Latest / Bloomberg Law / Weekend Law: SCOTUS on Human Rights, Religious Rights & Etan Patz

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Weekend Law: SCOTUS on Human Rights, Religious Rights & Etan Patz · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: This week, the Supreme Court handed down ten decisions. Eight
0:12
Speaker 2: were by votes of six to three, with the conservative
0:16
Speaker 2: Republican appointees in the majority and the liberal Democratic appointees
0:21
Speaker 2: in dissent. This term, the Court has already decided more
0:25
Speaker 2: cases split down ideological lines than it did in all
0:30
Speaker 2: of last term. On Tuesday, the Court's conservatives put new
0:34
Speaker 2: limits on lawsuits alleging human rights violations against corporations over
0:39
Speaker 2: atrocities committed abroad, effectively putting an end to these suits
0:44
Speaker 2: over human rights abuses. The reasoning echoed the concerns expressed
0:49
Speaker 2: by conservatives like Justices Neil Gorsich and Brett Kavanaugh during
0:54
Speaker 2: the oral arguments that Congress should be the branch dealing
0:57
Speaker 2: with accusations of human rights vias in other countries.
1:02
Speaker 3: Really, the job for creating causes of action because of
1:05
Speaker 3: foreign policy concerns, as sympathetic as this case particular case
1:09
Speaker 3: certainly is, but the responsibility for creating causes of action
1:12
Speaker 3: generally lies not with judges but with Congress.
1:17
Speaker 4: I'm concerned at the separation of powers level that we're
1:21
Speaker 4: not really allowing suits to go forward, but Congress thinks
1:25
Speaker 4: we are because of a lack of clarity in our
1:28
Speaker 4: case law.
1:29
Speaker 2: The court granted tech giant Cisco's bid to shut down
1:32
Speaker 2: the lawsuit, alleging that the company work closely with China
1:36
Speaker 2: to create the surveillance system that allowed officials to identify, apprehend,
1:41
Speaker 2: and torture members of the fall and Gong spiritual movement
1:45
Speaker 2: in China. Cisco has denied allegations of wrongdoing. My guest
1:49
Speaker 2: is an expert in international law, Curtis Bradley, a professor
1:53
Speaker 2: at the University of Chicago Law School. Kurt tell us
1:56
Speaker 2: about this lawsuit by twelve Chinese nationals and one US
2:01
Speaker 2: citizen against Cisco.
2:03
Speaker 5: So, the Cisco case was a suit brought by the
2:06
Speaker 5: Falan Goong religious group from China at least a number
2:10
Speaker 5: of members of that organization. They were suing not China
2:13
Speaker 5: in this case, but Cisco Systems, the computer company in
2:16
Speaker 5: the United States, and their argument was that Cisco had
2:20
Speaker 5: aided and abetted persecution of the Fallongong in China by
2:24
Speaker 5: supplying Chinese government with surveillance technology. Basically, and the lower
2:29
Speaker 5: court had allowed this case to go forward, and the
2:32
Speaker 5: Supreme Court said that it could not go forward, and
2:34
Speaker 5: they issued a pretty important ruling about this type of
2:38
Speaker 5: human rights litigation, which has been pretty active for the
2:41
Speaker 5: last thirty years. And the Court's decision in Cisco, I
2:44
Speaker 5: think largely is going to put an end to these
2:46
Speaker 5: human rights cases brought against corporations.
2:49
Speaker 2: So was the basic issue whether the Alien Towards Statute
2:53
Speaker 2: creates liability for corporations who aid and a bet human
2:58
Speaker 2: rights abuses.
2:59
Speaker 5: Yeah, cases based on this old statute called the Alien
3:02
Speaker 5: Torch Statute. It's actually been on the books since the
3:05
Speaker 5: beginning of the country seventeen eighty nine, but it has
3:08
Speaker 5: just been used for human rights litigation really during the
3:11
Speaker 5: last thirty or forty years. And what the Court held
3:15
Speaker 5: in the Cisco case was effectively it cannot be used
3:18
Speaker 5: for human rights claims, you know. One way to translate
3:21
Speaker 5: the decision, They basically said the statute doesn't have enough
3:24
Speaker 5: indication in it that Congress has wanted these human rights
3:27
Speaker 5: cases to go forward. So unless Congress amends the statute,
3:31
Speaker 5: the Court is really putting an end to those cases.
3:33
Speaker 5: It did say that the statue could be used for
3:36
Speaker 5: a few personal injury type claims that would have been
3:39
Speaker 5: around in the seventeen eighties, but they're not ones that
3:41
Speaker 5: we ever see today anymore. So this Cisco case basically
3:46
Speaker 5: says Congress will have to provide a new statue if
3:48
Speaker 5: plaintiffs are going to be able to sue for human
3:50
Speaker 5: rights abuses occurring in various countries. And that's that's an
3:54
Speaker 5: important ruling because there have been many cases for human
3:57
Speaker 5: rights abuses brought for atrocity from around the world, and
4:01
Speaker 5: they've been brought into US courts under this old alien
4:04
Speaker 5: Tort Statute, and the Supreme Court had composed a variety
4:07
Speaker 5: of restrictions on that litigation really in the last fifteen
4:10
Speaker 5: years or so. But this is a more dramatic limit
4:13
Speaker 5: because it effectively just ends any more Alien Towart statute litigation.
4:17
Speaker 6: I think.
4:18
Speaker 2: So the Alien Tort Statute is only thirty three words.
4:21
Speaker 2: I'm going to read it the district courts. You'll have
4:23
Speaker 2: original jurisdiction of any civil action by an alien for
4:27
Speaker 2: a tourt only committed in violation of the law of
4:30
Speaker 2: nations or a treaty of the United States. So if
4:33
Speaker 2: this is a court, you know that's reading the statute
4:37
Speaker 2: and ruling according to the words, Why doesn't that cover
4:41
Speaker 2: what's happening here?
4:43
Speaker 5: Well, a couple of thoughts. One of things the Court
4:45
Speaker 5: notes is that until the nineteen eighties, no one thought
4:49
Speaker 5: the statute provided a cause of action a claim for
4:52
Speaker 5: human rights abuses, And the words that you just read
4:55
Speaker 5: are not really written in terms of a claim statute.
4:58
Speaker 5: All they say is that the court have jurisdiction, that is,
5:01
Speaker 5: that they're available to hear certain kinds of tortue cases.
5:04
Speaker 5: But they don't really provide what we today would call
5:07
Speaker 5: a cause of action, that is a right to seek
5:10
Speaker 5: damages or other relief. And at least in the modern era,
5:13
Speaker 5: courts wait until Congress provides an actual claim statue before
5:18
Speaker 5: it starts giving people the right to suit for damages.
5:21
Speaker 5: But in the alien tort statue cases, courts had been
5:23
Speaker 5: allowing suits for damages, even though I don't think the
5:27
Speaker 5: statute really addresses that. The other thing that Court mentions
5:31
Speaker 5: is that suits for these torts around the world inherently
5:35
Speaker 5: raise foreign policy issues. Sometimes they might promote some good
5:39
Speaker 5: in terms of human rights improvement, but they also sometimes
5:43
Speaker 5: create lots of conflicts with other countries. And the Court
5:46
Speaker 5: thought that if Congress really wants that type of litigation.
5:51
Speaker 5: It needs to address those foreign policy issues more specifically,
5:54
Speaker 5: and just citing a statue from seventeen eighty nine doesn't
5:57
Speaker 5: really show Congress is addressed all the foreign policy trade
6:01
Speaker 5: offs that human rights cases posed today, and so effectively,
6:05
Speaker 5: the Court's just pushing this sover to Carnas.
6:07
Speaker 2: The three liberals dissented from the part of the ruling
6:11
Speaker 2: that limited claims under the alien torte statute, just as
6:15
Speaker 2: Sonya Sotomayor wrote an impassioned descent, saying the majority was
6:19
Speaker 2: throwing out two decades of settled precedent. Quote, the Court's
6:23
Speaker 2: decision today is yet another notch in its belt, unabashedly
6:27
Speaker 2: remaking the law in its preferred image. I mean, only
6:31
Speaker 2: twenty years ago the Supreme Court held the opposite of
6:34
Speaker 2: this decision.
6:35
Speaker 5: There's a two thousand and four decision. It's called Sosa
6:38
Speaker 5: versus Alvar's Machine, and Sodomara's descent certainly understandably emphasizes that
6:43
Speaker 5: decision because the Court there did allow at least some
6:47
Speaker 5: cases to continue proceeding under the alien tort statue. Now,
6:51
Speaker 5: it was a pretty limited holding in Sosa, and the
6:54
Speaker 5: Court said there should never be a particularly robust a
6:58
Speaker 5: set of cases, and it suggests to a variety of
7:00
Speaker 5: limits the court should consider. And since that two thousand
7:05
Speaker 5: and four decision, the Supreme Court has never found a
7:08
Speaker 5: case to satisfy those limits from that two thousand and
7:10
Speaker 5: four case, And so the majority in the Cisco case says,
7:14
Speaker 5: we should just be clear that we're just not going
7:17
Speaker 5: to find a case that satisfies those strict limitations and
7:21
Speaker 5: just let everyone know so they don't waste time litigating,
7:24
Speaker 5: because repeatedly the Court has found reasons to reject those claims,
7:28
Speaker 5: and now it's just doing so more categorical. But I
7:31
Speaker 5: think the descent makes a reasonable point that the Court's
7:34
Speaker 5: not really giving precedential effect to that two thousand and
7:37
Speaker 5: four case. My own view, by the way, you know,
7:39
Speaker 5: what people disagree about this is that the two thousand
7:42
Speaker 5: and four case is probably wrongly decided, and I think
7:44
Speaker 5: the majority believes that to be the case as well.
7:47
Speaker 5: But nevertheless, there's an argument that it was entitled to
7:50
Speaker 5: some presidential weight that the Court is not giving.
7:53
Speaker 2: The Roberts Court has been narrowing the alien towards statute
7:56
Speaker 2: over the years, and I remember the decision in twenty
7:59
Speaker 2: two where a suit accused Nesley and Cargle of aiding
8:04
Speaker 2: and abetting child slavery on the Ivory Coast, and the
8:07
Speaker 2: court ruled there was no cause of action there either.
8:10
Speaker 2: If there's no cause of action, then I mean these
8:12
Speaker 2: people have no place else to sue right or do.
8:16
Speaker 5: That is, you know, one of the concerns about some
8:18
Speaker 5: of these restrictive decisions. There are serious atrocities being committed
8:22
Speaker 5: in various countries. Most of the time there aren't really
8:26
Speaker 5: any available remedies for the victims. They can't typically sue
8:31
Speaker 5: in the place of the human rights abuse. Most other
8:33
Speaker 5: nations don't allow cases like we had been allowing under
8:37
Speaker 5: the Alien Torch Statute. They aren't really international tribunals suited
8:40
Speaker 5: for the task. So some of the courts who like
8:43
Speaker 5: the Alien Toward Statute litigation had said, at least that's
8:47
Speaker 5: some possibility of redress vindication of their human rights, and
8:52
Speaker 5: that's actually a main reason some of the lower courts
8:55
Speaker 5: had been allowing these cases. But as the majority said
8:58
Speaker 5: in Cisco, that might be a noble goal, it's just
9:01
Speaker 5: not clear that Congress has endorsed that particular goal. And
9:05
Speaker 5: normally at least today, if we're going to allow those
9:08
Speaker 5: kinds of important claims, somebody in the political ranches, Congress
9:12
Speaker 5: particularly should actually decide whether that makes sense. And so,
9:17
Speaker 5: you know, the argument of the majority is, if it's
9:19
Speaker 5: really important to vindicate these rights, then people should lobby
9:22
Speaker 5: Congress to try to get another human rights statue. They
9:25
Speaker 5: got one, by the way, in the nineteen nineties.
9:27
Speaker 2: I do want to point out that while the Court's
9:30
Speaker 2: conservatives shut the door on these lawsuits against corporations for
9:35
Speaker 2: human rights abuses abroad, on the same day they open
9:39
Speaker 2: the door to a one billion dollar lawsuit by Exon
9:43
Speaker 2: against a Cuban conglomerate for operating oil and gas assets
9:47
Speaker 2: seized in nineteen sixty in Cuba following the country's communist revolution.
9:52
Speaker 2: Quite a contrast there.
9:54
Speaker 5: Yes, absolutely, in some ways they look like decisions that
9:57
Speaker 5: have been in conflict, in that the c case shuts
10:01
Speaker 5: down international type claims because they're worried about the foreign
10:06
Speaker 5: policy implications. The ex On mobile case, you know, allows
10:10
Speaker 5: pretty aggressive international claims against at least Cuban entities and others.
10:16
Speaker 5: And so how do you reconcile those And one way
10:19
Speaker 5: possibly of reconciling I think the court and the Exon
10:22
Speaker 5: case had the view that Congress and the Executive really
10:26
Speaker 5: did support aggressive legal claims against Cuba and companies, you know,
10:31
Speaker 5: transacting with Cuba, and that's probably to some extent true.
10:34
Speaker 5: You know, the statute in the Exon case is you know,
10:37
Speaker 5: relatively recent one compared to the Alien Torch Statute, and
10:41
Speaker 5: it has aggressive provisions allowing suits against anyone who traffics
10:45
Speaker 5: in property confiscated by the Castro Cuban government. And it
10:50
Speaker 5: does have language allowing suit even against government entity that
10:54
Speaker 5: transact in that confiscated property. So at least the court
10:57
Speaker 5: in the x On case has stronger and clear statutory
11:01
Speaker 5: language I think, to work with in allowing the claims.
11:04
Speaker 5: I actually think it's kind of a pretty close call
11:06
Speaker 5: in my view about the statutory language and the Xon case.
11:09
Speaker 5: So I thought the dissenting justices had some reasonable counter
11:13
Speaker 5: arguments about the statute.
11:15
Speaker 2: I suspect we'll be seeing more of these lawsuits filed
11:17
Speaker 2: in the future now that the court has opened the door.
11:20
Speaker 2: It's been great having you on. Thanks so much, Kurt.
11:23
Speaker 2: That's Professor Curtis Bradley of the University of Chicago Law
11:26
Speaker 2: School coming up next, the court rules that a Rastafarian
11:30
Speaker 2: innate can't sue the prison officials who violated his religious rights.
11:35
Speaker 2: I'm June Grosso and this is Bloomberg.
11:39
Speaker 7: It is undisputed that my client has alleged an assault
11:42
Speaker 7: that is just brazenly illegal. He was at respondent's mercy
11:47
Speaker 7: in federally funded custody when he handed them a copy
11:49
Speaker 7: of controlling precedent holding that RALUPA protected his right to
11:52
Speaker 7: keep his hair long. They threw it away, handcuffed him
11:55
Speaker 7: to a chair, and shaved him bald.
11:57
Speaker 2: Damon Landor is a devout russ to Farian who hadn't
12:01
Speaker 2: cut his hair in two decades following his faith, in
12:05
Speaker 2: which dreadlocks are a sacred symbol. So when he was
12:08
Speaker 2: transferred to a Louisiana prison with just weeks left on
12:12
Speaker 2: his five months sentence, he handed prison guards a copy
12:16
Speaker 2: of an appeals court decision holding that cutting religious prisoner's
12:20
Speaker 2: dreadlocks violated federal law. But a guard threw the ruling
12:24
Speaker 2: into the trash, and despite Landor's please, he was handcuffed
12:29
Speaker 2: to a chair and held down as his knee length
12:32
Speaker 2: dreadlocks were cut and his head shaved.
12:35
Speaker 8: Bald.
12:35
Speaker 2: During oral arguments, the justices condemned Landor's treatment and the
12:40
Speaker 2: blatant disregard of his religious rights. Here's Conservative Justice Amy
12:45
Speaker 2: Coney Barrett.
12:46
Speaker 7: Look, the facts of this case are egregious.
12:48
Speaker 9: So if on the facts we were looking for a
12:51
Speaker 9: case in which there should be money damages, this is it.
12:54
Speaker 2: But it turns out this case wasn't it. In a
12:57
Speaker 2: six to three decision, the courts conservative majority rule that
13:02
Speaker 2: Landor can't sue the guards who cut off his dreadlocks.
13:06
Speaker 2: They decided that inmates can't use their religious land use
13:10
Speaker 2: and Institutionalized Persons Act or Raloopa to sue prison officials
13:15
Speaker 2: for damages for violating their religious rights. The opinion was
13:19
Speaker 2: written by Justice Neil Gorsuch, who telegraphed the conclusion during
13:23
Speaker 2: the arguments.
13:24
Speaker 3: The circuits are unanimously against you and have been for many, many,
13:28
Speaker 3: many years. So saying that something awful's going to happen,
13:32
Speaker 3: it's all.
13:33
Speaker 1: Whatever's happened has happened, right.
13:35
Speaker 2: But the liberal justices disagreed, and in a dissent by
13:39
Speaker 2: Justice Katanji Brown Jackson, they expressed concerns that after this decision,
13:45
Speaker 2: state prison officials will have little incentive to follow the
13:49
Speaker 2: law and respect the religious rights of inmates. My guest
13:53
Speaker 2: is Richard Garnett, a professor at Notre Dame Law School
13:56
Speaker 2: and director of the school's program on Church, State and
13:59
Speaker 2: societ Rick. What's your reaction to this decision and the
14:04
Speaker 2: implications of this decision?
14:07
Speaker 9: The result in this case in the land Or case
14:09
Speaker 9: is not surprising given the way the oral arguments went.
14:14
Speaker 9: It was clear that the justices, or at least a
14:16
Speaker 9: majority of them, were very focused on the federalism issues
14:20
Speaker 9: in this case. And that's what makes this case kind
14:22
Speaker 9: of tricky. It has a religious freedom dimension, for sure,
14:25
Speaker 9: because the facts involve a really shocking violation of a
14:29
Speaker 9: prisoner's religious freedom rights. But there's also this kind of
14:32
Speaker 9: technical constitutional law question about the power of Congress to
14:36
Speaker 9: authorize certain kinds of lawsuits.
14:38
Speaker 1: And so, you know, some of the reactions to the
14:41
Speaker 1: case I think are.
14:42
Speaker 9: Misguided in the sense that I've seen some reports that
14:45
Speaker 9: ogus is just the court not caring about a minority religion.
14:48
Speaker 1: I think that's not the right way to think about it.
14:50
Speaker 9: You know, a group of the justices, the six and
14:52
Speaker 9: the majority here have a pretty consistent vision of federalism,
14:56
Speaker 9: and they believe that there are limits on the federal
14:58
Speaker 9: government's power to author certain kinds of relief against state officials.
15:02
Speaker 9: Now I should confess I filed a brief on the
15:04
Speaker 9: side of the prisoner in this case.
15:06
Speaker 1: In my view, the right answer was that this action
15:09
Speaker 1: was authorized.
15:10
Speaker 9: But the reason the court ruled against him was not
15:12
Speaker 9: because it was unbothered by the egregiousness of this violation,
15:16
Speaker 9: but because they just didn't think the federal government had
15:18
Speaker 9: the power to authorize the suit. So what this means,
15:21
Speaker 9: in my opinion, among other things, is that state governments
15:23
Speaker 9: need to really step up and make sure they provide
15:26
Speaker 9: meaningful relief for prisoners whose religious liberty rights are violated
15:31
Speaker 9: by officials, as mister Landor's clearly were.
15:34
Speaker 2: The LOOPA was designed to protect the religious rights of inmates,
15:39
Speaker 2: So why doesn't it work for this inmate whose religious
15:43
Speaker 2: rights were I mean, everyone agrees clearly and blatantly violated.
15:48
Speaker 9: Yeah, this is and I apologize for getting into the
15:50
Speaker 9: weeds a little bit, but RALOUPA is a special kind
15:52
Speaker 9: of statute. It's authorized by what we call the spending power,
15:57
Speaker 9: which means that it's not so much a direct regulation
16:00
Speaker 9: as it is a deal. The Congress says to the states,
16:03
Speaker 9: if you want this money, then you have to agree
16:06
Speaker 9: to comply with this understanding of religious liberty rights. The
16:10
Speaker 9: wrinkle in this case is that mister Landor wasn't suing
16:13
Speaker 9: the state. He wasn't suing the state prison. He was
16:16
Speaker 9: suing the prison employee in that employee's personal capacity. So
16:21
Speaker 9: you know, you're not suing the prison and you're suing
16:23
Speaker 9: you know, officer Jones. And the thing is, officer Jones
16:26
Speaker 9: never took any federal money, so he didn't make this deal.
16:30
Speaker 1: With the federal government. So according to the court, since officer.
16:33
Speaker 9: Jones that that's not his name, I'm making that up,
16:35
Speaker 9: didn't make the deal with the federal government, that means
16:38
Speaker 9: that the federal statue doesn't authorize a lawsuit against Jones.
16:42
Speaker 9: And it's all based on these kind of you know,
16:44
Speaker 9: first year law school constitutional law debates about the regulatory
16:48
Speaker 9: powers of Congress and how much power Congress.
16:51
Speaker 1: Has to attach strings to the money it spends. And
16:54
Speaker 1: there's a long.
16:54
Speaker 9: Tradition of the court saying, you know, there are limits
16:56
Speaker 9: on the strings you can attach to money. So again,
16:59
Speaker 9: nothing deny eyes that the officers behaved badly and that
17:02
Speaker 9: mister Landor's religious freedom was violated. It's that the particular
17:06
Speaker 9: relief that Landor was seeking the money damage is lawsuit
17:09
Speaker 9: against an individual, couldn't be authorized by the statue.
17:13
Speaker 2: So the majority said that state employees didn't consent to
17:17
Speaker 2: face lawsuits in their personal capacities when Congress passed RELOOPA
17:21
Speaker 2: as a practical matter, when would an employee consent to
17:25
Speaker 2: be sued? Just as Katanji Brown Jackson in Descent said,
17:29
Speaker 2: today's decision magically transforms a federal statute into an invitation
17:34
Speaker 2: to be accepted or declined, deemed binding only if each
17:38
Speaker 2: particular defendant has explicitly agreed to be penalized. I mean,
17:42
Speaker 2: to the average person, the descent makes sense.
17:45
Speaker 1: Well, and again I was on that side.
17:47
Speaker 9: In the end, I do think she oversimplifies the federalism issue.
17:50
Speaker 9: There's plenty of precedent to the effect that these regulatory
17:53
Speaker 9: spending arrangements do function kind of like a contract.
17:57
Speaker 1: That said, in.
17:58
Speaker 9: My view, the better ruling would have been to say
18:01
Speaker 9: that when the state entered into this effectively contract with
18:05
Speaker 9: the federal government and took on the burdens to respect
18:08
Speaker 9: the religious liberty of inmates. That because these folks are
18:11
Speaker 9: the employees of the state, those folks kind of take
18:14
Speaker 9: employment subject to the requirements that are laid on their employers,
18:19
Speaker 9: and that includes what the statute calls appropriate relief, which,
18:23
Speaker 9: if you really want to get in the weed, that's
18:24
Speaker 9: kind of what this case really came down to, is
18:26
Speaker 9: what counts is appropriate relief. So a concern that Justice
18:29
Speaker 9: Jackson raised and that I share, even though I think
18:32
Speaker 9: she oversimplifies a bit, is that, you know, the incentives
18:36
Speaker 9: on state prison employees to respect religious inmates rights, those
18:41
Speaker 9: incentives are going to be muted a bit if they're
18:43
Speaker 9: not subject to damages for you know, egregious violations. I mean,
18:47
Speaker 9: this wasn't kind of a judgment call reasonable minds can
18:50
Speaker 9: disagree kind of thing. It's very clear on the facts
18:52
Speaker 9: of this case that mister Landor's rights were again outrageously violated.
18:56
Speaker 9: And so there's a concern, and this is one of
18:58
Speaker 9: the concerns that Justice Jackson raised and that I share,
19:01
Speaker 9: is that the effectiveness of the statute, which I mean,
19:04
Speaker 9: as you said earlier, to the point of the whole
19:06
Speaker 9: statue was to protect prisoners religious freedom rights is going
19:09
Speaker 9: to be weakened or undermined if that kind of what
19:11
Speaker 9: do you want to call it stick is pulled away?
19:14
Speaker 2: Could Landor have sued the state and the state prison system.
19:18
Speaker 9: Yeah, so this is about a particular cause of action,
19:21
Speaker 9: and you know, there are almost certainly other ones that
19:24
Speaker 9: in theory could have been available to him. And you know, again,
19:27
Speaker 9: my hope is that some states will respond by making
19:30
Speaker 9: sure that they create additional causes of action for prisoners
19:34
Speaker 9: like this. But you know, there's a tendency, we're all
19:36
Speaker 9: familiar with it that it's easy to kind of lose
19:37
Speaker 9: sight of prisoners and their rights.
19:40
Speaker 1: You know, out of sight, out of mind, we tend
19:42
Speaker 1: to other our prisoners.
19:43
Speaker 9: But it isn't the case that this decision means that
19:46
Speaker 9: Landor would never have any relief for this kind of violation.
19:49
Speaker 9: And the decision is limited to relief under this particular statue.
19:52
Speaker 2: The Court in twenty twenty allowed Muslim men to sue
19:56
Speaker 2: over their inclusion on the FBI's no fly list under
20:00
Speaker 2: a sister statute, the Religious Freedom Restoration Act. Explain why
20:05
Speaker 2: the same reasoning didn't apply here.
20:07
Speaker 9: Yeah, this is an important distinction, or at least it
20:10
Speaker 9: was to the course, So the Religious Freedom Restoration Act
20:13
Speaker 9: is not a spending power statute. It's a statute that
20:16
Speaker 9: rests on Congress's power to enforce the Fourteenth Amendment, and
20:21
Speaker 9: it's a statute that only applies to the federal government.
20:24
Speaker 9: RALUPA is, on the one hand, much broader. It applies
20:27
Speaker 9: to not only the federal government but the states. On
20:30
Speaker 9: the other hand, it's also narrower because the basis for it,
20:33
Speaker 9: the justification for the RELOOPA statute is this spending power,
20:37
Speaker 9: and the lines of doctrine about Congress's power under the
20:40
Speaker 9: fourteenth Amendment are just different from the lines of precedent
20:44
Speaker 9: about Congress's power under the spending clause. And again, I
20:46
Speaker 9: know this is really the kind of thing that makes
20:48
Speaker 9: normal people's eyes lays over, So I apologize to anybody
20:51
Speaker 9: who's listening to it. But for legal purposes, it really
20:53
Speaker 9: does make a difference which power Congress is using. And
20:57
Speaker 9: with RALUPA, because it was only applying to the federal government,
21:00
Speaker 9: these federalism concerns are not in play. Congress is perfectly
21:04
Speaker 9: within its rights to subject the federal government to various
21:07
Speaker 9: standards of liability and to create causes of action against
21:09
Speaker 9: the federal government. But because we have a federalist system,
21:12
Speaker 9: it's more complicated when Congress imposes standards on the states.
21:15
Speaker 1: And that's what explains the difference.
21:16
Speaker 2: Can you explain why this would be a you know,
21:19
Speaker 2: there was an ideological split, why it would be a
21:21
Speaker 2: conservative liberal split on this.
21:24
Speaker 9: Again, this is generalizing with these labels and so on,
21:26
Speaker 9: but it tends to be the case that the conservatives
21:29
Speaker 9: are more interested in federalism, and it tends to be
21:31
Speaker 9: the case that the liberals are more friendly to Congress's.
21:36
Speaker 1: Power to create causes of action.
21:38
Speaker 9: What divided the court was not the importance of religious freedom.
21:41
Speaker 9: You know, a couple of years ago, we had a
21:43
Speaker 9: case involving a Muslim prisoner who wanted to grow a beard,
21:46
Speaker 9: and it was nine to zero. Everybody agreed on the
21:48
Speaker 9: importance of that under LUPA, but there was no question
21:51
Speaker 9: about federalism in that case because the cause of action
21:54
Speaker 9: wasn't against a person in his individual capacity, it was
21:57
Speaker 9: against the prison system. So the justices, you know, whether
22:00
Speaker 9: they're appointed by Democrats or Republicans, they all agree that
22:04
Speaker 9: the religious freedom rights of prisoners are important, but divided
22:06
Speaker 9: them here were these issues that divide them in lots
22:09
Speaker 9: of cases, debates about federal power and debates about the
22:12
Speaker 9: ability to create causes of action.
22:14
Speaker 2: There's been a string of victories for religious liberties at
22:17
Speaker 2: the Supreme Court. I mean, when was the last time
22:21
Speaker 2: that there was a defeat for religious interests at the Court.
22:26
Speaker 1: I'm thinking out loud here. It is the first in
22:29
Speaker 1: a while.
22:29
Speaker 9: So certainly religious freedom claimants have done well with this court.
22:34
Speaker 3: Now.
22:34
Speaker 9: I suppose some might say, for example, that when a
22:37
Speaker 9: claimant filed a lawsuit against the War Memorial Cross in
22:41
Speaker 9: the American Legion case, that they were seeking to vindicate
22:43
Speaker 9: their religious freedom and they lost. But I think it's
22:46
Speaker 9: certainly true that this court has been friendly to religious
22:48
Speaker 9: freedom claims. But you know, I can't think of any
22:51
Speaker 9: of those claims that involved the same federalism concerns that
22:54
Speaker 9: this one did. Probably the last case I can think
22:56
Speaker 9: of whether religious freedom claimants lost was Trump versus, which
23:00
Speaker 9: was a challenge to this so called Muslim band that
23:02
Speaker 9: the Trump administration had put into place early in its
23:05
Speaker 9: first administration.
23:06
Speaker 2: And that was back in twenty eighteen. So certainly, a
23:09
Speaker 2: long string of victories for religious claimants, eight years of
23:14
Speaker 2: expansion of religious rights. So he's great to get your insights, Rick,
23:18
Speaker 2: thanks so much. That's Professor Richard Garnett of Notre Dame
23:22
Speaker 2: Law School coming up next on the Bloomberg Law Show.
23:25
Speaker 2: In another six to three decision this week, the court
23:28
Speaker 2: reinstated the conviction of the man found to have killed
23:32
Speaker 2: Eton Pates, the six year old boy whose disappearance in
23:36
Speaker 2: nineteen seventy nine changed the way the public viewed missing
23:40
Speaker 2: children's cases. And remember, you can always get the latest
23:43
Speaker 2: legal news by listening to our Bloomberg Law podcasts. You
23:47
Speaker 2: can find them on Apple Podcasts, Spotify and at Bloomberg
23:51
Speaker 2: dot com, Slash podcast, Slash Law. I'm June Grosso and
23:55
Speaker 2: you're listening to Bloomberg. The smiling face of a six
24:00
Speaker 2: year old boy stared back from countless milk cartons after
24:04
Speaker 2: he disappeared on the way to school in New York
24:07
Speaker 2: City in nineteen seventy nine. The disappearance of Aton Pates
24:12
Speaker 2: was one of the country's most notorious missing child cases.
24:16
Speaker 2: It sparked a nationwide campaign to find missing children and
24:20
Speaker 2: change the way law enforcement handles the cases. Pates was
24:24
Speaker 2: never found, and it took nearly forty years before the
24:27
Speaker 2: arrest and conviction of Pablo Hernandez for his kidnapping and murder.
24:32
Speaker 2: Aton's father, Stanley Pates, said he finally got the answers
24:37
Speaker 2: he'd been searching for.
24:39
Speaker 8: I needed to know what happened to my son, and
24:44
Speaker 8: this great prosecution team finally proved it.
24:48
Speaker 2: But then there were the appeals. New York appellate courts
24:51
Speaker 2: affirmed the conviction, but last year the Second Circuit, a
24:55
Speaker 2: federal appellate court, reversed and ordered a new trial for
24:59
Speaker 2: Hernandez as because of the way the trial judge had
25:02
Speaker 2: answered a question from the jury. But this week another reversal,
25:06
Speaker 2: this time from the Supreme Court, reversing the Second Circuit
25:10
Speaker 2: and reinstating Hernandez's conviction for the kidnapping and murder of
25:15
Speaker 2: Aton Pates. My guest his former Manhattan prosecutor and criminal
25:20
Speaker 2: defense attorney, Paul Callen. Paul, the disappearance of Aton Pates
25:25
Speaker 2: became national news, and he really became the poster child
25:30
Speaker 2: for missing children.
25:32
Speaker 8: You're absolutely right about that.
25:33
Speaker 6: As a matter of fact, I think this case has
25:36
Speaker 6: altered child rearing in the United States permanently. You know,
25:40
Speaker 6: it used to be mom would send kids out the
25:42
Speaker 6: back door and say go play, come back for supper.
25:45
Speaker 8: Now.
25:46
Speaker 6: The parents follow them around, follow them to the bus stop.
25:48
Speaker 6: They're all terrified. The kids are going to be kidnapped.
25:51
Speaker 6: And it all started with Eton Pates who was going
25:54
Speaker 6: to catch a bus to his school in Soho in
25:57
Speaker 6: New York, and he was kidnapped and apparently murdered. And
26:01
Speaker 6: only recently have we had a final resolution of the
26:04
Speaker 6: case in terms of who committed the murder. An individual
26:08
Speaker 6: named Hernandez, whose conviction was now re affirmed by the
26:11
Speaker 6: Supreme Court.
26:12
Speaker 2: Tell us about the confession because there were some troubling
26:15
Speaker 2: things about the confession.
26:16
Speaker 8: Yes, there were.
26:17
Speaker 6: His brother in law reported to the police that his
26:22
Speaker 6: quote low IQ relative has confessed to the murder, and
26:26
Speaker 6: Camden County, New Jersey, police pick him up and they
26:30
Speaker 6: start questioning him, but they don't give him as Miranda warnings.
26:33
Speaker 6: He confesses that he was working in a bodega in
26:36
Speaker 6: Soho when Eton Pates came in to buy a drink
26:40
Speaker 6: as he was on his way to the bus stop,
26:42
Speaker 6: and that he murdered eton Pates and disposed of the body,
26:46
Speaker 6: presumably throwing the body into a dumpster behind the Delhi.
26:50
Speaker 6: Full confession to the murder. The police, then, who have
26:53
Speaker 6: not given him his Miranda warnings, now say we should
26:57
Speaker 6: give him the Miranda warnings and videotape this confession. And
27:01
Speaker 6: that's exactly what they do. They give him Miranda warnings,
27:04
Speaker 6: videotape the confession, and then they call the District Attorney's
27:07
Speaker 6: office in New York and say, you better come out here.
27:10
Speaker 6: We have somebody confessing to the murder of Eton Pates. Now,
27:13
Speaker 6: this was a case that had gone cold for a
27:15
Speaker 6: long time, so obviously the Manhattan DIA's Office was very
27:19
Speaker 6: interested in that. Apparently, while all of this is going on,
27:23
Speaker 6: Bernandez also talks to his wife and his daughter Rosemary
27:27
Speaker 6: and Becky, and he confesses to both of them that
27:30
Speaker 6: he's in fact the person who killed eton Pates. He's
27:34
Speaker 6: then picked up by the Manhattan DIA's office taken back
27:37
Speaker 6: into New York where he confesses again to the murder,
27:41
Speaker 6: this time again on videotape. So we now have two
27:43
Speaker 6: videotaped confessions. Later on, during pre trial proceedings, he meets
27:48
Speaker 6: with a psychiatrist. He confesses to the psychiatrist that he's
27:52
Speaker 6: the murderer, and while giving that confession, he also tells
27:56
Speaker 6: the psychiatrist that he admitted this to a prayer group
27:59
Speaker 6: at one point over the last twenty years. So by
28:01
Speaker 6: my count I think he's confessed now seven times to
28:06
Speaker 6: the murder.
28:07
Speaker 2: A question the jury posed to the judge during deliberations
28:10
Speaker 2: became a defining issue for the second circuit. So tell
28:14
Speaker 2: us about that question.
28:15
Speaker 6: So the case goes to trial in New York. The
28:18
Speaker 6: first trial, by the way, ends in a hung jury.
28:21
Speaker 6: He's retried, and the second jury comes back with a
28:25
Speaker 6: jury question, and the jury question is this, if he
28:29
Speaker 6: was not given his Miranda warnings properly and therefore did
28:34
Speaker 6: not voluntarily confess, is it okay for us to consider
28:39
Speaker 6: the other confessions that occurred after this?
28:42
Speaker 8: In substance? That was the question that was asked by
28:44
Speaker 8: the jury.
28:45
Speaker 6: The way they phrased it was, the jury said, do
28:47
Speaker 6: we have to disregard the subsequent confessions if the first
28:52
Speaker 6: confession was not voluntary?
28:54
Speaker 8: The judge says.
28:56
Speaker 6: One word, no, no, you don't have to disregard the
29:00
Speaker 6: subsequent confessions. And after that, the jury deliberates for another
29:05
Speaker 6: week and they find Hernandez guilty of the kidnapping and
29:09
Speaker 6: murder of Eton Pates.
29:11
Speaker 2: So through the state the state appellate courts affirmed the conviction,
29:14
Speaker 2: and then the federal appellate Court, the Second Circuit, in
29:18
Speaker 2: one hundred page opinion last year, reversed and ordered that
29:22
Speaker 2: he get a new trial.
29:24
Speaker 6: The decision was based on the judge's instructions to the
29:29
Speaker 6: jury when they came back with a question, that question
29:32
Speaker 6: that I just repeated, do we have to disregard the
29:34
Speaker 6: subsequent confessions where the judge.
29:37
Speaker 8: Just said no.
29:38
Speaker 6: Bear in mind that the Appellate Division in New York, the
29:41
Speaker 6: state Court, they looked at it and they said, you
29:43
Speaker 6: know something, it's all right. The question of whether a
29:46
Speaker 6: confession is voluntary or is generally decided by a judge.
29:49
Speaker 6: It's not usually decided by a jury. And so the
29:52
Speaker 6: Appellate Division said, under New York law, the way this
29:56
Speaker 6: confession was evaluated was perfectly proper. So then they go
30:00
Speaker 6: into federal court with this, and the Second Circuit looks
30:04
Speaker 6: at it and they say, well, we think there's a
30:07
Speaker 6: problem here. The judge should have explained in more detail,
30:11
Speaker 6: other than saying no to the jury, that there could
30:15
Speaker 6: be a problem with the confession, that there was insufficient
30:18
Speaker 6: what we call attenuation between the initial confession and the
30:23
Speaker 6: subsequent confession, which also gets us back to another rule,
30:27
Speaker 6: which is the Mitchell versus Siebert rule that came about
30:32
Speaker 6: when the cops were misusing Miranda warnings, and what they
30:36
Speaker 6: would do is they would bring you into the station,
30:39
Speaker 6: get you to confess to a crime, and after you
30:42
Speaker 6: gave the complete detailed confession, they'd walk out of the
30:45
Speaker 6: room and then they'd come back in and give you
30:47
Speaker 6: your Miranda warnings and say, by the way, that confession,
30:51
Speaker 6: can you repeat that please for the record, And now
30:53
Speaker 6: they videotape your confession. Now, when the federal courts looked
30:56
Speaker 6: at this, they said, this is completely improper. It's an
30:59
Speaker 6: attempt to get around the Miranda warnings. And once somebody
31:03
Speaker 6: has been possibly coerced into giving a confession because they
31:07
Speaker 6: haven't heard the Miranda warnings, of course they're going to
31:09
Speaker 6: repeat the confession. So this Missouri Versus Sebert case said, basically,
31:14
Speaker 6: this is an improper method of administering the Miranda warnings
31:18
Speaker 6: and if it's done deliberately by the police, the confession
31:20
Speaker 6: has to be thrown out. So this comes up now
31:23
Speaker 6: in the Hernandez case, because does that violate the Missouri
31:27
Speaker 6: versus Sebert rule. Well, the court in New York said, no,
31:31
Speaker 6: there was no violation of that in our opinion. But
31:35
Speaker 6: when it goes over to the federal court, the federal
31:37
Speaker 6: court says, yes, there was a violation of that.
31:40
Speaker 2: So the Second Circuit reversed the conviction and ordered a
31:44
Speaker 2: new trial for Hernandez. But the Manhattan District Attorney's office
31:49
Speaker 2: took that decision to the highest court.
31:51
Speaker 6: The state, and this is very unusual, goes to the
31:54
Speaker 6: Supreme Court to try to get a conviction reinstated. You know,
31:57
Speaker 6: usually you see a defendant has been convicted going to
32:00
Speaker 6: the Supreme Court to get his case thrown out.
32:02
Speaker 8: This is the opposite. The prosecutor's looking for justice now.
32:05
Speaker 8: So now when they go to.
32:07
Speaker 6: The Supreme Court, the Supreme Court says, no, there was
32:10
Speaker 6: no violation here because the state looked at it under
32:14
Speaker 6: state law. The administration of Miranda Warnings was done properly.
32:20
Speaker 6: There was proper attenuation, and that's a question for the judge,
32:23
Speaker 6: not the jury. The Seber case never said anything about
32:28
Speaker 6: jury instructions. So this is an overreach by the Second Circuit,
32:32
Speaker 6: and there was no right for a habeas corpus to
32:34
Speaker 6: be brought here, So we're reinstating the conviction.
32:37
Speaker 2: Paul, did the Supreme Court reverse because the Second Circuit
32:41
Speaker 2: didn't properly follow federal law or because state law should
32:45
Speaker 2: have applied here?
32:46
Speaker 6: Well, it's a complex question because they're saying that in
32:50
Speaker 6: this situation, the state had the right to evaluate whether
32:56
Speaker 6: there was a proper attenuation of the confession, in other words,
33:01
Speaker 6: whether the secondary administration of miranda warnings by the Manhattan
33:06
Speaker 6: DA and by the police violated New York law. And
33:11
Speaker 6: New York said, no, that doesn't violate our law. And
33:14
Speaker 6: in New York a jury can sometimes decide whether a
33:18
Speaker 6: confession is voluntary or not under federal law, that's generally
33:22
Speaker 6: a judge determination that's been made. So the Supreme Court,
33:27
Speaker 6: looking at this overall, said, well, we've looked at this
33:31
Speaker 6: and there's no violation of federal law as it exists.
33:36
Speaker 6: And if there was a violation of state law, the
33:38
Speaker 6: state has already made a decision here that there was
33:42
Speaker 6: no violation of New York state law. So the federal
33:45
Speaker 6: government has no business interfering in how the State of
33:48
Speaker 6: New York interprets the administration of the Miranda warnings and
33:52
Speaker 6: the confession is a voluntary confession.
33:55
Speaker 8: So it's kind of a.
33:56
Speaker 6: Question of how you evaluate due process under state and
33:59
Speaker 6: federal law on whether there's a conflict between the sovereign entities.
34:04
Speaker 6: And here the Supreme Court was saying, you know, there
34:06
Speaker 6: are certain things that we leave to the state, and
34:09
Speaker 6: the Federal Habeas Corpus Act says we should leave most
34:13
Speaker 6: of those things alone unless it's an absolutely egregious violation
34:18
Speaker 6: of somebody's constitutional rights. And let's step back and look
34:22
Speaker 6: at this case.
34:23
Speaker 8: Tune.
34:23
Speaker 6: The guy confessed seven times to the murder, all right,
34:27
Speaker 6: So I think the Supreme Court was looking at it saying, well,
34:31
Speaker 6: you know, we're not worried about whether we have the
34:33
Speaker 6: right guy or not. We're just looking at some technicalities here.
34:37
Speaker 6: And the New York courts looked at those technicalities and said,
34:41
Speaker 6: there's no violation of New York law here, so we're
34:43
Speaker 6: not going to set it aside because there's no violation
34:46
Speaker 6: of federal law.
34:47
Speaker 2: I mean, the Second Circuit basically wanted the judge to
34:50
Speaker 2: start explaining to the jury a concurring opinion by Justice
34:54
Speaker 2: Kennedy in a case from more than twenty years ago.
34:57
Speaker 2: I mean, it just seemed ridiculous to put in legal terms.
35:00
Speaker 8: That's exactly what the Second Circuit said.
35:04
Speaker 6: And by the way, people should know, this is what's
35:06
Speaker 6: called a per curiam decision by the Supreme Court, which
35:10
Speaker 6: means a decision by the court. We don't know who
35:12
Speaker 6: authored this opinion, but we do know that the three
35:16
Speaker 6: liberal justices on the court voted against.
35:18
Speaker 8: So it was a six' to three decision by the.
35:20
Speaker 2: Court nothing from the liberals about why they were dissenting
35:24
Speaker 2: on this.
35:25
Speaker 6: Very, unusual because you, know these per curiam decisions are
35:28
Speaker 6: usually very very, short but this WAS i think at eleven, page,
35:31
Speaker 6: yeah very very detailed decision by the. Court and you
35:34
Speaker 6: would think that the three justices who were dissenting would
35:38
Speaker 6: have weighed in as to why they disagreed with the
35:41
Speaker 6: other six members of the.
35:42
Speaker 8: Court but, no they said. Nothing they just said we.
35:44
Speaker 6: Dissent SO i don't know what the basis of their
35:47
Speaker 6: descent would, be and we'll never know because this case
35:50
Speaker 6: is for all practical purposes. OVER i, mean it'll go
35:53
Speaker 6: back to The State court and the sentence will be
35:55
Speaker 6: reimposed and that'll be the end of.
35:56
Speaker 2: It and Aton pate, says father told The New York
35:59
Speaker 2: Times times that The Supreme court decision gave him a
36:02
Speaker 2: sense of relief that he wouldn't have to go through
36:05
Speaker 2: a third trial and relive those memories and the loss
36:09
Speaker 2: of his, son and this time without his, wife who
36:12
Speaker 2: died six years. Ago so truly the end of such
36:15
Speaker 2: a sad. Case thanks for your, Insights. Paul that's Former
36:19
Speaker 2: manhattan prosecutor and criminal defense Attorney Paul callan of counsel
36:23
Speaker 2: At aidelman And. Adelman and that's it for this edition
36:26
Speaker 2: Of The Bloomberg Law. Show remember you can always get
36:29
Speaker 2: the latest legal news on Our Bloomberg Law. Podcast you
36:32
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36:36
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