasons. But we have
17:19
Speaker 4: seen quite a bit of you know, improvement, ius I'll say,
17:22
Speaker 4: more resources given to security thance the last election for example,
17:26
Speaker 4: and a big reason for that is the tragic event
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Speaker 4: that happened in summer of twenty twenty when the son
17:30
Speaker 4: of a New Jersey federal judge was murdered in his
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Speaker 4: own home by dis frontal attorney posing as a delivery
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Speaker 4: man in this horrible event was really a bit of
17:37
Speaker 4: a wake up call for the judiciary on security. And
17:40
Speaker 4: so we saw Congress past legislation a few years ago
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Speaker 4: trying to crack down on, you know, having publicly posted
17:46
Speaker 4: personal identifying information for judges on the Internet, like their addresses,
17:50
Speaker 4: or seeing judges being encouraged to use software to delete
17:54
Speaker 4: information that may already be online. The judiciary has changed
17:57
Speaker 4: their system to sort of try to encourage judges to
18:00
Speaker 4: have home security systems and then get those reinverse. So
18:02
Speaker 4: we are seeing programs on more of a national level
18:05
Speaker 4: to you know, try to better protect judges. And obviously
18:08
Speaker 4: every year the judiciary ask Congress for more money for
18:11
Speaker 4: these security resources, and that's continued. So while there hasn't
18:14
Speaker 4: been you know, necessarily you know, more bodyguards for individual judges,
18:18
Speaker 4: per say, we are seeing really an increased focus on
18:20
Speaker 4: this in Washington.
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Speaker 3: And so what are some of the other concerns that
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Speaker 3: the courts are having now as you know the election
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Speaker 3: is approaching.
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Speaker 4: These security concerns you know, are true for election cases.
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Speaker 4: There are of course also true for any you know,
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Speaker 4: high profile case you're dealing with, you know, a celebrity
18:36
Speaker 4: or maybe some viral true crime case. But election cases
18:38
Speaker 4: can be kind of like a unique situation for the courts,
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Speaker 4: and that they can be maybemaquely vulnerable to some of
18:44
Speaker 4: these disinformation campaigns we've seen targeting the judiciary. This might
18:47
Speaker 4: be you know that judges are biased or you know,
18:50
Speaker 4: helped for one side over the other. While at the
18:52
Speaker 4: same time we're seeing a lot of you know, claims
18:55
Speaker 4: of elections broad including from former President Donald Trump. So
18:58
Speaker 4: those two kinds of just them for me campaigns together
19:01
Speaker 4: can really just put judges hearing election cases in a
19:04
Speaker 4: really uniquely difficult situation.
19:07
Speaker 3: What are they able to do about the disinformation either
19:11
Speaker 3: Russian disinformation or Trump's disinformation or all the rest of
19:16
Speaker 3: the inaccuracies we see online.
19:19
Speaker 4: And it's certainly a difficult problem to tackle. You know,
19:21
Speaker 4: I think we've seen some courts fetiship away at it
19:24
Speaker 4: by trying to better publicize information about election cases, maybe
19:28
Speaker 4: having a landing page on the home page of their website,
19:31
Speaker 4: so the public, maybe especially amid increasing distrust in the
19:34
Speaker 4: media and reporters, the public can go onto the court
19:36
Speaker 4: website and click the case and see the filings for themselves.
19:39
Speaker 4: The Pennsylvania State Court system, for example, a state we're
19:42
Speaker 4: highly expected to have some contentious election litigation in that
19:45
Speaker 4: battleground state, has launched a blue sky page and we
19:49
Speaker 4: were social media platforms to kind of push out information
19:52
Speaker 4: about high profile election cases. So I think we're trying
19:55
Speaker 4: to see more transparency from the court, trying to make
19:57
Speaker 4: these cases accessible to the public, where like court you know,
20:00
Speaker 4: docket page may not be quite as accessible to someone
20:03
Speaker 4: who isn't used to, you know, waiting through litigation. But
20:06
Speaker 4: at the same time, of course, you know, these campaigns
20:08
Speaker 4: are a challenge on a national scale, and you know,
20:11
Speaker 4: there are researchers I've spoke to who really study disinformation
20:13
Speaker 4: and they say it's coming from Russia and maybe other
20:16
Speaker 4: foreign actors and sometimes from domestic actors as well. So
20:19
Speaker 4: I mean it's, you know, one of those things that
20:21
Speaker 4: you know, there's not one solution to you know, fight
20:24
Speaker 4: election disinformation, and I think it's become you know of
20:27
Speaker 4: increasing concern in racing years.
20:29
Speaker 3: Is there more emphasis on this in the swing states,
20:33
Speaker 3: the states that we think might determine the election. You
20:37
Speaker 3: mentioned Pennsylvania that seems to be a you know, a
20:40
Speaker 3: must win.
20:41
Speaker 4: Absolutely. I mean, of course, election litigation can happen anywhere.
20:44
Speaker 4: It can be contentious in any state. But I think,
20:47
Speaker 4: you know, I bring up the battle around states, these
20:49
Speaker 4: swing states, because I think probably the contensus is that
20:52
Speaker 4: that's where these litigation might have the greatest impacts one
20:55
Speaker 4: way or the other. You know, a state that is
20:58
Speaker 4: not a swing state, it's probably like the election litigation
21:00
Speaker 4: may just not have the same you know, national significance
21:02
Speaker 4: as one in a battleground state. And so that just
21:04
Speaker 4: means it's more likely to garner more public attention. And
21:07
Speaker 4: it's just when you're not having cases with this much
21:09
Speaker 4: public attention that you're more likely to see threats from
21:11
Speaker 4: the public. People who are scrutinizing these cases. They're scrutinizing
21:14
Speaker 4: the judges. They're calling chambers and threatening the judges if
21:17
Speaker 4: they don't rule in favors, you know, whatever direction of
21:20
Speaker 4: the case they think will benefit their favored candidate. And
21:22
Speaker 4: so just you know, more national scrutiny, more national attention
21:25
Speaker 4: just is always going to bring security threads.
21:28
Speaker 3: And you're right that some courts and swing states are
21:32
Speaker 3: trying to speed up election related cases and you know
21:36
Speaker 3: one has every judge on call on election day.
21:40
Speaker 4: Yes, security is not the only challenge for courts managing
21:43
Speaker 4: this type of litigation. Sometimes it's just a resources challenge's
21:47
Speaker 4: an administrative challenge. These cases are filed in both state
21:50
Speaker 4: and several courts, but perhaps largely in state courts, and
21:53
Speaker 4: depending on the court, you know, they may just know
21:56
Speaker 4: there's not have resources. These courts have really very court
21:58
Speaker 4: by court across the country, and of these courts just
22:00
Speaker 4: may not be used to handling a case that is
22:03
Speaker 4: so high profile and such national significance. And with these
22:06
Speaker 4: cases also can come just like timeliness concurrency mentioned, you know,
22:10
Speaker 4: speeding up processing of cases. You know, election days in November,
22:13
Speaker 4: the inauguration is supposed to be you know, the following January.
22:17
Speaker 4: That really is a time crunch to be able to
22:19
Speaker 4: get through any very important election challenges that could determine
22:23
Speaker 4: the outcome of the whole election. And so we've seen
22:25
Speaker 4: courts you know, putting out guidance, you know, shortening appellate
22:28
Speaker 4: deadlines to get these moving faster, asking judges to prioritize
22:32
Speaker 4: election cases, perhaps over other cases. Or you mentioned on staffing.
22:37
Speaker 4: I had it with former chief judge of the Nevada
22:39
Speaker 4: Federal District Court tell me that starting for the twenty
22:42
Speaker 4: twenty election, her court was having all judges, all active judges,
22:45
Speaker 4: be on call for election day to make sure that
22:48
Speaker 4: if they had multiple emergency motions requesting emergency time sensitive relief,
22:53
Speaker 4: they would have the resources to handle that.
22:55
Speaker 3: And in these swing states, we're seeing a lot of
22:59
Speaker 3: pre election litigation over some important issues having to do
23:03
Speaker 3: with not only who can vote, but how the votes
23:07
Speaker 3: are counted.
23:08
Speaker 4: Absolutely these cases, I mean, there's already been quite a
23:10
Speaker 4: few files. So when I say their course starret you know,
23:12
Speaker 4: gearing up or so for election litigation, you know it's
23:15
Speaker 4: already begun, and I think we're expecting more to follow,
23:18
Speaker 4: you know, some of the types of cases that have
23:20
Speaker 4: been you know, while so far we've already had a
23:23
Speaker 4: state court in Georgia block of Republican election boards moved
23:26
Speaker 4: to mandate that ballots be hand counted. Other litigation that's
23:31
Speaker 4: in filed that's been you know, in Pennsylvania over like
23:34
Speaker 4: whether ballots can be you know, accepted if they have
23:36
Speaker 4: the wrong date or they don't have a date. So
23:38
Speaker 4: just a lot of different types of issues in the
23:41
Speaker 4: election system regarding you know, mail in voting, voter eligibility,
23:45
Speaker 4: that sort of thing that we're seeing in battle ground
23:48
Speaker 4: states across the country.
23:50
Speaker 3: I saw you you talk to Texas Supreme Court Chief
23:53
Speaker 3: Justice Nathan Heckton. He said elections are hard on the
23:56
Speaker 3: judiciary because the public is thinking everything's political everything, and
24:01
Speaker 3: that the courts must be too, and so judges are
24:04
Speaker 3: concerned about the public's perception of fairness.
24:08
Speaker 4: I think absolutely, I think concerned about public distrust and
24:11
Speaker 4: the judiciary has to be top of minds for judges.
24:14
Speaker 4: I mean, their goal is, you know, they want to
24:16
Speaker 4: be an independent, you know, impartial decider, a judicator. If
24:19
Speaker 4: the public, you know, thinks that judges are biased, you know,
24:22
Speaker 4: it certainly is a pretty significant hit to the judiciary's credibility. So,
24:26
Speaker 4: I mean, I think most judges, you know, they see
24:28
Speaker 4: that they see this trend in this polling while also
24:31
Speaker 4: it seeing a rise in security threats to them, And
24:34
Speaker 4: I think it's concerning across the board, you know, Judge Heston.
24:37
Speaker 4: Actually he mentions me as well that you know, in
24:39
Speaker 4: some states like his, for example, judges run in partisan
24:42
Speaker 4: elections for their seats, and that's something we see in
24:44
Speaker 4: some state courts. And he told me that's not something
24:46
Speaker 4: he's actually for. And it's just sort of all of
24:49
Speaker 4: these things that can make it, you know, can erode
24:52
Speaker 4: really I guess space in the judiciary and make it
24:54
Speaker 4: harder for judges to do their job.
24:56
Speaker 3: I want to turn for a moment, Susan to the
24:59
Speaker 3: controversy over that Alaska judge. Start by telling us about
25:04
Speaker 3: former Alaska judge Joshua Kindred and the scandals surrounding him.
25:10
Speaker 4: Yes, there's been quite a judicial ethics saga coming out
25:13
Speaker 4: of Alaska. Former Judge Joshua Kindred, as a Trump appointee,
25:17
Speaker 4: resigned in July amid findings by the Appellate Court Judicial
25:21
Speaker 4: Counsel that he had engaged in very serious sexual misconducts,
25:24
Speaker 4: including sexual harassment with his former clerk, as well as
25:28
Speaker 4: inappropriate relationships with attorneys who appeared before him, and he
25:31
Speaker 4: lied about it to judicial investigators. This judge has since resigned,
25:35
Speaker 4: but in the week of his departure, we have seen
25:37
Speaker 4: now significant potential conflicts of interest in some of his
25:39
Speaker 4: past cases, involving those where he might have had an
25:42
Speaker 4: inappropriate relationship with one of the attorneys in the case.
25:45
Speaker 3: Defense lawyers obviously have looked at the conflicts of interest
25:49
Speaker 3: and tried to take advantage of them, and actually one
25:53
Speaker 3: judge has ordered a new trial in one case.
25:56
Speaker 4: Yes, both the Alaska US Attorney's Office and federal defenders
25:59
Speaker 4: have identified does of cases where there may have been
26:01
Speaker 4: potential conflicts of interest. These incublud cases where Judge Kendred
26:06
Speaker 4: saw the case through to the end, as well as
26:08
Speaker 4: cases where he recused midway through once the judiciary started
26:11
Speaker 4: investigating him. In his times to some of these lawyers
26:14
Speaker 4: were revealed, and so that'll be the defenders at least
26:17
Speaker 4: were taking a look to see if there's a an
26:19
Speaker 4: avenue for relief for their client. And yes, as he
26:21
Speaker 4: mentioned last month, we saw that for the first time
26:23
Speaker 4: we saw an Alaska federal court case being overseen by
26:26
Speaker 4: a visiting judge from within the circuit or she ordered
26:29
Speaker 4: a new trial for a defendant because in his case,
26:32
Speaker 4: though this attorney had not actually been officially an attorney
26:36
Speaker 4: of records for the prosecution she had had a supervisory role.
26:39
Speaker 4: This is an attorney who had been found by the
26:41
Speaker 4: Judicial Council to have sent explicit photos of herself to
26:44
Speaker 4: the judge as a part of some sort of flirtatious
26:46
Speaker 4: relationship to two of them had and as a result
26:48
Speaker 4: of the fact that she had sent those photos and
26:50
Speaker 4: had a supervisory role in the case, the judge felt
26:52
Speaker 4: that there was at a very least an appearance of
26:55
Speaker 4: a significant conflict that merited a new trials describe is
26:57
Speaker 4: going to get a full redo under a new judge.
27:00
Speaker 3: So for the first time, federal prosecutors are asking to
27:04
Speaker 3: have a case thrown out, a criminal conviction, one of
27:07
Speaker 3: Kindred's cases.
27:08
Speaker 4: That's right. Up until now, we've seen you know, requested
27:10
Speaker 4: by defense lawyers, largely mostly on the criminal side, though
27:13
Speaker 4: at least one civil case trying to have you know,
27:16
Speaker 4: decisions against their clients thrown out based on the presence
27:19
Speaker 4: of this attorney who'd sent photos.
27:20
Speaker 2: To the judge.
27:21
Speaker 4: And then last night we saw it really go a
27:23
Speaker 4: step further when the Justice Department itself, you know, it's
27:26
Speaker 4: part of its own case review, identified a case where
27:29
Speaker 4: it felt that it was a significant conflict of interest
27:31
Speaker 4: that had to bring it to the court and asked
27:33
Speaker 4: to vacate a conviction that had happened two years ago
27:36
Speaker 4: as a result of the judicial and you know, really
27:38
Speaker 4: prospecatorial in this conduct. Here, they for the first time
27:41
Speaker 4: publicly identified the lawyer who had been sending the nude
27:45
Speaker 4: photos to the judge. Bloomberg has already reported her identity,
27:48
Speaker 4: but had been unnamed so far in public court filings.
27:51
Speaker 4: And they revealed that this lawyer had had ex party
27:54
Speaker 4: conversations with the judge about this case. So just you know,
27:57
Speaker 4: really serious disclosure regards being prostatorial in judicial misconduct.
28:02
Speaker 3: Here, the Justice Department told the court it learned from
28:05
Speaker 3: a hearsay source about an ex party conversation the judge
28:09
Speaker 3: had with this prosecutor.
28:11
Speaker 4: Yeah. Absolutely, and that's I mean, that's a very significant disclosure,
28:15
Speaker 4: especially the current straight from the Justice Department. You know,
28:18
Speaker 4: I think there's been a speculation among the defense bar that, oh,
28:21
Speaker 4: if the judge is, you know, having this flirtatious, you know,
28:24
Speaker 4: sexting relationship with a prosecutor, that perhaps there's conversations happening
28:28
Speaker 4: between them about cases. But to hear it from the
28:31
Speaker 4: Justice Department itself was significant and This also isn't you know,
28:34
Speaker 4: the first time we already saw a request this time
28:37
Speaker 4: by earlier by the defense bar regarding the judge having
28:40
Speaker 4: you know, conversations with another prosecutor in the office who
28:44
Speaker 4: wasn't actually on that case. This has you know, been
28:46
Speaker 4: raised before that this judge it has been having you know,
28:49
Speaker 4: sexual relationships of some kind with more than one prosecutor
28:52
Speaker 4: and what kind of conflict whether it's going to present
28:54
Speaker 4: for the defendants in his core room.
28:57
Speaker 3: I was just interested in this. You said that of
28:59
Speaker 3: the motion to vag Kate was signed by Stephen Klemer,
29:02
Speaker 3: a veteran fixer recently deployed to the Alaska What do
29:05
Speaker 3: you do about that?
29:06
Speaker 4: Mister Klemer was you know, deployed over to the office,
29:09
Speaker 4: you know, just a few months ago. My colleague's a
29:11
Speaker 4: Justice Department reporter, was the one to report on his entrance,
29:14
Speaker 4: and he's since filed his name in multiple dockets of
29:18
Speaker 4: cases that are being reviewed. And I think it really
29:20
Speaker 4: just goes to show that the Justice Department sees a
29:23
Speaker 4: problem here that they've now brought in somebody with decades
29:26
Speaker 4: of experience and these kinds of issues to be you know,
29:29
Speaker 4: going to Alaska filing, you know, an appearance on these
29:32
Speaker 4: dockets and engaging in this case review to find potential
29:35
Speaker 4: conflicts between the judge and attorneys with the last US
29:38
Speaker 4: Attorney's office.
29:39
Speaker 3: And it's probably going to be years that this saga
29:43
Speaker 3: is going to play out. What an unusual case. Thanks
29:46
Speaker 3: so much, Suzanne. That's Bloomberg Lawn Judiciary reporter Suzanne Monnac.
29:51
Speaker 3: And that's it for this edition of the Bloomberg Law Podcast.
29:54
Speaker 3: Remember you've can always get the latest legal news by
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30:01
Speaker 3: and at Bloomberg dot com, Slash podcast, Slash Law. I'm
30:05
Speaker 3: June Grosso and this is Bloomberg