November 20, 2025 • 32 mins
Bloomberg Law senior correspondent Alex Ebert discusses a landmark New Jersey ruling on the use of “shaken baby syndrome” evidence. Then Jacqueline Thomsen, Bloomberg Law reporter, discusses how some senior judges are “mellowing out” some decisions on the conservative Fifth Circuit. And Harold Krent, a professor at the Chicago-Kent College of Law, discusses how agencies are winning the fight over using in-house judges. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2 (00:08):
It's a landmark ruling. Today New Jersey became the first
state where prosecutors can't build murder cases on medical diagnoses
that the mere shaking of a baby caused a child's
death unless there's further evidence of trauma. The New Jersey
Supreme Court is the first in the country to block
(00:30):
a shaken baby syndrome theory when investigations into child deaths
don't show other injuries such as bruising or neck damage.
Joining me is Bloomberg Law Senior correspondent Alex Ebert. Alex
tell us about today's decision.
Speaker 1 (00:47):
This decision is the landmark opinion issued by the New
Jersey Supreme Court that, for the first time for a
high court in the country, it says that you cannot
bring a shaken baby determination from a medical perspective to
charge someone with child assault, where if there's no external
evidence of abuse such as bruising or injuries on a
(01:10):
child's neck, you can't bring the charges at all. And
the reason why that is is because there's big conflict
in medical circles about whether or not these reliable symptoms
that we thought for years were evidence of shaking baby syndrome.
Child abuse could be caused by other means, and there's
been new studies that show that perhaps these triad of
(01:34):
symptoms such as brain bleeding or bruising on the eyes
isn't actually enough to bring that evidence to court. The
reason this is a huge landmark ruling is because we've
seen bubbling up across the country different medical groups, biomechanical groups,
and defense organizations saying we can no longer ignore the
(01:57):
conflict and evidence between what we thought was reliable in
terms of child abuse and what is now questionable.
Speaker 2 (02:05):
And this decision involves the cases of two fathers who
were facing allegations of child abuse.
Speaker 1 (02:12):
Yeah, the court was considering the cases of two fathers
who both had premature children and were taking care of them,
and they had seizure symptoms. These dads brought their kids
to the hospital to get them looked after, and doctors determined,
even though there were no external symptoms of abuse such
as bruising, that these fathers were responsible for injuring their
(02:34):
own children by shaking them or slamming them, and the
State Public Defender's office ran to the judge and said Listen,
we have these cases all across the country that are
questioning whether or not you can bring this sort of
determination from an expert in court.
Speaker 2 (02:51):
In this one hundred and nine page ruling, did the
court track the scientific evidence?
Speaker 1 (02:57):
Yeah, the court went deep. So the majority of and
Jersey's Supreme Court went through study after study going back
to the nineteen sixties looking at how this diagnosis shaking
baby syndrome originated. It went back to whiplash studies and
cars using monkeys to determine exactly what happens to human
beings when they're shaken, and it progressed through different studies
(03:19):
by pediatricians and neurosurgeons up through the nineties, when a
large medical association for the United States said, it's a
presumption that if you have these symptoms that there's child abuse.
Speaker 2 (03:31):
And where do the medical association stand now?
Speaker 1 (03:34):
The medical association stand behind a diagnosis, which is what
makes this complex. See, you have the industry saying we
need to be able to diagnose these children and make
sure that we can take them out of bad situations.
But you now have a state supreme court saying just
because you have this diagnosis isn't enough to rule out
(03:54):
anything else, and that's not enough to come to court
and say, based on my medical opinion, this is the
only thing that could have happened.
Speaker 2 (04:03):
There are seven members of the New Jersey Supreme Court,
and this was a six to one decision.
Speaker 1 (04:09):
One of the justices issued a dissent here, siding with
the medical organization, saying, listen, we can't be second guessing
the medical establishment here. We are not scientists. We are
not people that investigate the scientific method. And she focused
mostly on the medical associations that all backed up this diagnosis.
(04:32):
Were the majority focused on biomechanical experts, who said, we
originated a lot of the science behind how you determine
whiplash and things like that, and if you don't have
our consensus for this, then the consensus of the medical
industry doesn't necessarily hold water.
Speaker 2 (04:49):
Can this decision be appealed?
Speaker 1 (04:51):
It wouldn't be difficult to appeal this decision. It would
have to go to the United States Supreme Court, because
that is the only direct appeal from a Supreme court.
There has not been a ruling on this to my knowledge,
although there is some quotation of a Ginsburg descent inside
of the ruling today, this is now going to go
(05:12):
back to the trial court and these charges will be
dismissed against these parents.
Speaker 2 (05:16):
Is New Jersey different from other courts in the way
it's been handling these cases.
Speaker 1 (05:22):
Up to this point, there has never been a decision
that goes this far. Though, you have courts start to
become extremely skeptical of this no external evidence shaken baby
syndrome theory. You've had, especially the Michigan Supreme Court issued
decision saying, hey, we need to provide counsel that does
a good job of contesting the state's evidence here at
(05:43):
a deep level. And you've also seen criminal courts in
Texas and the Texas legislature really question whether or not
a death row inmate there should be in prison.
Speaker 2 (05:55):
So, up until this point, how would prosecutors can instruct
a case against someone based on shaken baby syndrome? They
needed some physical evidence.
Speaker 3 (06:07):
Right do so?
Speaker 1 (06:09):
Doctors create this differential diagnosis by looking at, you know,
different markers on the child when they come in to
get treatment. You look at things like bleeding on the
brain or bleeding in the eyes and say, Okay, something
happened to this child. It's more than just seizures, right
or they look back at the child's past and say,
did you have any accidental injury? You know, did billy
(06:30):
you know, fall down the stairs? And in cases where
that's not present, they you know, think, okay, we're ruling
out other things. It must be something else. But the
problem there is the justices in New Jersey say that's
not enough to come to court and say we've ruled
out everything else. It can only be this.
Speaker 2 (06:50):
So you need something else, something that physically shows that's right.
Speaker 1 (06:56):
You need something else. They call it external evidence, but
it's some sort of physical external issues with the body, right,
damage to someone's neck or bruising, you know, other signs
of abuse. And the descent here calls out that this
means that there could be parents or childcare providers or
other people that get away with abusing children because there's
(07:20):
just no external evidence of it. But on the other side,
you have decades of people saying we're putting away parents
and usually fathers on perhaps flimsy evidence, just because a
doctor couldn't find a reason for it.
Speaker 2 (07:34):
Are there a lot of shaken baby cases in this country?
Speaker 1 (07:38):
I'm unaware of reading through the briefs how many there are.
But we're looking at hundreds. There were several going on
at the time when this decision was coming up in
New Jersey alone.
Speaker 2 (07:51):
So this is, you know, a forward thinking decision. Cutting
edge is the New Jersey Supreme Court known for that.
Speaker 1 (07:59):
New Jersey Supreme Court is known for this sort of thing.
It has extremely robust protections when it comes to privacy,
and it's usually at the cutting edge of Fourth Amendment jurisprudence.
We've talked in the past about how skeptical they are around,
you know, looking at things like someone's Google accounts and
other subpoena information. But this falls in line with the
(08:20):
court's skepticism towards allowing police and prosecutors to introduce evidence
without it being questioned. Here you sort of see the
justices line up in a way that we haven't in
another court to say, in this instant where someone is
saying it can only be this, we can't allow that
sort of thing when there's not enough certainty in the field.
(08:43):
We've seen decisions bubble up that look at client accountability
for lawyers in this regard, right, but we haven't seen
a court go this far. It'll be really interesting to
see if other courts go as far as New Jersey
and strip this tool away from prosecutors to tackle child abuse.
(09:03):
You know, especially in our current climate where child abuse
and the abusive minors is a huge problem and concern.
You know, potentially taking away that tool might be more
politically sensitive in some parts of the country than others.
Speaker 2 (09:17):
Tough balancing decisions, no doubt, Thanks so much, Alex. That's
Bloomberg Law Senior correspondent Alex Ebert. A handful of Fifth
Circuit judges are mellowing out some rulings from one of
the most conservative federal appellate courts, and they're the senior
judges Bloomberg Laws. Jacqueline Thompson has done some research on
(09:41):
this right, so start by telling us about these decisions
from the three judge panels that are a little more moderate,
less conservative than the full court's decisions usually are.
Speaker 4 (09:56):
I mean, when we think about the US Court of
Appeals for the Fifth Circuit, you know, we immediately think
of a conservative appeals court, and you know, a lot
of their rulings are very conservative. But there have been
a few decisions lately that don't necessarily fit in with
that pattern. For example, there was a three judge panel
that said a Louisiana law that mandated the display of
(10:17):
the Ten Commandments in public schools was unconstitutional. There was
another one saying that the Texas A and M president
at the time was wrong in canceling a student drag
show on campus. And you know, those are rulings that
we think of as not going in the conservative pattern
that we think of when we think of the Fifth Circuit. So,
(10:39):
you know, I started to take a step back and
look at who was actually on those panels. And for
a lot of the Fifth Circuit argument panels, often it
is a Trump appointe or more conservative member, a more
moderate member of the court, and then a senior judge.
And that's not always the case. Sometimes there will be
multiple Trump appointees. Sometimes there are panels with ultraum appointees.
(11:00):
Sometimes it's called George W. Bush appointees. But you know,
for these instances, that seemed to be the composition either
Trump or Reagan appointee dissenting against a majority of the
panel that was a moderate judge or a senior judge.
And so I said, okay, well, what's the role that
the senior judges are playing here? And you know, it
just seemed to have more of an outsize impact than
(11:22):
I expected.
Speaker 2 (11:24):
Tell us about the composition of the Fifth Circuit itself.
Speaker 4 (11:29):
Yeah, so I believe there are seventeen active judges right now,
and there are on top of that seven senior judges
who are still here in cases. One other senior judge
actually went fully inactive earlier this year, so that left
just to seven. We have six Trump appointees on that court.
We have two Biden appointees, we have I believe two
(11:53):
Obama appointees, a couple of Clinton appointees, and then about.
Speaker 1 (11:58):
Three or four George W.
Speaker 4 (12:00):
Bush appointees acting as active judges. For the most part,
one is the senior judge. We have two Reagan appointees
who are active judges, and then we have other Reagan
appointees who are senior judges. One senior judge who has
been incredibly active is Carolyn dining King. She is a
Carter appointee. So you know, it really goes the whole
(12:24):
spectrum of presidents who have appointed judges to the Fifth
Circuit who are still here in cases and who are
still playing a really active role on this court. I
mean the Reagan judges are very active. I mean two
of them aren't taking senior status, which would give Trump
the opportunity to fill two seats on that court and
sort of expand his wing. But you know, they're often
(12:47):
in line with the Trump appointees on the court. So
I can't speak to why they're not taking senior status,
but that may be part of it that you know,
they're like, hey, look, I'm super relevant right now. I'm
able to build up these majorities with other factions at
the court right now.
Speaker 2 (13:02):
So will you explain in general, because there are exceptions,
as you note in your article, are the senior judges
more moderate than the recent appointees, particularly the Trump appointees.
Speaker 4 (13:15):
I think that's right. I think there are more moderate.
They're more of an old school conservative. You know, if
you sort of want to put the Republican appointed judges
in two factions, you might have, you know, the active
Reagan appointees and the current Trump appointees and one basket,
and then senior judges who are also Republican appointees and
(13:37):
folks who are like George W. Bush appointees and another basket.
Sometimes there's some crossover there, especially on the fringes. There's
one Triump appointee who might be more in line with
the moderate wing, and then one Bush appointing, you might
be more in line with the Trump wing. But you know,
for the most part, the senior judges they've been around
for a while, They've been appointed by presidents of a
(13:58):
different generation, and they've spent decades sitting on this court.
And you know, because of that, they may have more
experience and make them less willing to question settle precedent
or to think, hey, maybe we should look at this
a different way than we happen in the past.
Speaker 2 (14:14):
And the Fifth Circuit has been sort of trying to
test the envelope or move the case law to the
to the right in many circumstances, and they've been getting
reviewed by the Supreme Court a lot more than other circuits.
Speaker 4 (14:31):
You're right that the Fifth Circuit does have an outsized
number of cases that are going to the US Supreme
Court and that are regularly being considered by the justices.
Some of that might be because these judges are writing
dissents or concurring opinions that sort of say, hey, take
a look at this case. I mean Dobbs, which over
(14:52):
turn Row that was a Fifth Circuit case. Jim Howick
Trump appointing wrote the opinion in that that sort of
laid the groundwork for the un Supreme Court to take
up that case. And you know, we see that in
other instances too. Judge Patrick Higginbotham, who was a Reagan appointee,
he's a senior judge. He had written an opinion in
a case involving porn Hub and Texas law and age
(15:15):
verification requirements for you know, explicit adult websites that you know,
some people say was sort of a way for the
Supreme Court to take up that case because he said, hey,
this is you know, what the precedent is on the books,
and that allowed the justices to pick it up and
then you know, alter or trust that old precedent and
say this is how it should be applied moving forward
(15:37):
and upholding that Texas law.
Speaker 2 (15:39):
Are the Democratic appointees on that court, usually in dissent
or not.
Speaker 4 (15:45):
They can be in descent. Sometimes they line up with
the moderate judges. We see folks who are George W.
Bush appointees like Leslie Southwick or Katerina Haynes. They will
sometimes be lined up with the Democratic appointees who are
folks like Steve Higginson. Judge Graves comes to mind, Carl Stewart.
You know, Diana Douglas and Irma Ramirez are the two
(16:07):
new Biden appointees, you know, so they're all in the
mix as well. And we do find that folks like Haynes,
like Southwick are more willing to reach agreement with their
liberal colleagues, and maybe other members of the court are.
Speaker 2 (16:21):
And you mentioned a Clinton appointee who does a lot
of dissents.
Speaker 4 (16:26):
Yes, James Dennis. He is a senior member of the Court.
He only went senior a few years ago, and you know,
he's been on the court for decades once again, and
right now he's sort of viewed as one of the
big dissenters on the court. And you know, one lawyer
I spoke to who regularly looks at Fifth Circuit opinion
says that seems to be a role that Judge Dennis
(16:48):
sort of relishes because you know, it helps develop the law.
You know, even if your dissent isn't the controlling opinion,
maybe it raises the issue to the Supreme Court, maybe
it flags it to another circuit as they're considering a case.
You know, it's still a way to be vocal. Even
if your point of view isn't the winning one.
Speaker 2 (17:06):
Now, the case is that you mentioned in the beginning
are headed to the on bank panel, so they could
be reversed.
Speaker 4 (17:13):
Yes, So when the Fifth Circuit takes up a case
en banc, they actually vacate the lower panel opinion, So
all those rulings have actually already been tossed out by
virtue of the cases being reheard. So whatever the en
banc Court decides will be the holding opinion for all
of those cases. And you know, it's interesting. The Fifth
(17:34):
Circuit has a rule that if a senior judge was
on the panel that heard the case in the first place,
then they can sit on the en banc court alongside
all the active judges, which are typically the members of
that full panel. So it sort of changes the composition
a little bit because you might think, oh, I have
you know, eight stalwart conservatives and they're going up against
(17:59):
you know, six to eight other moderates or liberals, and
you know, I'm gonna have to focus on this judge
or that judge just sort of win them over. But
if you have a senior judge, then maybe that moderate
pool expands a little bit more than you thought it would.
And that sort of changes the calculus for lawyers who
are arguing before the full Fifth Circuit.
Speaker 2 (18:18):
To what do you attribute the spike in on bank cases.
Speaker 4 (18:23):
You know that a lot of them are hot button issues.
I mean we're talking about is some of the really
social you know, quote unquote culture war topics that are
coming up right now. You know, the Fifth Circuit during
the Biden administration was a hotbed of litigation. They've sort
of lost that since so many cases are now going
to the First Circuit or the Fourth or the DC Circuit.
(18:45):
You know, this is an opportunity for them to weigh
in on these really important topics. You know, maybe as
fewer of those cases that are going through that circuit.
I don't know this for a fact, but maybe there's
more of an appetite for taking on those sorts of
cases and be able to weigh in on those sorts
of topics. And I mean some of these judges are
very vocal, so they're not scared to weigh in on
(19:08):
these issues either. But you know, especially if there's an
old precedent on the court that they want to change,
this is the opportunity for folks like the Trump appointees
to do that. You know, if that's happening in the
First Amendment space, and like in the Ten Commandments case,
you know, that's something that they'll be able to you know,
shape moving forward. And then you know, if it goes
(19:30):
up to the Supreme Court and they adopt that philosophy,
well then that's national precedent that they were able to
have a role in playing and making sure that plays
out that way.
Speaker 2 (19:39):
You quoted from Senior Judge Edith Brown Clement in twenty
nineteen saying that Mississippi simply had the poor luck of
drawing a majority minority panel in seeking a stay in
a voting rights case. Is it stated or unstated that
there is this political element where the Democratic appointees are
more liber role and the Republican appointees are more conservative generally, you.
Speaker 4 (20:04):
Know, I think judges are sort of reluctant to put
a label on like that, and I think some practicing
lawyers for the Court are at least publicly reluctant to
do that sort of thing as well. So, you know,
I think folks like Edith Brownkleman have no issue in
putting that forward. I can't say that would apply to
the rest of her colleagues.
Speaker 2 (20:26):
Well, it would be nice if you couldn't identify politics
in some of these decisions. Thanks so much, Jacqueline. That's
Jacqueline Thompson of Bloomberg Law. The Supreme Court has made
it tougher on agencies with a decision that created a
new legal test to determine when regulators have to bring
(20:47):
cases in court rather than before in house judges. So far,
agencies are winning the battle, with federal courts siding with
them in thirty four out of thirty eight rulings. Joining
me is constitutional law expert Harold Krant, a professor at
to Chicago Kent College of Law. How start by explaining
(21:08):
the Supreme Court limiting agencies and it's ruling in the
Jercracy case.
Speaker 5 (21:14):
So, one of the ways that the Supreme Court has
cut back on the power of administrative agencies is by
directing or at least allowing companies to say that they
belong in court, not before the agencies. And the Court's
done this in an unusual way by cutting back on
something that used to be called the public rights doctrine,
(21:35):
which said that if the government's involved, it need not
go to court. It can instead proceed with a fine
or a disbarment or a license prevocation before an administrative
agency and have the issue decided first there with appeal
to the court thereafter. It's cheaper to go before the agency,
(21:55):
it's more efficient. And yet the Court has said that
that's now intention with its new understanding of the Seventh Amendment.
And so the Court directed in the Supreme Court decision
called Jarcracy, that no longer can the government rely.
Speaker 3 (22:11):
Upon these in house agency.
Speaker 5 (22:13):
In Ministry of Tribunals if and this is where it
gets tricky, if the action before the Ministry of Tribunal
resembles a common law action that was available at our
Nations founding over two hundred years ago. So it's a
complicated historical based test. And then the courts have to
(22:36):
pick and choose and decide, well, is this a fraud
claim that looks like something of common law? Is this
a fine for a privacy violation which may not have
existed in common law? And so it's going to take
a while for the lower courts to sort through this,
to decide what kinds of government penalties can be heard
(22:59):
before in the Ministry of Tribunal and what kind must
go before a court and because the Seventh Amendment attaches,
that's slower, it's more ponderous, And so there's a lot
of important stakes involved here.
Speaker 2 (23:14):
So now, a Bloomberg review found that by a wide margin,
companies lost most of their initial attempts to stop agency
in house judges from hearing a wide range of disputes.
Federal courts sided against the challengers against the companies in
thirty four of thirty eight rulings. Agencies also prevailed in
(23:36):
seven of nine Appeals court rulings. Why are these cases
leading to these results? Are judges reluctant to pull the triggers,
so to speak?
Speaker 5 (23:46):
I think there's so many holes in the Supreme Court's
decision that the low court judges simply don't have a
good playbook by which to decide whether or not the
Seventh Amendment would attach. I'm going to give you a
couple of examples.
Speaker 3 (24:00):
Cases involved the.
Speaker 6 (24:01):
Federal Communications Commission, which has issued huge fines against Verizon
and against AT and T for compromising customer location data.
Speaker 3 (24:13):
And these are millions of dollars of fonts, and.
Speaker 5 (24:15):
So the court has to decide, well, is this a
we Obviously there was no customer location information available at
the time of the founding. On the other hand, people
not taking care of other people's sort of property was
well known the time of the framing, and.
Speaker 3 (24:34):
So what do you do.
Speaker 5 (24:36):
And two courts have held that the fines are okay,
and one court is held that the fine is not okay,
and so this case may end up going to the
Supreme Court for clarification. Another case that where there's a
split was an interesting case. We had to do with
the Department of Labor trying to protect immigrant workers or
(24:56):
visas making sure that their place of employment was healthy
in terms of where they lived, in terms.
Speaker 3 (25:03):
Of bathroom breaks, in terms of food breaks, et cetera.
Speaker 5 (25:06):
And both cases were fines, and one court held that, well,
this is just typical sort of finding a company for
violation of the conditions of employment. This looks like a
common law action. And the other court says, no, this
is unique. This is immigration. This is more tied to
the public rights. And therefore we're not going to say
(25:29):
that there needs to be a Seventh Amendment for the
employer here. So it's going to take a while for
these cases to sift. The Supreme Court is going to
have to get back into the fray because it is
such a surprising decision. It reversed so many generations of
cases and without many guidelines, and so the Court's going
(25:50):
to have to get back into the fray.
Speaker 2 (25:52):
I mean, does this point out how cumbersome and at
times inexplicable the test is to go back in history
and see what the law was at the founding.
Speaker 5 (26:06):
I mean, most people don't think the Supreme Court's test
makes much sense.
Speaker 3 (26:10):
Now, the Seventh Amendment.
Speaker 5 (26:11):
Does have a kernel to it that the Court has followed,
which says that to determine whether normally a case should
go before a jury trial does depend upon whether or
not the cause of action resembles something that existed at
the time the Seventh Amendment was ratified. So at least
we have that test, and we've looked at it. But
(26:32):
the difficulty here is that these common law causes of
action now are brought by the government in terms of
fines and other penalties, so they're not like timon law
causes of action directly, and if there is a the
government involved, we've long thought that the Seventh Amendment doesn't apply,
and so the Court, by changing the rules of the game,
(26:56):
has so confusion and it's going to take more cases
for lower courts to understand what is the ambit of
when these companies do deserve a jury trial before their
claim bines can be adjudicated.
Speaker 2 (27:10):
And some agencies can't bring cases in court.
Speaker 5 (27:15):
Most agencies do have the power. It's just a matter
of the time and expense. Jury trials take long time,
they're far more expensive, and plus it would have a
negative impact on the courts. The courts are not exactly
the static about having an increase in workload to hear.
Speaker 3 (27:32):
These fines and other kinds of cases.
Speaker 5 (27:35):
So it's going to back up the workload in the
courts as well.
Speaker 2 (27:40):
And let's turn for a moment to the indictment of
former FBI director James Comey. In an opinion a magistrate
judge has already outlined eleven potential mistakes by the prosecution
in that case, the prosecutor being newly a pointed prosecutor,
(28:01):
Lindsay Halligan, the interim us Attorney for the Eastern District
of Virginia, who had no prosecutorial experience at all when
she went before the grand jury to get Comy indicted,
and in court yesterday she acknowledged that the full grand
jury never reviewed the indictment that was actually filed against Comy.
Speaker 5 (28:28):
So there was at the minimum of a clerical error
that could be turned into such as procedural error that
the entire case could be compromised because the grand jury
actually voted on an.
Speaker 3 (28:43):
Indictment that it didn't see.
Speaker 5 (28:45):
Evidently, Lindsay Halligan cleaned up the first indictment because the
grand jury rejected one of the claims that she had
brought and so changed the indictment and only showed it
to the four person as opposed to the members of
grand jury themselves. So they actually when they voted on
an indictment, they did not see the actual legally perfect
(29:07):
indictment that was at stake there. So we have a
mismatch between what the grand jury voted on and what
the indictment that is moving forward now. That may seem
to listeners like a sort of a silly little mistake,
because the grand jury knew what was in the indictment,
and it is this pales I think before in terms
of a mistake in comparison to the other mistakes that
(29:30):
the magistrate uncovered just earlier in this week.
Speaker 3 (29:33):
But nonetheless it's a legal error.
Speaker 5 (29:36):
And it's an error that may doom the indictment, and
so she'd have to go back and seek another one,
because under federal law there is a six month gap
where you are allowed to seek an indictment if one
is one unravels, and so that may be what happens.
But there's other penalties that the judge may impose for
(29:57):
the other mistakes, such as obviously if it if the
judge finds that it's a vindictive prosecution, then the entire
prosecution goes away and the dictment cannot be refined.
Speaker 2 (30:07):
One of the major errors she made was basically to
say that Comy doesn't have a Fifth Amendment right not
to testify, and that you know, the jurors could hold
that against him, that he didn't testify at the grand jury.
I mean, that's that's a huge mistake, isn't it.
Speaker 3 (30:27):
Oh, it's a huge mistake.
Speaker 5 (30:28):
And then to also say that the grand jury could
consider that the government will bring additional evidence at trial
again makes a mockery of the whole grand jury system,
because the grand jury, as a tech book matter, has
to decide whether or not there's enough information presented to
them to establish probable cause, and so you know in
(30:49):
that sense, mistake after a mistake, and as I think
that the court may say that as a penalty for
all these mistakes and for the vindictive prosecution, that no indictment,
further indictment can even be pursued.
Speaker 3 (31:05):
That's a possibility. It's a strong possibility.
Speaker 5 (31:07):
Not for sure, but I feel pretty comfortable this indictment
is going to be doomed.
Speaker 2 (31:11):
Hell, everyone says statute of limitations, But you think that
the law that allows a prosecutor to cure an indictment
within six months, you think that that would nullify the
satu of limitations problems.
Speaker 3 (31:26):
Yeah, it would.
Speaker 5 (31:27):
If the court decides that this is a technical violation,
and if it's a mere technical violation like showing the
wrong paper to the grand jury, then as a matter
of course, I think the court would say, you can
remedy this by having a new indictment within six months
without violating the statute of limitations. On the other hand,
if this is because of bad behavior, and it certainly
(31:48):
seems like was bad behavior, then the penalty may be
throwing out the indictment entirely, and the statute of limitations
has run.
Speaker 2 (31:56):
Thanks so much, Hall, that's Professor Harrold Krant of a
Chicago College of Law. 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, And remember
(32:17):
to tune into The Bloomberg Law Show every weeknight at
ten pm Wall Street Time. I'm Jimie Grosso and you're
listening to Bloomberg
This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2 (00:08):
It's a landmark ruling. Today New Jersey became the first
state where prosecutors can't build murder cases on medical diagnoses
that the mere shaking of a baby caused a child's
death unless there's further evidence of trauma. The New Jersey
Supreme Court is the first in the country to block
(00:30):
a shaken baby syndrome theory when investigations into child deaths
don't show other injuries such as bruising or neck damage.
Joining me is Bloomberg Law Senior correspondent Alex Ebert. Alex
tell us about today's decision.
Speaker 1 (00:47):
This decision is the landmark opinion issued by the New
Jersey Supreme Court that, for the first time for a
high court in the country, it says that you cannot
bring a shaken baby determination from a medical perspective to
charge someone with child assault, where if there's no external
evidence of abuse such as bruising or injuries on a
(01:10):
child's neck, you can't bring the charges at all. And
the reason why that is is because there's big conflict
in medical circles about whether or not these reliable symptoms
that we thought for years were evidence of shaking baby syndrome.
Child abuse could be caused by other means, and there's
been new studies that show that perhaps these triad of
(01:34):
symptoms such as brain bleeding or bruising on the eyes
isn't actually enough to bring that evidence to court. The
reason this is a huge landmark ruling is because we've
seen bubbling up across the country different medical groups, biomechanical groups,
and defense organizations saying we can no longer ignore the
(01:57):
conflict and evidence between what we thought was reliable in
terms of child abuse and what is now questionable.
Speaker 2 (02:05):
And this decision involves the cases of two fathers who
were facing allegations of child abuse.
Speaker 1 (02:12):
Yeah, the court was considering the cases of two fathers
who both had premature children and were taking care of them,
and they had seizure symptoms. These dads brought their kids
to the hospital to get them looked after, and doctors determined,
even though there were no external symptoms of abuse such
as bruising, that these fathers were responsible for injuring their
(02:34):
own children by shaking them or slamming them, and the
State Public Defender's office ran to the judge and said Listen,
we have these cases all across the country that are
questioning whether or not you can bring this sort of
determination from an expert in court.
Speaker 2 (02:51):
In this one hundred and nine page ruling, did the
court track the scientific evidence?
Speaker 1 (02:57):
Yeah, the court went deep. So the majority of and
Jersey's Supreme Court went through study after study going back
to the nineteen sixties looking at how this diagnosis shaking
baby syndrome originated. It went back to whiplash studies and
cars using monkeys to determine exactly what happens to human
beings when they're shaken, and it progressed through different studies
(03:19):
by pediatricians and neurosurgeons up through the nineties, when a
large medical association for the United States said, it's a
presumption that if you have these symptoms that there's child abuse.
Speaker 2 (03:31):
And where do the medical association stand now?
Speaker 1 (03:34):
The medical association stand behind a diagnosis, which is what
makes this complex. See, you have the industry saying we
need to be able to diagnose these children and make
sure that we can take them out of bad situations.
But you now have a state supreme court saying just
because you have this diagnosis isn't enough to rule out
(03:54):
anything else, and that's not enough to come to court
and say, based on my medical opinion, this is the
only thing that could have happened.
Speaker 2 (04:03):
There are seven members of the New Jersey Supreme Court,
and this was a six to one decision.
Speaker 1 (04:09):
One of the justices issued a dissent here, siding with
the medical organization, saying, listen, we can't be second guessing
the medical establishment here. We are not scientists. We are
not people that investigate the scientific method. And she focused
mostly on the medical associations that all backed up this diagnosis.
(04:32):
Were the majority focused on biomechanical experts, who said, we
originated a lot of the science behind how you determine
whiplash and things like that, and if you don't have
our consensus for this, then the consensus of the medical
industry doesn't necessarily hold water.
Speaker 2 (04:49):
Can this decision be appealed?
Speaker 1 (04:51):
It wouldn't be difficult to appeal this decision. It would
have to go to the United States Supreme Court, because
that is the only direct appeal from a Supreme court.
There has not been a ruling on this to my knowledge,
although there is some quotation of a Ginsburg descent inside
of the ruling today, this is now going to go
(05:12):
back to the trial court and these charges will be
dismissed against these parents.
Speaker 2 (05:16):
Is New Jersey different from other courts in the way
it's been handling these cases.
Speaker 1 (05:22):
Up to this point, there has never been a decision
that goes this far. Though, you have courts start to
become extremely skeptical of this no external evidence shaken baby
syndrome theory. You've had, especially the Michigan Supreme Court issued
decision saying, hey, we need to provide counsel that does
a good job of contesting the state's evidence here at
(05:43):
a deep level. And you've also seen criminal courts in
Texas and the Texas legislature really question whether or not
a death row inmate there should be in prison.
Speaker 2 (05:55):
So, up until this point, how would prosecutors can instruct
a case against someone based on shaken baby syndrome? They
needed some physical evidence.
Speaker 3 (06:07):
Right do so?
Speaker 1 (06:09):
Doctors create this differential diagnosis by looking at, you know,
different markers on the child when they come in to
get treatment. You look at things like bleeding on the
brain or bleeding in the eyes and say, Okay, something
happened to this child. It's more than just seizures, right
or they look back at the child's past and say,
did you have any accidental injury? You know, did billy
(06:30):
you know, fall down the stairs? And in cases where
that's not present, they you know, think, okay, we're ruling
out other things. It must be something else. But the
problem there is the justices in New Jersey say that's
not enough to come to court and say we've ruled
out everything else. It can only be this.
Speaker 2 (06:50):
So you need something else, something that physically shows that's right.
Speaker 1 (06:56):
You need something else. They call it external evidence, but
it's some sort of physical external issues with the body, right,
damage to someone's neck or bruising, you know, other signs
of abuse. And the descent here calls out that this
means that there could be parents or childcare providers or
other people that get away with abusing children because there's
(07:20):
just no external evidence of it. But on the other side,
you have decades of people saying we're putting away parents
and usually fathers on perhaps flimsy evidence, just because a
doctor couldn't find a reason for it.
Speaker 2 (07:34):
Are there a lot of shaken baby cases in this country?
Speaker 1 (07:38):
I'm unaware of reading through the briefs how many there are.
But we're looking at hundreds. There were several going on
at the time when this decision was coming up in
New Jersey alone.
Speaker 2 (07:51):
So this is, you know, a forward thinking decision. Cutting
edge is the New Jersey Supreme Court known for that.
Speaker 1 (07:59):
New Jersey Supreme Court is known for this sort of thing.
It has extremely robust protections when it comes to privacy,
and it's usually at the cutting edge of Fourth Amendment jurisprudence.
We've talked in the past about how skeptical they are around,
you know, looking at things like someone's Google accounts and
other subpoena information. But this falls in line with the
(08:20):
court's skepticism towards allowing police and prosecutors to introduce evidence
without it being questioned. Here you sort of see the
justices line up in a way that we haven't in
another court to say, in this instant where someone is
saying it can only be this, we can't allow that
sort of thing when there's not enough certainty in the field.
(08:43):
We've seen decisions bubble up that look at client accountability
for lawyers in this regard, right, but we haven't seen
a court go this far. It'll be really interesting to
see if other courts go as far as New Jersey
and strip this tool away from prosecutors to tackle child abuse.
(09:03):
You know, especially in our current climate where child abuse
and the abusive minors is a huge problem and concern.
You know, potentially taking away that tool might be more
politically sensitive in some parts of the country than others.
Speaker 2 (09:17):
Tough balancing decisions, no doubt, Thanks so much, Alex. That's
Bloomberg Law Senior correspondent Alex Ebert. A handful of Fifth
Circuit judges are mellowing out some rulings from one of
the most conservative federal appellate courts, and they're the senior
judges Bloomberg Laws. Jacqueline Thompson has done some research on
(09:41):
this right, so start by telling us about these decisions
from the three judge panels that are a little more moderate,
less conservative than the full court's decisions usually are.
Speaker 4 (09:56):
I mean, when we think about the US Court of
Appeals for the Fifth Circuit, you know, we immediately think
of a conservative appeals court, and you know, a lot
of their rulings are very conservative. But there have been
a few decisions lately that don't necessarily fit in with
that pattern. For example, there was a three judge panel
that said a Louisiana law that mandated the display of
(10:17):
the Ten Commandments in public schools was unconstitutional. There was
another one saying that the Texas A and M president
at the time was wrong in canceling a student drag
show on campus. And you know, those are rulings that
we think of as not going in the conservative pattern
that we think of when we think of the Fifth Circuit. So,
(10:39):
you know, I started to take a step back and
look at who was actually on those panels. And for
a lot of the Fifth Circuit argument panels, often it
is a Trump appointe or more conservative member, a more
moderate member of the court, and then a senior judge.
And that's not always the case. Sometimes there will be
multiple Trump appointees. Sometimes there are panels with ultraum appointees.
(11:00):
Sometimes it's called George W. Bush appointees. But you know,
for these instances, that seemed to be the composition either
Trump or Reagan appointee dissenting against a majority of the
panel that was a moderate judge or a senior judge.
And so I said, okay, well, what's the role that
the senior judges are playing here? And you know, it
just seemed to have more of an outsize impact than
(11:22):
I expected.
Speaker 2 (11:24):
Tell us about the composition of the Fifth Circuit itself.
Speaker 4 (11:29):
Yeah, so I believe there are seventeen active judges right now,
and there are on top of that seven senior judges
who are still here in cases. One other senior judge
actually went fully inactive earlier this year, so that left
just to seven. We have six Trump appointees on that court.
We have two Biden appointees, we have I believe two
(11:53):
Obama appointees, a couple of Clinton appointees, and then about.
Speaker 1 (11:58):
Three or four George W.
Speaker 4 (12:00):
Bush appointees acting as active judges. For the most part,
one is the senior judge. We have two Reagan appointees
who are active judges, and then we have other Reagan
appointees who are senior judges. One senior judge who has
been incredibly active is Carolyn dining King. She is a
Carter appointee. So you know, it really goes the whole
(12:24):
spectrum of presidents who have appointed judges to the Fifth
Circuit who are still here in cases and who are
still playing a really active role on this court. I
mean the Reagan judges are very active. I mean two
of them aren't taking senior status, which would give Trump
the opportunity to fill two seats on that court and
sort of expand his wing. But you know, they're often
(12:47):
in line with the Trump appointees on the court. So
I can't speak to why they're not taking senior status,
but that may be part of it that you know,
they're like, hey, look, I'm super relevant right now. I'm
able to build up these majorities with other factions at
the court right now.
Speaker 2 (13:02):
So will you explain in general, because there are exceptions,
as you note in your article, are the senior judges
more moderate than the recent appointees, particularly the Trump appointees.
Speaker 4 (13:15):
I think that's right. I think there are more moderate.
They're more of an old school conservative. You know, if
you sort of want to put the Republican appointed judges
in two factions, you might have, you know, the active
Reagan appointees and the current Trump appointees and one basket,
and then senior judges who are also Republican appointees and
(13:37):
folks who are like George W. Bush appointees and another basket.
Sometimes there's some crossover there, especially on the fringes. There's
one Triump appointee who might be more in line with
the moderate wing, and then one Bush appointing, you might
be more in line with the Trump wing. But you know,
for the most part, the senior judges they've been around
for a while, They've been appointed by presidents of a
(13:58):
different generation, and they've spent decades sitting on this court.
And you know, because of that, they may have more
experience and make them less willing to question settle precedent
or to think, hey, maybe we should look at this
a different way than we happen in the past.
Speaker 2 (14:14):
And the Fifth Circuit has been sort of trying to
test the envelope or move the case law to the
to the right in many circumstances, and they've been getting
reviewed by the Supreme Court a lot more than other circuits.
Speaker 4 (14:31):
You're right that the Fifth Circuit does have an outsized
number of cases that are going to the US Supreme
Court and that are regularly being considered by the justices.
Some of that might be because these judges are writing
dissents or concurring opinions that sort of say, hey, take
a look at this case. I mean Dobbs, which over
(14:52):
turn Row that was a Fifth Circuit case. Jim Howick
Trump appointing wrote the opinion in that that sort of
laid the groundwork for the un Supreme Court to take
up that case. And you know, we see that in
other instances too. Judge Patrick Higginbotham, who was a Reagan appointee,
he's a senior judge. He had written an opinion in
a case involving porn Hub and Texas law and age
(15:15):
verification requirements for you know, explicit adult websites that you know,
some people say was sort of a way for the
Supreme Court to take up that case because he said, hey,
this is you know, what the precedent is on the books,
and that allowed the justices to pick it up and
then you know, alter or trust that old precedent and
say this is how it should be applied moving forward
(15:37):
and upholding that Texas law.
Speaker 2 (15:39):
Are the Democratic appointees on that court, usually in dissent
or not.
Speaker 4 (15:45):
They can be in descent. Sometimes they line up with
the moderate judges. We see folks who are George W.
Bush appointees like Leslie Southwick or Katerina Haynes. They will
sometimes be lined up with the Democratic appointees who are
folks like Steve Higginson. Judge Graves comes to mind, Carl Stewart.
You know, Diana Douglas and Irma Ramirez are the two
(16:07):
new Biden appointees, you know, so they're all in the
mix as well. And we do find that folks like Haynes,
like Southwick are more willing to reach agreement with their
liberal colleagues, and maybe other members of the court are.
Speaker 2 (16:21):
And you mentioned a Clinton appointee who does a lot
of dissents.
Speaker 4 (16:26):
Yes, James Dennis. He is a senior member of the Court.
He only went senior a few years ago, and you know,
he's been on the court for decades once again, and
right now he's sort of viewed as one of the
big dissenters on the court. And you know, one lawyer
I spoke to who regularly looks at Fifth Circuit opinion
says that seems to be a role that Judge Dennis
(16:48):
sort of relishes because you know, it helps develop the law.
You know, even if your dissent isn't the controlling opinion,
maybe it raises the issue to the Supreme Court, maybe
it flags it to another circuit as they're considering a case.
You know, it's still a way to be vocal. Even
if your point of view isn't the winning one.
Speaker 2 (17:06):
Now, the case is that you mentioned in the beginning
are headed to the on bank panel, so they could
be reversed.
Speaker 4 (17:13):
Yes, So when the Fifth Circuit takes up a case
en banc, they actually vacate the lower panel opinion, So
all those rulings have actually already been tossed out by
virtue of the cases being reheard. So whatever the en
banc Court decides will be the holding opinion for all
of those cases. And you know, it's interesting. The Fifth
(17:34):
Circuit has a rule that if a senior judge was
on the panel that heard the case in the first place,
then they can sit on the en banc court alongside
all the active judges, which are typically the members of
that full panel. So it sort of changes the composition
a little bit because you might think, oh, I have
you know, eight stalwart conservatives and they're going up against
(17:59):
you know, six to eight other moderates or liberals, and
you know, I'm gonna have to focus on this judge
or that judge just sort of win them over. But
if you have a senior judge, then maybe that moderate
pool expands a little bit more than you thought it would.
And that sort of changes the calculus for lawyers who
are arguing before the full Fifth Circuit.
Speaker 2 (18:18):
To what do you attribute the spike in on bank cases.
Speaker 4 (18:23):
You know that a lot of them are hot button issues.
I mean we're talking about is some of the really
social you know, quote unquote culture war topics that are
coming up right now. You know, the Fifth Circuit during
the Biden administration was a hotbed of litigation. They've sort
of lost that since so many cases are now going
to the First Circuit or the Fourth or the DC Circuit.
(18:45):
You know, this is an opportunity for them to weigh
in on these really important topics. You know, maybe as
fewer of those cases that are going through that circuit.
I don't know this for a fact, but maybe there's
more of an appetite for taking on those sorts of
cases and be able to weigh in on those sorts
of topics. And I mean some of these judges are
very vocal, so they're not scared to weigh in on
(19:08):
these issues either. But you know, especially if there's an
old precedent on the court that they want to change,
this is the opportunity for folks like the Trump appointees
to do that. You know, if that's happening in the
First Amendment space, and like in the Ten Commandments case,
you know, that's something that they'll be able to you know,
shape moving forward. And then you know, if it goes
(19:30):
up to the Supreme Court and they adopt that philosophy,
well then that's national precedent that they were able to
have a role in playing and making sure that plays
out that way.
Speaker 2 (19:39):
You quoted from Senior Judge Edith Brown Clement in twenty
nineteen saying that Mississippi simply had the poor luck of
drawing a majority minority panel in seeking a stay in
a voting rights case. Is it stated or unstated that
there is this political element where the Democratic appointees are
more liber role and the Republican appointees are more conservative generally, you.
Speaker 4 (20:04):
Know, I think judges are sort of reluctant to put
a label on like that, and I think some practicing
lawyers for the Court are at least publicly reluctant to
do that sort of thing as well. So, you know,
I think folks like Edith Brownkleman have no issue in
putting that forward. I can't say that would apply to
the rest of her colleagues.
Speaker 2 (20:26):
Well, it would be nice if you couldn't identify politics
in some of these decisions. Thanks so much, Jacqueline. That's
Jacqueline Thompson of Bloomberg Law. The Supreme Court has made
it tougher on agencies with a decision that created a
new legal test to determine when regulators have to bring
(20:47):
cases in court rather than before in house judges. So far,
agencies are winning the battle, with federal courts siding with
them in thirty four out of thirty eight rulings. Joining
me is constitutional law expert Harold Krant, a professor at
to Chicago Kent College of Law. How start by explaining
(21:08):
the Supreme Court limiting agencies and it's ruling in the
Jercracy case.
Speaker 5 (21:14):
So, one of the ways that the Supreme Court has
cut back on the power of administrative agencies is by
directing or at least allowing companies to say that they
belong in court, not before the agencies. And the Court's
done this in an unusual way by cutting back on
something that used to be called the public rights doctrine,
(21:35):
which said that if the government's involved, it need not
go to court. It can instead proceed with a fine
or a disbarment or a license prevocation before an administrative
agency and have the issue decided first there with appeal
to the court thereafter. It's cheaper to go before the agency,
(21:55):
it's more efficient. And yet the Court has said that
that's now intention with its new understanding of the Seventh Amendment.
And so the Court directed in the Supreme Court decision
called Jarcracy, that no longer can the government rely.
Speaker 3 (22:11):
Upon these in house agency.
Speaker 5 (22:13):
In Ministry of Tribunals if and this is where it
gets tricky, if the action before the Ministry of Tribunal
resembles a common law action that was available at our
Nations founding over two hundred years ago. So it's a
complicated historical based test. And then the courts have to
(22:36):
pick and choose and decide, well, is this a fraud
claim that looks like something of common law? Is this
a fine for a privacy violation which may not have
existed in common law? And so it's going to take
a while for the lower courts to sort through this,
to decide what kinds of government penalties can be heard
(22:59):
before in the Ministry of Tribunal and what kind must
go before a court and because the Seventh Amendment attaches,
that's slower, it's more ponderous, And so there's a lot
of important stakes involved here.
Speaker 2 (23:14):
So now, a Bloomberg review found that by a wide margin,
companies lost most of their initial attempts to stop agency
in house judges from hearing a wide range of disputes.
Federal courts sided against the challengers against the companies in
thirty four of thirty eight rulings. Agencies also prevailed in
(23:36):
seven of nine Appeals court rulings. Why are these cases
leading to these results? Are judges reluctant to pull the triggers,
so to speak?
Speaker 5 (23:46):
I think there's so many holes in the Supreme Court's
decision that the low court judges simply don't have a
good playbook by which to decide whether or not the
Seventh Amendment would attach. I'm going to give you a
couple of examples.
Speaker 3 (24:00):
Cases involved the.
Speaker 6 (24:01):
Federal Communications Commission, which has issued huge fines against Verizon
and against AT and T for compromising customer location data.
Speaker 3 (24:13):
And these are millions of dollars of fonts, and.
Speaker 5 (24:15):
So the court has to decide, well, is this a
we Obviously there was no customer location information available at
the time of the founding. On the other hand, people
not taking care of other people's sort of property was
well known the time of the framing, and.
Speaker 3 (24:34):
So what do you do.
Speaker 5 (24:36):
And two courts have held that the fines are okay,
and one court is held that the fine is not okay,
and so this case may end up going to the
Supreme Court for clarification. Another case that where there's a
split was an interesting case. We had to do with
the Department of Labor trying to protect immigrant workers or
(24:56):
visas making sure that their place of employment was healthy
in terms of where they lived, in terms.
Speaker 3 (25:03):
Of bathroom breaks, in terms of food breaks, et cetera.
Speaker 5 (25:06):
And both cases were fines, and one court held that, well,
this is just typical sort of finding a company for
violation of the conditions of employment. This looks like a
common law action. And the other court says, no, this
is unique. This is immigration. This is more tied to
the public rights. And therefore we're not going to say
(25:29):
that there needs to be a Seventh Amendment for the
employer here. So it's going to take a while for
these cases to sift. The Supreme Court is going to
have to get back into the fray because it is
such a surprising decision. It reversed so many generations of
cases and without many guidelines, and so the Court's going
(25:50):
to have to get back into the fray.
Speaker 2 (25:52):
I mean, does this point out how cumbersome and at
times inexplicable the test is to go back in history
and see what the law was at the founding.
Speaker 5 (26:06):
I mean, most people don't think the Supreme Court's test
makes much sense.
Speaker 3 (26:10):
Now, the Seventh Amendment.
Speaker 5 (26:11):
Does have a kernel to it that the Court has followed,
which says that to determine whether normally a case should
go before a jury trial does depend upon whether or
not the cause of action resembles something that existed at
the time the Seventh Amendment was ratified. So at least
we have that test, and we've looked at it. But
(26:32):
the difficulty here is that these common law causes of
action now are brought by the government in terms of
fines and other penalties, so they're not like timon law
causes of action directly, and if there is a the
government involved, we've long thought that the Seventh Amendment doesn't apply,
and so the Court, by changing the rules of the game,
(26:56):
has so confusion and it's going to take more cases
for lower courts to understand what is the ambit of
when these companies do deserve a jury trial before their
claim bines can be adjudicated.
Speaker 2 (27:10):
And some agencies can't bring cases in court.
Speaker 5 (27:15):
Most agencies do have the power. It's just a matter
of the time and expense. Jury trials take long time,
they're far more expensive, and plus it would have a
negative impact on the courts. The courts are not exactly
the static about having an increase in workload to hear.
Speaker 3 (27:32):
These fines and other kinds of cases.
Speaker 5 (27:35):
So it's going to back up the workload in the
courts as well.
Speaker 2 (27:40):
And let's turn for a moment to the indictment of
former FBI director James Comey. In an opinion a magistrate
judge has already outlined eleven potential mistakes by the prosecution
in that case, the prosecutor being newly a pointed prosecutor,
(28:01):
Lindsay Halligan, the interim us Attorney for the Eastern District
of Virginia, who had no prosecutorial experience at all when
she went before the grand jury to get Comy indicted,
and in court yesterday she acknowledged that the full grand
jury never reviewed the indictment that was actually filed against Comy.
Speaker 5 (28:28):
So there was at the minimum of a clerical error
that could be turned into such as procedural error that
the entire case could be compromised because the grand jury
actually voted on an.
Speaker 3 (28:43):
Indictment that it didn't see.
Speaker 5 (28:45):
Evidently, Lindsay Halligan cleaned up the first indictment because the
grand jury rejected one of the claims that she had
brought and so changed the indictment and only showed it
to the four person as opposed to the members of
grand jury themselves. So they actually when they voted on
an indictment, they did not see the actual legally perfect
(29:07):
indictment that was at stake there. So we have a
mismatch between what the grand jury voted on and what
the indictment that is moving forward now. That may seem
to listeners like a sort of a silly little mistake,
because the grand jury knew what was in the indictment,
and it is this pales I think before in terms
of a mistake in comparison to the other mistakes that
(29:30):
the magistrate uncovered just earlier in this week.
Speaker 3 (29:33):
But nonetheless it's a legal error.
Speaker 5 (29:36):
And it's an error that may doom the indictment, and
so she'd have to go back and seek another one,
because under federal law there is a six month gap
where you are allowed to seek an indictment if one
is one unravels, and so that may be what happens.
But there's other penalties that the judge may impose for
(29:57):
the other mistakes, such as obviously if it if the
judge finds that it's a vindictive prosecution, then the entire
prosecution goes away and the dictment cannot be refined.
Speaker 2 (30:07):
One of the major errors she made was basically to
say that Comy doesn't have a Fifth Amendment right not
to testify, and that you know, the jurors could hold
that against him, that he didn't testify at the grand jury.
I mean, that's that's a huge mistake, isn't it.
Speaker 3 (30:27):
Oh, it's a huge mistake.
Speaker 5 (30:28):
And then to also say that the grand jury could
consider that the government will bring additional evidence at trial
again makes a mockery of the whole grand jury system,
because the grand jury, as a tech book matter, has
to decide whether or not there's enough information presented to
them to establish probable cause, and so you know in
(30:49):
that sense, mistake after a mistake, and as I think
that the court may say that as a penalty for
all these mistakes and for the vindictive prosecution, that no indictment,
further indictment can even be pursued.
Speaker 3 (31:05):
That's a possibility. It's a strong possibility.
Speaker 5 (31:07):
Not for sure, but I feel pretty comfortable this indictment
is going to be doomed.
Speaker 2 (31:11):
Hell, everyone says statute of limitations, But you think that
the law that allows a prosecutor to cure an indictment
within six months, you think that that would nullify the
satu of limitations problems.
Speaker 3 (31:26):
Yeah, it would.
Speaker 5 (31:27):
If the court decides that this is a technical violation,
and if it's a mere technical violation like showing the
wrong paper to the grand jury, then as a matter
of course, I think the court would say, you can
remedy this by having a new indictment within six months
without violating the statute of limitations. On the other hand,
if this is because of bad behavior, and it certainly
(31:48):
seems like was bad behavior, then the penalty may be
throwing out the indictment entirely, and the statute of limitations
has run.
Speaker 2 (31:56):
Thanks so much, Hall, that's Professor Harrold Krant of a
Chicago College of Law. 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, And remember
(32:17):
to tune into The Bloomberg Law Show every weeknight at
ten pm Wall Street Time. I'm Jimie Grosso and you're
listening to Bloomberg
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