July 23, 2025 • 31 mins
Former New York prosecutor and criminal defense attorney Paul Callan, Of Counsel at Edelman & Edelman, discusses the Second Circuit Court of Appeals reversing the murder and kidnapping conviction in the Etan Patz case. Elections law expert Richard Briffault, a professor at Columbia Law School, discusses Texas Republicans plans to redistrict to gain more seats in the midterms. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
The smiling face of the six year old boy who
disappeared on his way to school stared back from countless
milk cartons in the nineteen eighties. The disappearance of Eton
Pates in New York City in nineteen seventy nine was
(00:23):
one of the nation's most notorious missing child cases. There
was a decade's long, haunting search for answers to his
disappearance that put a national focus on missing children, made
anxious parents more protective of their children, and changed the
way law enforcement handled missing children cases. And then, more
(00:43):
than thirty years after his disappearance, police arrested Pedro Hernandez,
who worked at a convenience store in Eton's neighborhood. Hernandez confessed,
and after one jury deadlocked, a second jury convicted Hernandez
of murder and kidnapping.
Speaker 2 (01:00):
I needed to know what happened to my son, and
this great prosecution team finally proved it.
Speaker 1 (01:09):
And now, forty six years after Eton Pates's disappearance, a
New York federal appeals court has resurrected the case. The
second Circuit has reversed Hernandez's conviction and ordered that he
be given a new trial or released, saying the trial
judge gave clearly wrong instructions to the jury. The Manhattan
(01:30):
District Attorney, Alvin Bragg will make the decision about whether
to retry Hernandez or let him go free. My guest
is Paul Callen, a former New York City prosecutor and
criminal defense attorney. He's now of counsel at Edelman and Edelman.
Paul eton Pates's disappearance has had reverberations in so many areas.
Speaker 3 (01:52):
The Eton Pates case has influenced child rearing in America
for almost a quarter of a century. Mothers don't let
their kids go to school if they're in the first
grade unless they're accompanied. Helicopter parenting. I think came along
in a large degree because of the fear that's something
(02:13):
like what happened to Eton Pates would happen to a child.
So it's had a big influence this case on child
rearing in the United States.
Speaker 1 (02:22):
He was one of the first missing children to be
on milk cartons.
Speaker 3 (02:26):
Yes he was, and I think a whole generation of
kids probably grew up seeing him on the side of
milk carts as they sat having their cheerios in the morning,
wondering where eton Pates was and would he ever be found.
So the whole country was mesmerized by this case, and
I think it's kind of shocking that it got reversed
when they finally say they got the guy who did it.
(02:46):
And so it's a fascinating case and an interesting case.
Speaker 1 (02:49):
So his body was never found. As I understand it,
there's no physical evidence that links Hernandez to the crime.
Was it all based on a confession?
Speaker 3 (02:59):
Yeah, there was no physical evidence whatsoever. And there literally
were thousands of detective hours and FBI hours devoted to
searching for his body. They even had cadaver sniffing dogs
that went into basements in the area where he disappeared,
but they were never able to come up with a
piece of physical evidence. This is a case based entirely
(03:20):
on a confession.
Speaker 1 (03:22):
And the appeals court reversal is all about the confession.
So tell us about that.
Speaker 3 (03:28):
Yes, and remember this is the second trial that he
was convicted at. At the first trial, the jury also
in that case had a problem with the confession and
there was a single holdout and it resulted in a
hung jury, and then the Manhattandia decided to retry the case,
and so now we're in the second trial. And during
(03:49):
that second trial, the jury's having major problems with the confession.
And this is the reason they're having a big problem
with the confession. When he confessedes Pedro Hernandez confesses he's
in New Jersey. He's in Camden, New Jersey, and New
York detectives go to New Jersey and they put him
in an eight by ten foot room with no windows
in it, and they begin to ask him questions about
(04:11):
the disappearance of the Eton Pates. They did this because
they got a tip from one of his family members
that maybe he was involved in the disappearance of the
pates in nineteen seventy nine. And he's questioned intensively by
New York City detectives without Miranda warnings for a period
of approximately six hours. And during that time period they
(04:34):
even bring him drugs because he said he had left
his medications at home, and they send the detective to
his house to pick up a bottle of pills along
with fentanyl patches, and a fentanyl patch is put on
him as well as he's allowed to take the pills,
and the confession continues. There's a camera mounted in the
ceiling of the eight by ten foot windowless room, and
(04:57):
there's apparently a Manhattan Assiste District attorney watching the questioning
from a remote location, and at the very end of
that time period, he confesses to having killed Eton Pates,
putting his body in a garbage bag and then throwing
it in the trash. And he says that he encountered
Pates outside of a bodega that he Hernandez worked at
(05:18):
or for the Masota, and brought him inside and murdered him.
The confession then is repeated later on when he's brought
back to Manhattan to the assistant district attorney that in
fact was watching remotely when the first confession was given,
and this time he's given his Miranda warnings. At the
time of the initial confession, he's never given Miranda warnings
(05:41):
by the police. They say he was not in custody,
despite the fact that he's in an eight x ten
windowless room for six hours being questioned by a team
of detectives. So problems with those confessions are the central
reason that the United States Federal Court has reversed the
conviction liberations.
Speaker 1 (06:00):
The jurors sent out a note to the judge asking
whether they should disregard the later recorded confessions if they
found that his first confession off camera wasn't voluntary, And
the Second Circuit said, the judge gave them the wrong answer.
Speaker 3 (06:17):
Yes, that's exactly correct. What the note said was, if
we find that the initial confession that was given in
New Jersey was not voluntary, can we still consider the
subsequent confessions that were made when he was brought back
to New York. And essentially the court said, yes, you
can consider the subsequent confessions. So they went on then
(06:40):
to look at the subsequent confessions which occurred after Miranda warnings,
and he incriminated himself in those confessions as well. So
the conviction was based on those confessions.
Speaker 1 (06:50):
And why did the Second Circuit conclude that the judge's
answer or decision was wrong.
Speaker 3 (06:57):
Well, there's a case called Missouri is Sebird that is
the central case that the court refers to. And back
when the Miranda decision came down, the cops had come
up with a workaround. And here's the workaround. Let's take
the person into custody and get a confession out of
(07:17):
the person and then give him Miranda warnings and ask
him to just repeat what he had said in the
initial confession. And this became a widespread technique that was
used across the country. Eventually, the federal courts had to
step in, including the Supreme Court, to say, no, this
is completely improper. You can't do a confession without Miranda
(07:40):
warnings and then subsequently give the warnings and ask the
person to repeat what you just said. And that's this
Missouri versus Sibird case. And the Circuit Court here Second
Circuit said no, they ignored that case. They didn't rule
properly on that case. There wasn't a significant what they
call attenuation between the initial confession which had no Miranda
(08:03):
warnings and the subsequent confessions when the Miranda warnings were given.
The Seber case basically says that there has to be
an attenuation of a distance between the two interrogations if
you're going to just administer the Miranda warnings belatedly. So
that wasn't done in this case, and for that reason
the conviction was overturned.
Speaker 1 (08:24):
I'm just curious about in real life, so we hear
the Miranda warnings in TV shows and movies over and
over again. Most people can recite them. Does it really
make a difference to someone in custody if they hear
those Miranda warnings?
Speaker 3 (08:41):
To tell you the truth, June, I don't think so.
And you know, when I started out my career as
an assistant district attorney in New York City, we used
to ride homicide cases, meaning we would go out to
the scene of the crime and administer Miranda warnings to
the suspect. We had a stenographer with us and it
would all be taken down, but frankly, we didn't know
(09:01):
what went on, what really went on before we got there.
Now the police would say we administered warnings to him
before the DA arrived and took the formal statement, but
who knows what went on. I mean, it's only the
police in the room with the suspect, and the atmosphere
is very different before the lawyer arrives on the scene.
But my experience was that the Miranda warnings had become
(09:22):
so pro forma and all of the potential defendants in
criminal cases know the Miranda warnings, so they're not getting
any new information, and if their intent on confessing, they
confess without asking for a lawyer. You know, it's really
only the sort of educated professionals and mobsters who ask
for lawyers, not day to day violent criminals.
Speaker 1 (09:43):
So now the second Circuit said that either free Hernandez
or put him on trial for a third time within
a quote reasonable period. Talk about the obstacles of trying
him again, Well.
Speaker 3 (09:57):
They're going to be up against exactly the same obstacles
as the first time around, because when I looked into
the record of this case, remember this Appellet decision that
was issued by the federal courts, fifty one pages in length.
They recount in detail all of the strange things that
happened during this interrogation. He was found by several experts
to be a schizophrenic suffering from bipolar disease who was
(10:21):
also using fentanyl and other drugs. This is all taking
place when he's being interrogated, by the way that he
was suffering from these conditions and using the drugs which
were supplied by the police. So in the absence of
new evidence that would physically link him to the crime,
I think you're very much in a situation. Will you
be looking at another hung jury or maybe even an
(10:44):
acquittal on a retrial Now, the DA in the last
case was Cyrus Vance, who decided to proceed with this case.
And you have a new DA now, Alvin Bragg. And
I'm not so sure that Alvin Bragg's going to want
to get involved in the Eton Pates case just because
of the problems with the evidence and something else. There
were at least two other suspects who were child abusers,
(11:08):
who were thought to be in the vicinity of the
crime and who were intensively investigated, and with the exception
of the confession, the case against them was as strong
as the case is against Hernandez. So I'm doubting that
he will get retried. But of course there might be
a public outcry. So it's always hard to decide by
a DA whether to proceed or not in such a
high profile case.
Speaker 1 (11:29):
This is such a high profile case and a lot
of people will be dismayed if Hernandez just walks out
of prison. That's something that the DA has to consider too.
Speaker 3 (11:42):
Yes, I agree with you completely. There there'll be public
outrage if Hernandez is allowed to walk. And you know, frankly,
when you're a DA also you're saying, my god, will
I be releasing a child molestor and murderer who might
in fact hurt other people. Maybe it's worth another try
to try him again, But I think really they're going
(12:03):
to be up against a very, very difficult situation if
they attempt to retry this case.
Speaker 1 (12:08):
And Paul, how unusual is it for a federal appellate
court to reverse a state court proceeding. I mean, this
was a petition for a habeas relief.
Speaker 3 (12:18):
It's very, very unusual for it to happen. And the
reason for that is that these cases, before they get
to federal court, they've usually been looked at by at
least two other appellate court levels. On the state court
in New York, you'd go to the Appellate Division, and
you'd go to the Court of Appeals. And by the
(12:38):
time you bring a habeas action, which is what it's
called when the Feds get involved in looking at a
state case for constitutional violations, you've got a record that's
been carefully examined by a lot of judges who have
found that the trial was fair and there were no
constitutional violations. And the standard for a habeas relief is
(13:00):
very very high. You have to show you that there
was absolutely no reason to support the state's determination not
to set aside the conviction. There's a very very high
standard displaced on the defendant to prove his innocence in
a federal habeast action. So it's very rare that you
win this kind of relief, especially in a high profile case.
Speaker 1 (13:24):
And this stunning appeals court reversal came just over a
year after another high profile case tried during Cyrus Vance's
tenure was also reversed on appeal in another stunning decision,
and that was the Harvey Weinstein case, when an appeals
court found that the trial judge there shouldn't have allowed
(13:45):
prosecutors to call witnesses who accused Weinstein of sexual abuse
in incidents that were not part of the charges.
Speaker 3 (13:54):
You have to say that these judges in New York
have been quite brave. You have the Harvey Weinstein case,
which burned up the headlines across the country when he
was convicted, and they reversed his conviction, and now, of
course you have this case. Eton Pates is the poster
child of you know, a child being kidnapped and abused,
(14:16):
and for the appellate court to have reversed both of
these cases is a very brave move. By those courts,
and I think it's a tribute to them that they
were carefully applying the law as it is, despite the
fact that they're probably going to be criticized publicly for
having done so. But I think, you know, the evidence
(14:37):
was clear in this case, and I also think in
the Weinstein case that a reversal probably was in order.
Now maybe a retrial is in order too, if they
got the right person. But it was a brave move
by these judges to reverse.
Speaker 1 (14:50):
And the DA did retry Harvey Weinstein, which resulted in
a mixed verdict. So we'll see if he decides to
retry Hernandez. Thanks so much for joining me.
Speaker 2 (15:01):
Paul.
Speaker 1 (15:02):
That's former New York prosecutor Paul Callan. President Donald Trump
has been very open about his plans to use redistricting
to help Republicans retain control of the House in the
twenty twenty six midterm elections. Trump said last week that
he'd spoken with Republican lawmakers in Texas and that redrawing
(15:22):
the state's congressional map in favor of the GOP would
add as many as five seats for the party.
Speaker 2 (15:29):
It's a very simple redrawing.
Speaker 3 (15:30):
We pick up five seats, but we have a couple
of other states where we'll pick up seats.
Speaker 1 (15:35):
Also days later, when Governor Greg Abbott announced his agenda
for the legislature's special session that started on Monday, redistricting
was on the list. In the hopes of countering Trump's
strategy in Texas, House Minority Leader Hakim Jeffries is reportedly
exploring the possibility of redrawing house maps in the Democratic
(15:57):
controlled states of California, New York, New Jersey, Minnesota, and Washington.
Speaker 4 (16:03):
Donald Trump, House Republicans here in Washington and Governor Abbott
are conspiring to rig the Texas congressional map as part
of an effort to disenfranchise millions of people in Texas.
Speaker 1 (16:19):
Join me is Elections law expert Richard Brofald, a professor
at Columbia Law School. Rich start by explaining the difference
between redistricting and gerrymandering.
Speaker 2 (16:31):
Sure, so, resistricting and jerry mandering refruit of the same thing,
But jerrymandering is a kind of negative way or a
critical way of describing it when it's being driven by
partisan purposes. So most of you know congressional delegations and
state legislatures are divided up into districts in every ten years.
They have to be redistricted based on population. As population
(16:54):
moves around, as some areas gain and some areas lose.
The Constitution requires, as interpreted by the Supreme Court, requires
that districts be a relatively equal population, So usually every
ten years, usually around the year ending in one or
year ending in two following the census, states redistricts. That's redistricting.
Gerrymandering is a negative term we use when we say
(17:17):
that the districting plan was driven by partisan political purposes.
There are many different ways of creating a state a
bunch of equal sized districts, but some of them can
be done in a way that favors one party over
the other. The party in charge can do it in
a way that breaks up areas that the other party
has and splits them up into multiple districts so they
(17:39):
can never control anything, or that's called cracking. So they
could also do the opposite, called packing, and put every
member of the minority party in one district, so that
they overwhelmingly dominate one district and have no voice anywhere else.
And so gerry mannering is a phenomenon of drawing district
lines in a way that produces districts of equal population
(18:00):
but unduly favors one party over the other. Thus, a
majority party gets not just a majority of the seats,
but a much bigger majority than their share of the vote,
which would require in fairness. So that's the difference.
Speaker 1 (18:14):
Donald Trump has called for Republicans in several states to
redraw their congressional maps to help give Republicans an even
bigger advantage in the midterms. As you mentioned, you know,
they usually do it every ten years. How unusual is
it to be doing it at this time.
Speaker 2 (18:30):
This kind of what might be called mid cycle registioning
is very unusual. It's not that it's never happened before.
It has sometimes happened. Although it's unusual, it happens sometimes.
It happens when a new party takes over state legislature
that they hadn't had at the beginning of the decade.
Here is actually talking to states where the Republicans were
already in charge of doing the districting in twenty twenty
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one and saying, well, I want you to do it
even more so now. And it's very rare that it's
being gone for so kind of late nakedly partisan purposes.
There usually has some justification for it, but this time,
I mean it's being announced as purely partisan. It's purely gerrymandering,
rather than any claim that there was a kind of
(19:13):
a problem of representation with the older districts.
Speaker 1 (19:16):
And the Supreme Court has said partisan jerry mandering is okay,
racial jerry mandering is not.
Speaker 2 (19:24):
That's correct. I mean, I guess technically what they have
said is that partisan jerry mandering is not unconstitutional. They
don't endorse it, but they have said that there's nothing
the federal courts can do about it. Racial gerrymandering districting
designed to help one race over another. That does raise
a constitutional concern, but race and party are often very
(19:44):
closely intertwined, and in their most recent cases, the courts
basically said, if the state says it's partisan, because partisan
is constitutional, we're going to defer them. We're going to
put a very heavy burden of proof on the other side,
challenging it to show that it's not partisan, it's racial.
And here, at least what's going on in Texas, the
announcement is so clearly that it's partisan, and it seems
(20:06):
to be that that I think it would be very
hard to show that even if there's a racial component
to it, it'd be very hard to show that it
wasn't primarily partisan.
Speaker 1 (20:14):
Republican Texas Governor Greg Abbott put redistricting on the list
for this special session that start on Monday, right. He
said his decision was because of a letter he received
from the Department of Justice earlier this month that alleges
that four of the current districts were racial gerrymanders that
violate the fourteenth Amendment. I mean, was that letter pretextual?
(20:38):
Does it make any sense?
Speaker 2 (20:39):
It sure seems that way. I mean, these districts were
adopted two years ago, and they were designed to provide
representation for minority groups, I think for for African Americans
and Latinos. I think they were primarily Latino districts. The
Constitution does not forbid that in the Voting Rights Act. Actually,
if it doesn't require that, at least it promotes that
idea representation for minorities. So no one has ever challenged
(21:03):
those districts. And basically the current view in the current
administration seems to view that anything that even thinks about
race is unconstitutional. That's not been the standard until now.
The Supreme court standard is that race can be taken
into account in districting, it just can't be the overwhelming factor,
the predominant factor. And I think you would have to
(21:24):
show that these districts, of course did help create minority representation,
but that you would have to show that that was
the overwhelming factor as opposed to other factors, including respect
for political subdivision mindes following the course of pre existing districts.
It does seem as though this was designed purely to
give a justification for a re redistricting. But the state
(21:45):
is not anyone going to court and suing. No one
has gone to court to sue to challenge those districts.
If anything, there was another lawsuit that was brought from
the other perspective saying that some other districts in Texas
violated the voting right fact in terms of limiting an representation,
and the state had been defending them as saying that
the state's districting plan was entirely constitutional. So the state
(22:07):
has now kind of flipped its position sort of, you know,
moving away from its position that everything is fine and
is now considering redoing the.
Speaker 3 (22:14):
District coming up next.
Speaker 1 (22:16):
Can Democrats really retaliate? This is Bloomberg. I've been talking
to Columbia law professor Richard Bruffault about Texas Republicans aiming
to redraw House districts at President Trump's urging in order
to help Republicans retain control of the House in the
twenty twenty six mid term elections. Rich this is also
(22:37):
risky for Republicans, not just legally but electorally. Texas Democrat
Gonzales said, get ready for some pick up opportunities.
Speaker 2 (22:47):
It depends on exactly what the Republicans do. But I
think if what they're going to do, and as I
understand it, if they take some districts where Republicans are
strong and move some Republican voters into nearby districts currently
held by a Democrat but have been trending Republican. I
think what happened is that in the twenty twenty four election,
(23:10):
a lot of districts that are held by Democrats voted
for Trump, and so I think what they're thinking is
that they may be able to move some Republican voters
from what are clearly Republican districts into districts which have
been Democratic districts but night tip Republican with a few
more Republican voters. So that's the idea of what I've
(23:30):
seen numbers. They think they can find as many as
five districts that look like that. What Aurort is getting
at is they're risking the possibility that not only won't
these districts tip, but by moving Republicans out of the
other districts, they risk losing those districts. A lot will
turn on what the political climate is next fall in
twenty twenty six. If it's a democratic year, that is
(23:53):
a real risk. If it's not, then the Republican strategy
may work. But you know, at some point, there are
only so many Republican and Democratic voters in a state,
and the idea is to try and arrange them in
such a way to maximize your party's vote. But people
don't always vote exactly the same each time, and it
could be that some voters switched back and the Republicans
(24:14):
did very well in what had been Democratic districts last time,
will they do as well next time.
Speaker 1 (24:19):
Three of the districts that the Republicans want to tinker
with are represented by black and Latino lawmakers in Houston
and Dallas. Reportedly, the White House is preparing a map
that splits those coalitions, So would there be a possible
legal challenge there, even though difficult.
Speaker 2 (24:37):
Well, one question again is the status of a so
called coalition. Until recently, many courts upheld the idea that
Minori groups can affect band together and say that we're
discriminated against together by the way the district lines are Troy.
There have now been some court decisions that are be
able to challenge the idea that you could have and
affect a lawsuit brought by African American and Hispanic coalition
(25:01):
that has to be either one or the other. So
that would be a question as to whether or not,
you know, the so called coalition is a group that
has standing to bring a claim. Those coalition cases have
been broad, but now I think more questions have been
raised about them.
Speaker 1 (25:17):
There's also a risk of retaliation. Minority leader Hakim Jeffries
is reportedly exploring the possibility of redrawing house maps in California,
New York, New Jersey, Minnesota, and Washington and California Governor
Gavin Newsom has been pretty blunt about saying we're going
to redistrict here in California. Then he said special sessions,
(25:39):
special elections, ballot initiatives, new laws. It's all on the
table when democracy is on the line. They have an
independent commission in California, right.
Speaker 2 (25:49):
I think it would be very hard to do this
in California because, as is implied from Newsom's statement, they
have a constitutional amendment that governs how redistricting is done.
They would baseic we have to either supersede that amendment
with a new amendment that either forever for one time
only it would change the distressing process. That's really hard.
(26:09):
I mean, I think they'd have to get the measure
of something through the legislature and to the voters, and
then the voters would have to approve that, and then
they'd have to go and then write a new plan.
And you know, that's a that's a big lift as
to whether or not it's they could get a constitutional
amendment to the voters in time this year, and whether
the voters would approve it, I mean, it's also pretty blatant.
(26:31):
And although California runs democratic, it's not clear to me
that the voters would approve this. I mean, the might
and then of course they'd have to write a plan
in a way that doesn't follow the constitutional pattern they
have there, they have to come up with an entirely
new system. So I guess they'd have to take it
away from the Constitutional Commission and give it to the legislature,
either always or this one time. I'm not sure what
(26:53):
the proposal is.
Speaker 1 (26:55):
And what about redistricting in other Democratic controlled states?
Speaker 2 (27:00):
Well, again, New York also has adopted a new constitutional
format redistricting, and that I think currently governs. I don't
know about the other states. I think in the other
states it may be possible that the legislature would they
have a democratic legislature and a democratic governor. You mentioned Minnesota.
I think the Minnesota legislature is very closely divided, and
(27:22):
I think a key Democrat is just convicted of a
crime and may have to resign. On which case, it's
not clear. The Democrats have been Minnesota legislature. So you
mentioned Washington state, that might be possible, and you're talking
about picking up maybe one seat. I think in a
place like.
Speaker 1 (27:35):
That, I mean, is jerry mandering getting worse in recent years?
Parties in jerry mandering?
Speaker 2 (27:42):
Oh, absolutely, Basically because the computer power has gotten so
much better. It has become much easier for computers to
generate multiple maps hundreds of thousands of maps that all
comply with one person, one vote and use pre existing
voting or voterage stration data to maximize the number of
Republican or Democratic districts. So it's no longer throwing drawing maps,
(28:07):
you know, taking out big maps and drawing and using
crayon and drawing on the floor. You can you can
generate almost an infinite number of maps by programming them
to respect certain factors and not others. And that's that
makes it incredibly easy. And then we're now the level
of you know, hyperpartisanship legislatures as such that they're also
willing to do it. There's been something of a pushback,
(28:29):
and I mentioned in California and New York have const
social amendments that can try to limitary mandering, and a
handful of other states, either by constcial amendment or by
state Supreme Court decision, there have been limits placed on jerrymandering.
But where the legislatures are not limited, they have kind
(28:51):
of infinite capacity to come up with maps that will
do as much as possible to maximize the power of
the of the party in power.
Speaker 1 (29:00):
And it seems like the democratic states are the ones
with those independent commissions, etc. Whereas the Republican states are
still mostly relying on their legislatures.
Speaker 2 (29:11):
Yeah, I think there is some control in but I
think it's relatively limited, which you're right. In Arizona, which
I guess is a purple state, has a commission. But
I think you know, we're talking about California, New York,
New Jersey, and then court decisions. I think Pennsylvania, maybe
now Wisconsin. I'm not quite sure where thinks standard was consiable.
Speaker 1 (29:32):
I think this topic is pretty depressing because how do
you take control away from the party in control, even
if you have more people voting with the minority party.
If the party in control can redistrict in these ways,
I mean.
Speaker 2 (29:49):
The main thing, of course, would be just a surgeon
voting in the opposite direction, and that sometimes happens. But
you're right, if the party in power is locked in
with a super majority, even if the minority party wins.
The governorship has often happened to some of these states
where you have a publican legislature and a democratic governor.
(30:10):
I think describes Wisconsin, for example. The governor can block
some things, but the governor can't really force anything to happen,
So no you're right. This is the problem. This is
why you know sixty years ago the Supreme Court interviewed
with one person, one vote because the States couldn't fix it.
And this is why so many people are unhappy that
the Supreme Court, now it's about six years ago, said
we're not going to interfere with parties and Jerry Mandarin.
(30:33):
It makes it very hard to undo a Jerry manner.
If it's successful, it's very hard to undo. The only
possibility we won't know about will happen in Texas until
the next November. It's the party in power gets too
greedy and spreads itself too thin and then loses seats.
That would be the come upance. But we don't know
what's going to happen right now.
Speaker 1 (30:53):
No, it all seems pretty amorphous. Thanks so much, rich
That's Professor Richard Raffault of Columbia Law School, and that's
it for this edition of The Bloomberg Law Show. Remember
you can always get the latest legal news on our
Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast Slash Law,
(31:16):
and remember to tune into the Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
The smiling face of the six year old boy who
disappeared on his way to school stared back from countless
milk cartons in the nineteen eighties. The disappearance of Eton
Pates in New York City in nineteen seventy nine was
(00:23):
one of the nation's most notorious missing child cases. There
was a decade's long, haunting search for answers to his
disappearance that put a national focus on missing children, made
anxious parents more protective of their children, and changed the
way law enforcement handled missing children cases. And then, more
(00:43):
than thirty years after his disappearance, police arrested Pedro Hernandez,
who worked at a convenience store in Eton's neighborhood. Hernandez confessed,
and after one jury deadlocked, a second jury convicted Hernandez
of murder and kidnapping.
Speaker 2 (01:00):
I needed to know what happened to my son, and
this great prosecution team finally proved it.
Speaker 1 (01:09):
And now, forty six years after Eton Pates's disappearance, a
New York federal appeals court has resurrected the case. The
second Circuit has reversed Hernandez's conviction and ordered that he
be given a new trial or released, saying the trial
judge gave clearly wrong instructions to the jury. The Manhattan
(01:30):
District Attorney, Alvin Bragg will make the decision about whether
to retry Hernandez or let him go free. My guest
is Paul Callen, a former New York City prosecutor and
criminal defense attorney. He's now of counsel at Edelman and Edelman.
Paul eton Pates's disappearance has had reverberations in so many areas.
Speaker 3 (01:52):
The Eton Pates case has influenced child rearing in America
for almost a quarter of a century. Mothers don't let
their kids go to school if they're in the first
grade unless they're accompanied. Helicopter parenting. I think came along
in a large degree because of the fear that's something
(02:13):
like what happened to Eton Pates would happen to a child.
So it's had a big influence this case on child
rearing in the United States.
Speaker 1 (02:22):
He was one of the first missing children to be
on milk cartons.
Speaker 3 (02:26):
Yes he was, and I think a whole generation of
kids probably grew up seeing him on the side of
milk carts as they sat having their cheerios in the morning,
wondering where eton Pates was and would he ever be found.
So the whole country was mesmerized by this case, and
I think it's kind of shocking that it got reversed
when they finally say they got the guy who did it.
(02:46):
And so it's a fascinating case and an interesting case.
Speaker 1 (02:49):
So his body was never found. As I understand it,
there's no physical evidence that links Hernandez to the crime.
Was it all based on a confession?
Speaker 3 (02:59):
Yeah, there was no physical evidence whatsoever. And there literally
were thousands of detective hours and FBI hours devoted to
searching for his body. They even had cadaver sniffing dogs
that went into basements in the area where he disappeared,
but they were never able to come up with a
piece of physical evidence. This is a case based entirely
(03:20):
on a confession.
Speaker 1 (03:22):
And the appeals court reversal is all about the confession.
So tell us about that.
Speaker 3 (03:28):
Yes, and remember this is the second trial that he
was convicted at. At the first trial, the jury also
in that case had a problem with the confession and
there was a single holdout and it resulted in a
hung jury, and then the Manhattandia decided to retry the case,
and so now we're in the second trial. And during
(03:49):
that second trial, the jury's having major problems with the confession.
And this is the reason they're having a big problem
with the confession. When he confessedes Pedro Hernandez confesses he's
in New Jersey. He's in Camden, New Jersey, and New
York detectives go to New Jersey and they put him
in an eight by ten foot room with no windows
in it, and they begin to ask him questions about
(04:11):
the disappearance of the Eton Pates. They did this because
they got a tip from one of his family members
that maybe he was involved in the disappearance of the
pates in nineteen seventy nine. And he's questioned intensively by
New York City detectives without Miranda warnings for a period
of approximately six hours. And during that time period they
(04:34):
even bring him drugs because he said he had left
his medications at home, and they send the detective to
his house to pick up a bottle of pills along
with fentanyl patches, and a fentanyl patch is put on
him as well as he's allowed to take the pills,
and the confession continues. There's a camera mounted in the
ceiling of the eight by ten foot windowless room, and
(04:57):
there's apparently a Manhattan Assiste District attorney watching the questioning
from a remote location, and at the very end of
that time period, he confesses to having killed Eton Pates,
putting his body in a garbage bag and then throwing
it in the trash. And he says that he encountered
Pates outside of a bodega that he Hernandez worked at
(05:18):
or for the Masota, and brought him inside and murdered him.
The confession then is repeated later on when he's brought
back to Manhattan to the assistant district attorney that in
fact was watching remotely when the first confession was given,
and this time he's given his Miranda warnings. At the
time of the initial confession, he's never given Miranda warnings
(05:41):
by the police. They say he was not in custody,
despite the fact that he's in an eight x ten
windowless room for six hours being questioned by a team
of detectives. So problems with those confessions are the central
reason that the United States Federal Court has reversed the
conviction liberations.
Speaker 1 (06:00):
The jurors sent out a note to the judge asking
whether they should disregard the later recorded confessions if they
found that his first confession off camera wasn't voluntary, And
the Second Circuit said, the judge gave them the wrong answer.
Speaker 3 (06:17):
Yes, that's exactly correct. What the note said was, if
we find that the initial confession that was given in
New Jersey was not voluntary, can we still consider the
subsequent confessions that were made when he was brought back
to New York. And essentially the court said, yes, you
can consider the subsequent confessions. So they went on then
(06:40):
to look at the subsequent confessions which occurred after Miranda warnings,
and he incriminated himself in those confessions as well. So
the conviction was based on those confessions.
Speaker 1 (06:50):
And why did the Second Circuit conclude that the judge's
answer or decision was wrong.
Speaker 3 (06:57):
Well, there's a case called Missouri is Sebird that is
the central case that the court refers to. And back
when the Miranda decision came down, the cops had come
up with a workaround. And here's the workaround. Let's take
the person into custody and get a confession out of
(07:17):
the person and then give him Miranda warnings and ask
him to just repeat what he had said in the
initial confession. And this became a widespread technique that was
used across the country. Eventually, the federal courts had to
step in, including the Supreme Court, to say, no, this
is completely improper. You can't do a confession without Miranda
(07:40):
warnings and then subsequently give the warnings and ask the
person to repeat what you just said. And that's this
Missouri versus Sibird case. And the Circuit Court here Second
Circuit said no, they ignored that case. They didn't rule
properly on that case. There wasn't a significant what they
call attenuation between the initial confession which had no Miranda
(08:03):
warnings and the subsequent confessions when the Miranda warnings were given.
The Seber case basically says that there has to be
an attenuation of a distance between the two interrogations if
you're going to just administer the Miranda warnings belatedly. So
that wasn't done in this case, and for that reason
the conviction was overturned.
Speaker 1 (08:24):
I'm just curious about in real life, so we hear
the Miranda warnings in TV shows and movies over and
over again. Most people can recite them. Does it really
make a difference to someone in custody if they hear
those Miranda warnings?
Speaker 3 (08:41):
To tell you the truth, June, I don't think so.
And you know, when I started out my career as
an assistant district attorney in New York City, we used
to ride homicide cases, meaning we would go out to
the scene of the crime and administer Miranda warnings to
the suspect. We had a stenographer with us and it
would all be taken down, but frankly, we didn't know
(09:01):
what went on, what really went on before we got there.
Now the police would say we administered warnings to him
before the DA arrived and took the formal statement, but
who knows what went on. I mean, it's only the
police in the room with the suspect, and the atmosphere
is very different before the lawyer arrives on the scene.
But my experience was that the Miranda warnings had become
(09:22):
so pro forma and all of the potential defendants in
criminal cases know the Miranda warnings, so they're not getting
any new information, and if their intent on confessing, they
confess without asking for a lawyer. You know, it's really
only the sort of educated professionals and mobsters who ask
for lawyers, not day to day violent criminals.
Speaker 1 (09:43):
So now the second Circuit said that either free Hernandez
or put him on trial for a third time within
a quote reasonable period. Talk about the obstacles of trying
him again, Well.
Speaker 3 (09:57):
They're going to be up against exactly the same obstacles
as the first time around, because when I looked into
the record of this case, remember this Appellet decision that
was issued by the federal courts, fifty one pages in length.
They recount in detail all of the strange things that
happened during this interrogation. He was found by several experts
to be a schizophrenic suffering from bipolar disease who was
(10:21):
also using fentanyl and other drugs. This is all taking
place when he's being interrogated, by the way that he
was suffering from these conditions and using the drugs which
were supplied by the police. So in the absence of
new evidence that would physically link him to the crime,
I think you're very much in a situation. Will you
be looking at another hung jury or maybe even an
(10:44):
acquittal on a retrial Now, the DA in the last
case was Cyrus Vance, who decided to proceed with this case.
And you have a new DA now, Alvin Bragg. And
I'm not so sure that Alvin Bragg's going to want
to get involved in the Eton Pates case just because
of the problems with the evidence and something else. There
were at least two other suspects who were child abusers,
(11:08):
who were thought to be in the vicinity of the
crime and who were intensively investigated, and with the exception
of the confession, the case against them was as strong
as the case is against Hernandez. So I'm doubting that
he will get retried. But of course there might be
a public outcry. So it's always hard to decide by
a DA whether to proceed or not in such a
high profile case.
Speaker 1 (11:29):
This is such a high profile case and a lot
of people will be dismayed if Hernandez just walks out
of prison. That's something that the DA has to consider too.
Speaker 3 (11:42):
Yes, I agree with you completely. There there'll be public
outrage if Hernandez is allowed to walk. And you know, frankly,
when you're a DA also you're saying, my god, will
I be releasing a child molestor and murderer who might
in fact hurt other people. Maybe it's worth another try
to try him again, But I think really they're going
(12:03):
to be up against a very, very difficult situation if
they attempt to retry this case.
Speaker 1 (12:08):
And Paul, how unusual is it for a federal appellate
court to reverse a state court proceeding. I mean, this
was a petition for a habeas relief.
Speaker 3 (12:18):
It's very, very unusual for it to happen. And the
reason for that is that these cases, before they get
to federal court, they've usually been looked at by at
least two other appellate court levels. On the state court
in New York, you'd go to the Appellate Division, and
you'd go to the Court of Appeals. And by the
(12:38):
time you bring a habeas action, which is what it's
called when the Feds get involved in looking at a
state case for constitutional violations, you've got a record that's
been carefully examined by a lot of judges who have
found that the trial was fair and there were no
constitutional violations. And the standard for a habeas relief is
(13:00):
very very high. You have to show you that there
was absolutely no reason to support the state's determination not
to set aside the conviction. There's a very very high
standard displaced on the defendant to prove his innocence in
a federal habeast action. So it's very rare that you
win this kind of relief, especially in a high profile case.
Speaker 1 (13:24):
And this stunning appeals court reversal came just over a
year after another high profile case tried during Cyrus Vance's
tenure was also reversed on appeal in another stunning decision,
and that was the Harvey Weinstein case, when an appeals
court found that the trial judge there shouldn't have allowed
(13:45):
prosecutors to call witnesses who accused Weinstein of sexual abuse
in incidents that were not part of the charges.
Speaker 3 (13:54):
You have to say that these judges in New York
have been quite brave. You have the Harvey Weinstein case,
which burned up the headlines across the country when he
was convicted, and they reversed his conviction, and now, of
course you have this case. Eton Pates is the poster
child of you know, a child being kidnapped and abused,
(14:16):
and for the appellate court to have reversed both of
these cases is a very brave move. By those courts,
and I think it's a tribute to them that they
were carefully applying the law as it is, despite the
fact that they're probably going to be criticized publicly for
having done so. But I think, you know, the evidence
(14:37):
was clear in this case, and I also think in
the Weinstein case that a reversal probably was in order.
Now maybe a retrial is in order too, if they
got the right person. But it was a brave move
by these judges to reverse.
Speaker 1 (14:50):
And the DA did retry Harvey Weinstein, which resulted in
a mixed verdict. So we'll see if he decides to
retry Hernandez. Thanks so much for joining me.
Speaker 2 (15:01):
Paul.
Speaker 1 (15:02):
That's former New York prosecutor Paul Callan. President Donald Trump
has been very open about his plans to use redistricting
to help Republicans retain control of the House in the
twenty twenty six midterm elections. Trump said last week that
he'd spoken with Republican lawmakers in Texas and that redrawing
(15:22):
the state's congressional map in favor of the GOP would
add as many as five seats for the party.
Speaker 2 (15:29):
It's a very simple redrawing.
Speaker 3 (15:30):
We pick up five seats, but we have a couple
of other states where we'll pick up seats.
Speaker 1 (15:35):
Also days later, when Governor Greg Abbott announced his agenda
for the legislature's special session that started on Monday, redistricting
was on the list. In the hopes of countering Trump's
strategy in Texas, House Minority Leader Hakim Jeffries is reportedly
exploring the possibility of redrawing house maps in the Democratic
(15:57):
controlled states of California, New York, New Jersey, Minnesota, and Washington.
Speaker 4 (16:03):
Donald Trump, House Republicans here in Washington and Governor Abbott
are conspiring to rig the Texas congressional map as part
of an effort to disenfranchise millions of people in Texas.
Speaker 1 (16:19):
Join me is Elections law expert Richard Brofald, a professor
at Columbia Law School. Rich start by explaining the difference
between redistricting and gerrymandering.
Speaker 2 (16:31):
Sure, so, resistricting and jerry mandering refruit of the same thing,
But jerrymandering is a kind of negative way or a
critical way of describing it when it's being driven by
partisan purposes. So most of you know congressional delegations and
state legislatures are divided up into districts in every ten years.
They have to be redistricted based on population. As population
(16:54):
moves around, as some areas gain and some areas lose.
The Constitution requires, as interpreted by the Supreme Court, requires
that districts be a relatively equal population, So usually every
ten years, usually around the year ending in one or
year ending in two following the census, states redistricts. That's redistricting.
Gerrymandering is a negative term we use when we say
(17:17):
that the districting plan was driven by partisan political purposes.
There are many different ways of creating a state a
bunch of equal sized districts, but some of them can
be done in a way that favors one party over
the other. The party in charge can do it in
a way that breaks up areas that the other party
has and splits them up into multiple districts so they
(17:39):
can never control anything, or that's called cracking. So they
could also do the opposite, called packing, and put every
member of the minority party in one district, so that
they overwhelmingly dominate one district and have no voice anywhere else.
And so gerry mannering is a phenomenon of drawing district
lines in a way that produces districts of equal population
(18:00):
but unduly favors one party over the other. Thus, a
majority party gets not just a majority of the seats,
but a much bigger majority than their share of the vote,
which would require in fairness. So that's the difference.
Speaker 1 (18:14):
Donald Trump has called for Republicans in several states to
redraw their congressional maps to help give Republicans an even
bigger advantage in the midterms. As you mentioned, you know,
they usually do it every ten years. How unusual is
it to be doing it at this time.
Speaker 2 (18:30):
This kind of what might be called mid cycle registioning
is very unusual. It's not that it's never happened before.
It has sometimes happened. Although it's unusual, it happens sometimes.
It happens when a new party takes over state legislature
that they hadn't had at the beginning of the decade.
Here is actually talking to states where the Republicans were
already in charge of doing the districting in twenty twenty
(18:51):
one and saying, well, I want you to do it
even more so now. And it's very rare that it's
being gone for so kind of late nakedly partisan purposes.
There usually has some justification for it, but this time,
I mean it's being announced as purely partisan. It's purely gerrymandering,
rather than any claim that there was a kind of
(19:13):
a problem of representation with the older districts.
Speaker 1 (19:16):
And the Supreme Court has said partisan jerry mandering is okay,
racial jerry mandering is not.
Speaker 2 (19:24):
That's correct. I mean, I guess technically what they have
said is that partisan jerry mandering is not unconstitutional. They
don't endorse it, but they have said that there's nothing
the federal courts can do about it. Racial gerrymandering districting
designed to help one race over another. That does raise
a constitutional concern, but race and party are often very
(19:44):
closely intertwined, and in their most recent cases, the courts
basically said, if the state says it's partisan, because partisan
is constitutional, we're going to defer them. We're going to
put a very heavy burden of proof on the other side,
challenging it to show that it's not partisan, it's racial.
And here, at least what's going on in Texas, the
announcement is so clearly that it's partisan, and it seems
(20:06):
to be that that I think it would be very
hard to show that even if there's a racial component
to it, it'd be very hard to show that it
wasn't primarily partisan.
Speaker 1 (20:14):
Republican Texas Governor Greg Abbott put redistricting on the list
for this special session that start on Monday, right. He
said his decision was because of a letter he received
from the Department of Justice earlier this month that alleges
that four of the current districts were racial gerrymanders that
violate the fourteenth Amendment. I mean, was that letter pretextual?
(20:38):
Does it make any sense?
Speaker 2 (20:39):
It sure seems that way. I mean, these districts were
adopted two years ago, and they were designed to provide
representation for minority groups, I think for for African Americans
and Latinos. I think they were primarily Latino districts. The
Constitution does not forbid that in the Voting Rights Act. Actually,
if it doesn't require that, at least it promotes that
idea representation for minorities. So no one has ever challenged
(21:03):
those districts. And basically the current view in the current
administration seems to view that anything that even thinks about
race is unconstitutional. That's not been the standard until now.
The Supreme court standard is that race can be taken
into account in districting, it just can't be the overwhelming factor,
the predominant factor. And I think you would have to
(21:24):
show that these districts, of course did help create minority representation,
but that you would have to show that that was
the overwhelming factor as opposed to other factors, including respect
for political subdivision mindes following the course of pre existing districts.
It does seem as though this was designed purely to
give a justification for a re redistricting. But the state
(21:45):
is not anyone going to court and suing. No one
has gone to court to sue to challenge those districts.
If anything, there was another lawsuit that was brought from
the other perspective saying that some other districts in Texas
violated the voting right fact in terms of limiting an representation,
and the state had been defending them as saying that
the state's districting plan was entirely constitutional. So the state
(22:07):
has now kind of flipped its position sort of, you know,
moving away from its position that everything is fine and
is now considering redoing the.
Speaker 3 (22:14):
District coming up next.
Speaker 1 (22:16):
Can Democrats really retaliate? This is Bloomberg. I've been talking
to Columbia law professor Richard Bruffault about Texas Republicans aiming
to redraw House districts at President Trump's urging in order
to help Republicans retain control of the House in the
twenty twenty six mid term elections. Rich this is also
(22:37):
risky for Republicans, not just legally but electorally. Texas Democrat
Gonzales said, get ready for some pick up opportunities.
Speaker 2 (22:47):
It depends on exactly what the Republicans do. But I
think if what they're going to do, and as I
understand it, if they take some districts where Republicans are
strong and move some Republican voters into nearby districts currently
held by a Democrat but have been trending Republican. I
think what happened is that in the twenty twenty four election,
(23:10):
a lot of districts that are held by Democrats voted
for Trump, and so I think what they're thinking is
that they may be able to move some Republican voters
from what are clearly Republican districts into districts which have
been Democratic districts but night tip Republican with a few
more Republican voters. So that's the idea of what I've
(23:30):
seen numbers. They think they can find as many as
five districts that look like that. What Aurort is getting
at is they're risking the possibility that not only won't
these districts tip, but by moving Republicans out of the
other districts, they risk losing those districts. A lot will
turn on what the political climate is next fall in
twenty twenty six. If it's a democratic year, that is
(23:53):
a real risk. If it's not, then the Republican strategy
may work. But you know, at some point, there are
only so many Republican and Democratic voters in a state,
and the idea is to try and arrange them in
such a way to maximize your party's vote. But people
don't always vote exactly the same each time, and it
could be that some voters switched back and the Republicans
(24:14):
did very well in what had been Democratic districts last time,
will they do as well next time.
Speaker 1 (24:19):
Three of the districts that the Republicans want to tinker
with are represented by black and Latino lawmakers in Houston
and Dallas. Reportedly, the White House is preparing a map
that splits those coalitions, So would there be a possible
legal challenge there, even though difficult.
Speaker 2 (24:37):
Well, one question again is the status of a so
called coalition. Until recently, many courts upheld the idea that
Minori groups can affect band together and say that we're
discriminated against together by the way the district lines are Troy.
There have now been some court decisions that are be
able to challenge the idea that you could have and
affect a lawsuit brought by African American and Hispanic coalition
(25:01):
that has to be either one or the other. So
that would be a question as to whether or not,
you know, the so called coalition is a group that
has standing to bring a claim. Those coalition cases have
been broad, but now I think more questions have been
raised about them.
Speaker 1 (25:17):
There's also a risk of retaliation. Minority leader Hakim Jeffries
is reportedly exploring the possibility of redrawing house maps in California,
New York, New Jersey, Minnesota, and Washington and California Governor
Gavin Newsom has been pretty blunt about saying we're going
to redistrict here in California. Then he said special sessions,
(25:39):
special elections, ballot initiatives, new laws. It's all on the
table when democracy is on the line. They have an
independent commission in California, right.
Speaker 2 (25:49):
I think it would be very hard to do this
in California because, as is implied from Newsom's statement, they
have a constitutional amendment that governs how redistricting is done.
They would baseic we have to either supersede that amendment
with a new amendment that either forever for one time
only it would change the distressing process. That's really hard.
(26:09):
I mean, I think they'd have to get the measure
of something through the legislature and to the voters, and
then the voters would have to approve that, and then
they'd have to go and then write a new plan.
And you know, that's a that's a big lift as
to whether or not it's they could get a constitutional
amendment to the voters in time this year, and whether
the voters would approve it, I mean, it's also pretty blatant.
(26:31):
And although California runs democratic, it's not clear to me
that the voters would approve this. I mean, the might
and then of course they'd have to write a plan
in a way that doesn't follow the constitutional pattern they
have there, they have to come up with an entirely
new system. So I guess they'd have to take it
away from the Constitutional Commission and give it to the legislature,
either always or this one time. I'm not sure what
(26:53):
the proposal is.
Speaker 1 (26:55):
And what about redistricting in other Democratic controlled states?
Speaker 2 (27:00):
Well, again, New York also has adopted a new constitutional
format redistricting, and that I think currently governs. I don't
know about the other states. I think in the other
states it may be possible that the legislature would they
have a democratic legislature and a democratic governor. You mentioned Minnesota.
I think the Minnesota legislature is very closely divided, and
(27:22):
I think a key Democrat is just convicted of a
crime and may have to resign. On which case, it's
not clear. The Democrats have been Minnesota legislature. So you
mentioned Washington state, that might be possible, and you're talking
about picking up maybe one seat. I think in a
place like.
Speaker 1 (27:35):
That, I mean, is jerry mandering getting worse in recent years?
Parties in jerry mandering?
Speaker 2 (27:42):
Oh, absolutely, Basically because the computer power has gotten so
much better. It has become much easier for computers to
generate multiple maps hundreds of thousands of maps that all
comply with one person, one vote and use pre existing
voting or voterage stration data to maximize the number of
Republican or Democratic districts. So it's no longer throwing drawing maps,
(28:07):
you know, taking out big maps and drawing and using
crayon and drawing on the floor. You can you can
generate almost an infinite number of maps by programming them
to respect certain factors and not others. And that's that
makes it incredibly easy. And then we're now the level
of you know, hyperpartisanship legislatures as such that they're also
willing to do it. There's been something of a pushback,
(28:29):
and I mentioned in California and New York have const
social amendments that can try to limitary mandering, and a
handful of other states, either by constcial amendment or by
state Supreme Court decision, there have been limits placed on jerrymandering.
But where the legislatures are not limited, they have kind
(28:51):
of infinite capacity to come up with maps that will
do as much as possible to maximize the power of
the of the party in power.
Speaker 1 (29:00):
And it seems like the democratic states are the ones
with those independent commissions, etc. Whereas the Republican states are
still mostly relying on their legislatures.
Speaker 2 (29:11):
Yeah, I think there is some control in but I
think it's relatively limited, which you're right. In Arizona, which
I guess is a purple state, has a commission. But
I think you know, we're talking about California, New York,
New Jersey, and then court decisions. I think Pennsylvania, maybe
now Wisconsin. I'm not quite sure where thinks standard was consiable.
Speaker 1 (29:32):
I think this topic is pretty depressing because how do
you take control away from the party in control, even
if you have more people voting with the minority party.
If the party in control can redistrict in these ways,
I mean.
Speaker 2 (29:49):
The main thing, of course, would be just a surgeon
voting in the opposite direction, and that sometimes happens. But
you're right, if the party in power is locked in
with a super majority, even if the minority party wins.
The governorship has often happened to some of these states
where you have a publican legislature and a democratic governor.
(30:10):
I think describes Wisconsin, for example. The governor can block
some things, but the governor can't really force anything to happen,
So no you're right. This is the problem. This is
why you know sixty years ago the Supreme Court interviewed
with one person, one vote because the States couldn't fix it.
And this is why so many people are unhappy that
the Supreme Court, now it's about six years ago, said
we're not going to interfere with parties and Jerry Mandarin.
(30:33):
It makes it very hard to undo a Jerry manner.
If it's successful, it's very hard to undo. The only
possibility we won't know about will happen in Texas until
the next November. It's the party in power gets too
greedy and spreads itself too thin and then loses seats.
That would be the come upance. But we don't know
what's going to happen right now.
Speaker 1 (30:53):
No, it all seems pretty amorphous. Thanks so much, rich
That's Professor Richard Raffault of Columbia Law School, and that's
it for this edition of The Bloomberg Law Show. Remember
you can always get the latest legal news on our
Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast Slash Law,
(31:16):
and remember to tune into the Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
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