November 28, 2025 • 38 mins
On this holiday weekend edition of Bloomberg Law, we take a look at a few notable cases before the Supreme Court. Hosted by June Grasso.
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One by one, Google settled with all of these other plaintiffs.
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Trial judge may well want to hold a hearing.
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They have never said this case.
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Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2 (00:45):
Welcome to a special holiday edition of the Bloomberg Law Show.
I'm June Grosso. Ahead. In this hour, we'll focus on
cases before the Supreme Court. The justices will decide when
it's okay for police to enter a home during an emergency,
whether a judge can bar a criminal defense attorney from
(01:05):
talking to their own clients during their testimony, and whether
to invalidate Colorado's ban on conversion therapy for miners.
Speaker 5 (01:16):
If the police could not enter this house based on
the facts that they knew then. I don't know when
the police are ever going to be able to enter
a house to prevent somebody from committing suicide.
Speaker 2 (01:33):
Police didn't have a warrant when they entered the home
of an army veteran in Montana. But they weren't there
to arrest William Trevor Case. They were there to help him.
His ex girlfriend said that Case had threatened suicide and
had a loaded handgun. The police knocked, they yelled, They
waited forty minutes, and then they went in. The question
(01:55):
before the Supreme Court is what's the standard for police
entering a home in an emergency? Justice is from across
the ideological spectrum suggested that the officers were right to
go in in this case. Here are Justices Samuel Alito
and Katanji Brown Jackson.
Speaker 5 (02:13):
What more would they need here? If they need to
be able to look through the window and see him
with a gun and point it to his head, or
they need to see a dead body on the floor,
what more.
Speaker 1 (02:22):
Did they need?
Speaker 6 (02:23):
This person had a long history of threatening suicide, whether
it be by cop or whether it be on his
own or whatever. We have a long conversation detailed specific
with the girlfriend about circumstances that look like they're creating
a pretty significant emergency.
Speaker 2 (02:43):
And Justice Brett Kavanaugh questioned Case's attorney about the alternative scenario.
Speaker 7 (02:49):
Well, if they, after deliberations, walk away and he commits suicide,
I mean, what are you thinking, Then it's the officers.
Speaker 1 (02:56):
That would be unfortunate and tragic. But we are trying
to strike up balance between it.
Speaker 7 (03:01):
And the officers need some clarity, I would think in
circumstances like this about what they can do and what
they can't do.
Speaker 2 (03:09):
But there was no such clarity by the end of
the arguments. Joining me is former federal prosecutor Robert Mintz,
a partner maccarter in English, Bob, So, police normally need
a warrant to enter home, but there are some emergency
situations that are exceptions. Tell us about that.
Speaker 3 (03:29):
So there is a so called Emergency Aid exception to
the Fourth Amendment, which allows police officers to conduct a
warrantless search if they have reasonable suspicion that there is
an emergency and an immediate need to protect others or
themselves from harm.
Speaker 2 (03:45):
And tell us about the facts here. Because Case ended
up being convicted of assaulting a police officer.
Speaker 3 (03:53):
The defendant in this case, William Trevor Case, was an
army veteran who had a girlfriend who contacted police suggesting
that mister Case might be suicidal. Officers arrived at mister
Casey's house around nine pm, and they were familiar with
his history of alcohol abuse and certain mental health issues.
The ex girlfriend had told police that mister Case had
(04:15):
a loaded gun, He had threatened to harm police if
she tried to send officers to his home, and she
claimed before she hung up with the police that she
had heard a pop and then silence and was concerned
that mister Case had actually pulled the trigger. The officers
arrived at mister Case's door, they yelled, they shine flashlights
through the windows. They could see empty beer cans, an
(04:36):
empty handgun holster, and a notepad with handwriting, which the
officers believed at the time was a possible suicide note.
After about forty minutes, they entered through the unlocked front door,
and when they went upstairs, they saw a closet curtain open.
Mister Case lunged forward, his armed outstretched with what officers
believed was a handgun. The officer fired one shot, striking
(04:59):
mister Case. In the act abdomen. It turned out the
handgun was found in a nearby laundry basket. The issue
with trial, then, was when the defense tried to exclude
the gun and other evidence of the confrontation from the trial.
The trial judge overruled that defense and allowed the prosecution
to present it to the jury, and he was convicted
after a trial.
Speaker 2 (05:19):
It seemed like the police had a lot of reasons
to go in. How much more did the defense think
they should have before they entered the house.
Speaker 3 (05:27):
To put this in context, the Fourth Amendment of the
Constitution prohibits unreasonable searches and provides protections for a person's
home by generally prohibiting law enforcement from entering without a
warrant that is really set up in order to allow
people to have privacy in their home in the context
of a possible criminal case. The question that was facing
(05:48):
justices in this case is what level of certainty must
police have that an emergency is underway before entering a
home without a warrant. Mister Case's lawyers argued that it
should be a high bar. They argue that it should
be something called probable cause, which is what police officers
need in order to get a warrant to search your
(06:09):
home in the case of a criminal investigation. But here
this was not a criminal investigation. This was a circumstance
in which they believed that there was an emergency and
there was someone's life at risk inside the house. So
the question is what is the level of certainty that
police officers need to have in order to enter the
home without a warrant? And the defense argued that that
(06:30):
level of certainty in order to avoid needless and dangerous
confrontations and to prevent police officers from circumventing the concept
of probable cause, that there has to be probable cause
that they believe that there is an emergency and that
somebody is in imminent danger.
Speaker 2 (06:44):
The state of Montana and the Trump administration argued that
probable cause was too high a standard in these emergency cases.
Montana's solicitor general said that a stricter rule of probable
cause would quote require hire police to stand outside a
dying man's door. So what standard did they argue for.
Speaker 3 (07:06):
The government argued that the justices should rely on a
Supreme Court case from two thousand and six was a
unanimous opinion in a case called Brigham City versus Stuart,
in which the Supreme Court held that police may enter
a building without a warrant when they have an objectively
reasonable basis to believe that an occupant is seriously injured
(07:27):
or threatened with such injury. So in that case, they
took it completely out of the context of probable cause,
which really has an entire body of case law that
talks about when police may enter a home with or
without a warrant in the context of a criminal investigation,
and said that here we're talking about imminent risk to somebody.
It's not a criminal investigation. It's really a circumstance where
(07:50):
police officers may come into a home in order to
arguably save the life of somebody or save the life
of somebody who may be with somebody who's in danger
of hurting them. And in that case the standard is
objectively reasonable basis to believe that the occupant is seriously
injured or threatened with such injury.
Speaker 2 (08:08):
It seemed like justice is across the ideological spectrum, thought
that the police had good reason to enter here.
Speaker 3 (08:16):
Yeah, Well, what's interesting here is that the Montana Supreme Court,
which is the court that had just heard the case
before going to the US Supreme Court sided with the state,
but it was a four to three decision, and there
were actually three judges on the Montana Supreme Court who
dissented and said that for a warrantless search to be reasonable,
the higher bar or probable cause, must apply, And then
(08:38):
they went further and added that there was no probable
cause to believe mister Case was an imminent danger or
in need of immediate assistants that would have justified the
warrantless entry into the home. When the case went to
the Supreme Court and was argued before the justice is there,
there was virtual unanimity that the standard that had been
(08:58):
applied by the state was the cour First. For example,
Justice Thomas noted that the issue or probable cause is
a standard that is normally limited to the criminal context.
This was not a criminal investigation, and Justice Robert joined
in on that to say, when we talk about probable cause,
we talk about probable cause that a crime is occurring.
(09:19):
What standard would be used here when we're not talking
about a crime, but about a risk of injury to somebody?
And Justice Kagan also jumped in, saying that there is
a full body of case law out there describing what
probable cause is. It's not a self defining term. It
has been raised in many cases, and there is a
(09:40):
full explanation in the criminal context of what constitutes probable cause,
but this is something entirely different. And the justices all
seemed to go back to the Brigham City versus Stewart
case from two thousand and six to say that the
standard of objectively reasonable basis for believing that somebody needs
emergency help. Is this standard that should apply here, and
(10:03):
Justice Alito and Justice Brown agreed, which doesn't happen very often.
They both push back on the contention here of the
defense lawyer that this was an unreasonable act by police.
Justice Alito went so far as to say, if the
police couldnot enter the house based on the facts that
they knew in this case, then I don't know when
(10:24):
police are ever able to go into a house to
prevent something from committing suicide. The concern here is that
if there is a legal standard of probable cause in
order to go in under these emergency situations, that police
officers may hesitate to go into a house when somebody's
life is at risk, And they seem to weigh more
(10:44):
in favor of protecting the life of an individual and
allowing police officers more latitude to go in under these
circumstances than they were about the privacy concerns of entering
a house without a warrant.
Speaker 2 (10:58):
So do you think that the justice is will just
announce a standard and that will be the end of
the case.
Speaker 3 (11:04):
If the Supreme Court decides to uphold the lower court,
then there was some discussion about what comes next.
Speaker 1 (11:11):
In other words, there were.
Speaker 3 (11:12):
Some justices who said that they should simply rule that
the lower court was correct and that the standard of
objectively reasonable was properly applied, and that in this case,
clearly the facts warranted the police entering the home. Justice
Soto Manor and Justice Thomas, on the other hand, argued
that it's the normal practice of the court if they're
(11:34):
not certain about a standard and state a new standard,
then it should be sent back to the Montana Supreme
Court to determine whether, based on these facts, that objectively
reasonable standard had in fact been satisfied. Justice Alito expressed
some concern that in doing that it might suggest to
the lower court that this was in some way a
close call, and could, he argued, have some kind of
(11:56):
a killing effect on police when they're trying to determine
whether to enter a house to prevent somebody from committing suicide.
Speaker 2 (12:03):
And the Supreme Court is usually protective of the expectation
of privacy in one's own home. And we should point
out here that some civil rights and privacy groups did
line up behind the defendant in this case.
Speaker 3 (12:18):
Mister Case's attorney reminded the justices that police had entered
mister Case's home without permission, without a warrant, or without
even probable cause, and ended up shooting him in his
own home. He argued that the reasonablenst standard that the
state was suggesting was so vague as to invite abuse
and confusion by law enforcement.
Speaker 2 (12:39):
This is one case this term where it appears you
never know, but it appears that we know how it's
going to turn out. But we shall see. Thanks for
joining me, Bob. That's former federal prosecutor Robert Mintz of
Macarter and English. Coming up next, the Supreme Court appears
likely to invalidate Colorado's ban on con perversion therapy for miners.
(13:02):
I'm June Grosso and you're listening to Bloomberg.
Speaker 1 (13:08):
This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2 (13:13):
You're listening to a special holiday edition of the Bloomberg
Law Show. We're looking at several cases before the Supreme Court.
Colorado Solicitor General Shannon Stevenson defended the state's ban on
conversion therapy for miners at the Supreme Court. She argued
that the Constitution allows states to protect patients from harmful,
(13:35):
discredited treatments even if a regulation incidentally affects speech.
Speaker 8 (13:41):
A healthcare provider cannot be free to violate the standard
of care just because they are using words, and a
state cannot be required to let its vulnerable young people
waste their time and money on an ineffective, harmful treatment
just because that treatment is delivered through words.
Speaker 2 (13:57):
An evangelical Christian therapist is challenging the law, saying it
violates her free speech rights, and the court's conservative justices
appeared to agree with her, questioning the constitutionality of the law.
Here are Chief Justice John Roberts and Justice Samuel Alito.
Speaker 9 (14:15):
In other words, just because they're engaged in conduct doesn't
mean that their words aren't protected.
Speaker 5 (14:23):
Looks like blatant viewpoint discrimination.
Speaker 2 (14:25):
Liberal Justices Sonya Sotomayor and Katanji Brown Jackson were the
only justices who addressed the harms of conversion therapy that
every major medical association warns about.
Speaker 10 (14:38):
There are studies that say that this advice does harm
the people emotionally and physically.
Speaker 2 (14:47):
And Justice Jackson questioned why the Colorado law should be
struck down when in June the court upheld a different
measure from Tennessee that bans transition related treatments for transgender
care kids.
Speaker 11 (15:00):
The regulations work in basically the same way, and the
question of scrutiny applies in both contexts, so it just
seems odd to me that we might have a different
result here.
Speaker 2 (15:11):
My guest is First Amendment expert Caroline Mala Corbin, a
professor at the University of Miami Law School. Caroline, will
you explain conversion therapy and Colorado's law banning it.
Speaker 12 (15:23):
As about half the states in the country have done.
Colorado bans something that has been called gay conversion therapy,
and it's the idea of trying to convince someone who
is gay that they're not actually gay, or trying to
convince someone who is trans that they're not actually trans.
(15:44):
And this approach to gay and trans people has been
proven to be very delictorious for their mental well being,
and so states have forbidden it. They have made it
illegal for license medical professionals to provide this as part
(16:04):
of their practice of medicine. So to be very clear,
it doesn't ban clergy from talking to people about sexual
orientation or gender identity, and it doesn't even ban the
therapists from talking about it in their own free time.
But if they are in the process of providing health
care services that they have been licensed to provide, they're
(16:29):
not allowed to try and convince gay people that they're
not gay, or trans people that they're not trans. That's
the law, and.
Speaker 2 (16:37):
What's the fundamental issue in the case.
Speaker 12 (16:40):
So you have this law. It says, if you're licensed
by the state, the state does not allow you to
do things that are contrary to the standard of care,
and so you cannot provide conversion therapy. And we have
this white Christian woman who argues that the ban forbids
her from providing the type of therapy that she wants
(17:03):
to practice. She gets help from Alliance to Friending Freedom.
And so the question before the court is does this
ban on this medical therapy violate the licensed practitioners free
speech rights. And so the question before the court is
does this ban on this medical therapy violate the licensed
(17:27):
practitioners free speech rights? And the legal question that makes
all the difference is whether providing conversion therapy is speech
or whether it's conduct. Because if it's speech, then it
implicates the free speech clause. In fact, it becomes presumptively unconstitutional. If,
(17:50):
on the other hand, it's considered conduct, then it doesn't
trigger the free speech clause and the government is likely
to be allowed to regulate it. So the million dollar
constitutional question is how should this practice of conversion therapy
get characterize? Is it speech or is it conduct? Now,
(18:13):
I just want to point out that the speech in
the colloquial sense doesn't always match speech in the constitutional sense.
So let me give you a couple of examples when
speech is not actually speech, which seems counterintuitive. And yet
if for example, you told national security secrets to a
(18:36):
foreign enemy, that's speech, but that it wouldn't be treated
as speech. It would be treated as the conduct of treason.
It's not protected by the free speech cause. Or for example,
a sign on a restaurant that said we do not
hire fill in the blank, we do not hire black
people or Latino people or Asian people. That's words, but
(18:58):
that would be considered speech. It would be considered the
act of discrimination. And so while it may seem really
obvious on its face, well this is words and therefore
it's speech, it's not quite as clear cut as the
Supreme Court is going to probably conclude.
Speaker 2 (19:18):
It seems like there is almost universal agreement among those
who listen to the oral arguments that the Christian counselor
is going to win here.
Speaker 12 (19:28):
I mean, clearly, whenever you have a white conservative Christian
arguing before the Supreme Court, they're going to win, especially
if the only thing that's stake, and I say only
from the court's perspective is LGBTQ rights. They just don't care, right, So,
I think it was a foregone conclusion, apart from any
(19:50):
of the legal principles, that the white Christian woman was
going to win. You know, I never used to predict
the outcome of Supreme Court cases, but it seems the
pattern is so clear these days that I think one
could say with a certain degree of confidence that she's
going to win. And they're basically going to say this
is speech, and therefore it is presumptively unconstitutional, and only
(20:15):
if the government has a super compelling justification for its law,
and the law was the only way to accomplish its goals,
it's not going to win. In other words, it's going
to have to pass what is known as strict scrutiny,
and that is very hard to do.
Speaker 2 (20:30):
In the speech context, it seemed like most of the
discussion was about what standard should be applied here.
Speaker 12 (20:37):
Well, that's because if it is considered speech, then the
standard is going to be strict scrutiny, and if it
is not speech, then it's only going to be rational
basis scrutiny. So what level of scrutiny a court must
give to this law, how hard it looks at it,
questions it, The level of evidence the government needs to
(21:02):
provide will depend on whether it is speech or conduct,
because again, if it is speech, then it implicates the
free speech clause.
Speaker 2 (21:12):
Is this a novel issue coming to the court? Have
they decided any similar cases?
Speaker 12 (21:18):
The Supreme Court is not deciding this against a blank slate.
They have already considered the question of medical treatment and
speech conduct. But in the abortion context. So I want
to highlight that many states who are hostile to abortion.
One of the things that they require their abortion providers
(21:39):
to do is to give women certain information about abortion. So,
for example, you have to let women know that adoption
is an option, or that fathers have to pay child support.
Other states have held that women have to be told
all the harms that may result from abortion, some of
which are not even medically accurate. But the point I
(22:02):
want to make here is that doctors challenge this regulation
on speech grounds and argued, the government is forcing us
to say things that are contrary to what we believe
is appropriate and correct. And you might think, well, these
are words, and they're being forced to articulate a particular
(22:23):
viewpoint on things, for example, don't have an abortion, you know,
adopt your child out instead. That it too, should be
considered a regulation of speech that sort of compels a viewpoint.
It's a viewpoint based restriction and therefore should trigger strict
scrutiny and be presumptively unconstitutional. But that is not what
(22:44):
the Supreme Court did. What the Supreme Court said is
that these laws that compel doctors to speak against their
will and say things that they don't want to say.
The Supreme Court helped that is not a regulation of speech,
that is actually a regulation of the medical profession that
only incidentally affects speech. So they're designing this case against
(23:11):
a backdrop of the Supreme Court already having held in
a different context that speech that is connected to the
provision of medical treatment is not necessarily going to be
treated like speech. And so you know, oh, it just
so happens, right that if you're challenging something that's anti abortion,
(23:33):
it's not speech, but if you're challenging something that's pro LGBT,
it is speech.
Speaker 2 (23:40):
The Supreme Court has been steadily rolling back protections for
gay and transgender people in recent terms. The last time
I can think of that LGBTQ writs one at the
Supreme Court was the boss Stock case in twenty twenty.
Is that the last time.
Speaker 12 (23:58):
I think so, and I think they have really undermined
their own credibility by so aggressively promoting a particular ideology,
and to do so at the expense of a marginalized
community is not to their honor. And let's be clear,
(24:20):
they get to pick and choose their cases. There was
nothing that require them to decide this case. I think,
in addition to its long standing attack on the LGB community.
I think we also are seeing here a real disparagement
(24:41):
of expertise, which we also saw in Scremtti, because to
be clear, there is a consensus in the medical community
that this therapy is really harmful, and yet they did
not seem to accept that. Instead, they kept pushing back
against this idea that the experts knew what they were
(25:04):
talking about, and certainly Alliance Defending Freedom is helping them
by producing all kinds of questionable claims about the reliability
of the science underlying the medical consensus. And to be sure,
the medical community has made errors in the past, but
(25:24):
if we have to rely on something, you know, better
to rely on medical experts and the weight of the
medical community than a right wing political group.
Speaker 2 (25:38):
And the decision here will implicate similar bands on conversion
therapy in twenty six other states. Thanks so much, Caroline.
That's Professor Caroline Malacorbin of the University of Miami Law School.
Coming up next, When can a criminal defense attorney be
barred from talking to his client about his testimony? I'm
(25:58):
June Grosso and you're listening to Bloomberg.
Speaker 1 (26:03):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (26:08):
Thanks for listening to a special holiday edition of Bloomberg
Law as we focus on cases before the Supreme Court.
It's the most difficult decision a criminal defendant has to
make a trial, whether or not to take the stand.
And when a defendant decides to take the risk of testifying,
what role does his attorney play. David Villarreal took the
(26:31):
stand during his trial in twenty eighteen for murdering his boyfriend,
but when there was an overnight break in his testimony,
the judge barred villar Rial's attorney from discussing his testimony
with him. He was convicted, and in his appeal to
the Supreme Court, Villarial argues that the judge's order denied
(26:52):
him effective assistance of counsel in violation of the sixth Amendment.
During the oral arguments, the justice's question just what a
trial lawyer could talk to his client about during an
overnight break in his testimony without crossing over into coaching
the client's testimony. Chief Justice John Roberts posed a hypothetical
(27:13):
to the lawyer for Texas about a defendant asking his
attorney whether he should stop testifying about fred when he
got back on the stand.
Speaker 9 (27:22):
And I notice every time I do that, you know,
Juring number eight gets a big frown and shakes his head.
He doesn't look to me like he likes the idea
of talking about Fred at all. So I think that's
a bad idea. Now, talking about Fred was your idea?
Speaker 1 (27:37):
Do you still think it's.
Speaker 7 (27:38):
A good idea?
Speaker 9 (27:39):
Can the lawyer respond to that question?
Speaker 7 (27:43):
No, they you would have to tell them I'm mom
to a core order not to out to answer.
Speaker 9 (27:47):
So at that point he tells the defendant who's facing
a capital sentence, I'm not going.
Speaker 4 (27:51):
To tell you.
Speaker 2 (27:51):
And Justice Elaina Kagan wanted to know about a lawyer
giving his client some tips on his performance on the stand.
Speaker 13 (27:59):
Do you think that counsel can say, listen, I've been
noticing that you've been mumbling, and you're also not making
eye contact with the questioner, and it would just be
a good idea if you'd stopped mumbling and made eye contact.
Can the lawyer do that in an overnight recess?
Speaker 2 (28:19):
The appeals courts are split on whether so called non
conferral orders during overnight trial recesses are constitutional. Joining Me
is former Manhattan prosecutor and criminal defense attorney. Paul Callan
of counsel at Edelman and Edelman. Paul tell us about
the facts here.
Speaker 4 (28:38):
The defendant, David Villarreal, was a meth addict allegedly who
stabbed his boyfriend to death, and he goes to trial,
and something happened in that trial, and it's something that's
very common in the trial of civil and criminal cases,
and that is he was on the witness stand testifying
and the judge decided to break for the day. It
(29:00):
was about one o'clock in the afternoon, and the judge
gave an instruction which suggested that the defense attorney should
not discuss testimony overnight with his clients because he was
on the witness stand. And later on he's convicted, sentenced
to sixty years in prison, and now he's seeking to
reverse the case, saying that instruction impeded his right to
(29:23):
consult with counsel, pursuing to the sixth Amendment.
Speaker 2 (29:27):
So there was a lot of talk during the oral
arguments about coaching your client. Is there a clear line
between what's permissible and what's impermissible when coaching a client
or preparing a client to testify.
Speaker 4 (29:42):
Well, there's a line across and we call it subornation
of perjury if a lawyer goes too far in giving
advice to his client about how he should shape his testimony.
And so lawyers always have to deal with this situation
that they can't give advice that would constantly subornation of perjury.
Lawyers do, and it's their job to give a client
(30:04):
advice though, about how to testify and a witness stand,
how to conduct themself on the witness stand, how to
reactive as an objection made in court, all kinds of
technical aspects of testimony like that. Clearly lawyers are allowed
to give that kind of advice. But this is a
situation that comes up all the time in both civil
and criminal cases. When there's a recess in the case,
(30:25):
the client wants to talk to the lawyer how am
I doing? Am I doing okay on the witness stand?
And the lawyer wants to encourage them and say, yes, yes,
you're doing great, you know, or no, that was a
stupid answer you gave, you know, try to listen to
the questions that are being asked. So there are a
variety of ways that lawyers approach this thing. So the
courts really have gone back and forth on it. There
(30:48):
are some court decisions saying that during the course of testimony,
if there's a brief recess fifteen twenty minute recess, you
can talk to your client, but you shouldn't discuss testimony
during that time period. When there's a long adjournment like overnight,
then it gets really tricky because really most lawyers think
they shouldn't be discussing testimony with the client, but there
(31:10):
may be other things that have to be discussed. Should
I recommend a plead because the testimony is going so badly?
Should I tell the witness that if he's going to
stick with this kind of a story, we need another witness.
You know, maybe he's got a friend who was refusing
to testify, but now you say, you know, he's got
to come in and testify given the way your testimony
is going. So there's sort of an interreaction between testimony
(31:32):
and even testimony that you're not trying to shape, and
how it affects other aspects of the case as the
case proceeds. So this is a really tricky question for lawyers,
and this will be a closely watched case.
Speaker 2 (31:45):
Some of the justices seem to be leaning toward a
type of limited instruction where the lawyer is prohibited from
directly discussing the testimony with the client during an overnight break,
but is allowed to discuss broader trial strategies and issues
that relate to testimony. And Villa Reale's attorney argued that
(32:07):
that rule is unworkable in the real world, and just
as Sonya Sotmayor gave an example of a lawyer suggesting
that a client take a plea in the middle of
his testimony, that showed why it's unworkable.
Speaker 10 (32:21):
I find it impossible for a lawyer to say I
think you should consider a plea bargain now, and that
the defendant is not going to say, but why, And
the why has to be my considered judgment that gets
me from here to the corner and back with nobody
(32:41):
paying me. Okay, you need to say something. But model
rule says a lawyer shall explain a matter to the
extent reasonably necessary to make an informed decision.
Speaker 2 (32:54):
I mean it's very hard to draw a line in
these circumstances.
Speaker 4 (33:00):
Yes, Villaryal's lawyer made a very compelling argument in that regard,
because so much of the client's testimony. I mean, if
you put a defendant on the witness stand in a
criminal case. His testimony is now the key evidence of
the entire case, and if it triggers problems, that may
cause you as a lawyer to have to go out
and get another witness or maybe bring in some kind
(33:23):
of an expert, because he's raised something about the impossibility
of how a bullet was fired or was aimed when
the murder's shot was fired, or a stab wound it
would be in this case. Yeah, the testimony interacts, from
the legal standpoint, with all of the evidence in the case.
So you restrict the lawyer's ability to talk to the client.
You can't just keep it down to the testimony alone.
(33:45):
Everything interacts with everything else. That's what build in the
way of his lawyers are arguing.
Speaker 2 (33:50):
Justice Elena Kaig and ask this of Texas's lawyer. Do
you think that counsel can say, listen, I've been noticing
that you've been mumbling, and you're also not making eye
contact with the questioner, and it would just be a
good idea if you'd stop mumbling and made eye contact.
Can the lawyer do that in an overnight recess? Texas's
(34:11):
attorney said no, I would consider that to be coaching
their testimony as far as how you present yourself to
the jury. Of course, he's defending the conviction for Texas,
so he's coming at the question from a different angle.
But do you think that would be coaching.
Speaker 4 (34:27):
Well, whether it's coaching or not, I don't know. It
probably is coaching. But that kind of coaching is exactly
what you get hired to do as a lawyer, to
school your client in how he can present his truthful
testimony in the best way possible to the jury. And
I think most lawyers view this situation where a client
(34:48):
is on the witness stand that they will not often
hamper with the content of the testimony in their discussions
with the client, but they may say, listen, stop looking down.
It's making you look guilty. Look at a guy who's
asking you the question. And it's okay to glance over
at the jurors from time to time with your head up.
And I mean, this just has to do with presentation
(35:11):
of the testimony to the jury as opposed to the
truth or falsity of the testimony. And I think that's
perfectly proper that kind of instruction to a client during testimony.
Speaker 2 (35:21):
Of course, you can never tell for sure from oral
arguments how the justices will rule. But it seemed to
me that the defendant didn't have five votes, that the
majority of the justices were skeptical that not being able
to talk to his counsel about his testimony during the
overnight break violated his constitutional rights.
Speaker 4 (35:44):
Well, I'll tell you. And my suspicion is maybe they
just want to stay away from the whole thing, because
I suspect that the truth of the matter is there's
nobody in that room at night when the lawyer is
discussing the testimony with the client, and rule is a
really hard rule to enforce. I suppose you might have
a lot more appeals in cases from defendants who would
(36:07):
say I was on the stand and I needed advice
and the lawyer refused to talk to me, and that's
why I've been convicted, you know what Philip Reality is saying.
So it's a touchy subject and it'll be interesting to
see how the court rules on this thing. Trial lawyers
across the country will be watching very very carefully because
there are lots of discuse. It happens to the civil
(36:29):
cases too, during depositions. You know, you have a civil
case and the guys being deposed, and then they wanted
to take a break, and the lawyer says, well, don't
talk to him during the break. And the lawyer says, well,
you have no right to restrict what I can say
to my client during the break. And I've seen fights
among lawyers, oral arguments among lawyers at depositions about this
very subject. So this one will spill over into civil
(36:51):
practice as well. I think if they make a definitive
ruling on the issue, is.
Speaker 2 (36:56):
There an ethical rule that you shouldn't talk to your
client during a break into testimony.
Speaker 4 (37:01):
There are no ethical rules about it, other than, of course,
a lawyer cannot suborn perjury. So if you're giving the
client advice, you know he's was serving, say self defense
in a case, and he tells you a story in
which he's not under threat from the person he killed
at all, and you say to him, well, you know
(37:21):
it would help if you thought he was trying to
strangle you when you pulled out the knife and started
stabbing him, Well, that would be unethical. You're subborting perjury.
You're telling him tell a lie to say that you
were in fear of your life, that's why you killed him.
So you know, those are the only ethical rules that
apply in terms of shaping testimony. By saying be more polite,
(37:42):
you know, you're yelling at the prosecutor. Don't do that.
It makes you look aggressive and bad. I'm telling you
about stylistic questions and advice from the attorney. You know,
I think that's something that all lawyers do to a
certain extent with clients, and it's probably okay, and matter
of fact, the courts may like it, because if you
get a long winded client and won't give you a
straight answer to a question, a lot of times the
(38:03):
judges are quite asked as the client listens carefully to
the question and answers it succinctly, as opposed to wandering
around and telling all of these lengthy stories, which, by
the way, just open up new avenues across examination for
the prosecutor. You know, clients testifying is one of the
most complex issues of criminal law and always will be.
Speaker 2 (38:23):
And only Justice Katanji Brown Jackson was a criminal defense
lawyer who might have faced some of these problems with
a client testifying. She was an assistant public defender in
DC Justice Sonya so Tomayor is the only other trial
lawyer on the court, and she was a Manhattan District
attorney like you, Paul, thanks so much for joining me today.
(38:45):
That's Paul Callen, former Manhattan prosecutor and criminal defense attorney.
And that's it for this edition of the Bloomberg Law Show.
I'm June Grosso.
Bloomberg Audio Studios, podcasts, radio news. This is Bloomberg Law.
Speaker 2 (00:09):
Employers frequently exploit the weaknesses in the law.
Speaker 3 (00:12):
Of course, are going to be asking questions about separation
of powers.
Speaker 1 (00:15):
One by one, Google settled with all of these other plaintiffs.
Interviews with prominent attorneys and Bloomberg Legal experts.
Speaker 2 (00:22):
Joining me is immigration law expertly on Fresco, First Amendment
law expert Caroline Malick.
Speaker 1 (00:27):
Corbin, and analysis of important legal issues, cases and headlines that.
Speaker 3 (00:31):
Trial judge may well want to hold a hearing.
Speaker 4 (00:34):
They have never said this case.
Speaker 3 (00:36):
Should never have been brought in the first place.
Speaker 1 (00:38):
Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2 (00:45):
Welcome to a special holiday edition of the Bloomberg Law Show.
I'm June Grosso. Ahead. In this hour, we'll focus on
cases before the Supreme Court. The justices will decide when
it's okay for police to enter a home during an emergency,
whether a judge can bar a criminal defense attorney from
(01:05):
talking to their own clients during their testimony, and whether
to invalidate Colorado's ban on conversion therapy for miners.
Speaker 5 (01:16):
If the police could not enter this house based on
the facts that they knew then. I don't know when
the police are ever going to be able to enter
a house to prevent somebody from committing suicide.
Speaker 2 (01:33):
Police didn't have a warrant when they entered the home
of an army veteran in Montana. But they weren't there
to arrest William Trevor Case. They were there to help him.
His ex girlfriend said that Case had threatened suicide and
had a loaded handgun. The police knocked, they yelled, They
waited forty minutes, and then they went in. The question
(01:55):
before the Supreme Court is what's the standard for police
entering a home in an emergency? Justice is from across
the ideological spectrum suggested that the officers were right to
go in in this case. Here are Justices Samuel Alito
and Katanji Brown Jackson.
Speaker 5 (02:13):
What more would they need here? If they need to
be able to look through the window and see him
with a gun and point it to his head, or
they need to see a dead body on the floor,
what more.
Speaker 1 (02:22):
Did they need?
Speaker 6 (02:23):
This person had a long history of threatening suicide, whether
it be by cop or whether it be on his
own or whatever. We have a long conversation detailed specific
with the girlfriend about circumstances that look like they're creating
a pretty significant emergency.
Speaker 2 (02:43):
And Justice Brett Kavanaugh questioned Case's attorney about the alternative scenario.
Speaker 7 (02:49):
Well, if they, after deliberations, walk away and he commits suicide,
I mean, what are you thinking, Then it's the officers.
Speaker 1 (02:56):
That would be unfortunate and tragic. But we are trying
to strike up balance between it.
Speaker 7 (03:01):
And the officers need some clarity, I would think in
circumstances like this about what they can do and what
they can't do.
Speaker 2 (03:09):
But there was no such clarity by the end of
the arguments. Joining me is former federal prosecutor Robert Mintz,
a partner maccarter in English, Bob, So, police normally need
a warrant to enter home, but there are some emergency
situations that are exceptions. Tell us about that.
Speaker 3 (03:29):
So there is a so called Emergency Aid exception to
the Fourth Amendment, which allows police officers to conduct a
warrantless search if they have reasonable suspicion that there is
an emergency and an immediate need to protect others or
themselves from harm.
Speaker 2 (03:45):
And tell us about the facts here. Because Case ended
up being convicted of assaulting a police officer.
Speaker 3 (03:53):
The defendant in this case, William Trevor Case, was an
army veteran who had a girlfriend who contacted police suggesting
that mister Case might be suicidal. Officers arrived at mister
Casey's house around nine pm, and they were familiar with
his history of alcohol abuse and certain mental health issues.
The ex girlfriend had told police that mister Case had
(04:15):
a loaded gun, He had threatened to harm police if
she tried to send officers to his home, and she
claimed before she hung up with the police that she
had heard a pop and then silence and was concerned
that mister Case had actually pulled the trigger. The officers
arrived at mister Case's door, they yelled, they shine flashlights
through the windows. They could see empty beer cans, an
(04:36):
empty handgun holster, and a notepad with handwriting, which the
officers believed at the time was a possible suicide note.
After about forty minutes, they entered through the unlocked front door,
and when they went upstairs, they saw a closet curtain open.
Mister Case lunged forward, his armed outstretched with what officers
believed was a handgun. The officer fired one shot, striking
(04:59):
mister Case. In the act abdomen. It turned out the
handgun was found in a nearby laundry basket. The issue
with trial, then, was when the defense tried to exclude
the gun and other evidence of the confrontation from the trial.
The trial judge overruled that defense and allowed the prosecution
to present it to the jury, and he was convicted
after a trial.
Speaker 2 (05:19):
It seemed like the police had a lot of reasons
to go in. How much more did the defense think
they should have before they entered the house.
Speaker 3 (05:27):
To put this in context, the Fourth Amendment of the
Constitution prohibits unreasonable searches and provides protections for a person's
home by generally prohibiting law enforcement from entering without a
warrant that is really set up in order to allow
people to have privacy in their home in the context
of a possible criminal case. The question that was facing
(05:48):
justices in this case is what level of certainty must
police have that an emergency is underway before entering a
home without a warrant. Mister Case's lawyers argued that it
should be a high bar. They argue that it should
be something called probable cause, which is what police officers
need in order to get a warrant to search your
(06:09):
home in the case of a criminal investigation. But here
this was not a criminal investigation. This was a circumstance
in which they believed that there was an emergency and
there was someone's life at risk inside the house. So
the question is what is the level of certainty that
police officers need to have in order to enter the
home without a warrant? And the defense argued that that
(06:30):
level of certainty in order to avoid needless and dangerous
confrontations and to prevent police officers from circumventing the concept
of probable cause, that there has to be probable cause
that they believe that there is an emergency and that
somebody is in imminent danger.
Speaker 2 (06:44):
The state of Montana and the Trump administration argued that
probable cause was too high a standard in these emergency cases.
Montana's solicitor general said that a stricter rule of probable
cause would quote require hire police to stand outside a
dying man's door. So what standard did they argue for.
Speaker 3 (07:06):
The government argued that the justices should rely on a
Supreme Court case from two thousand and six was a
unanimous opinion in a case called Brigham City versus Stuart,
in which the Supreme Court held that police may enter
a building without a warrant when they have an objectively
reasonable basis to believe that an occupant is seriously injured
(07:27):
or threatened with such injury. So in that case, they
took it completely out of the context of probable cause,
which really has an entire body of case law that
talks about when police may enter a home with or
without a warrant in the context of a criminal investigation,
and said that here we're talking about imminent risk to somebody.
It's not a criminal investigation. It's really a circumstance where
(07:50):
police officers may come into a home in order to
arguably save the life of somebody or save the life
of somebody who may be with somebody who's in danger
of hurting them. And in that case the standard is
objectively reasonable basis to believe that the occupant is seriously
injured or threatened with such injury.
Speaker 2 (08:08):
It seemed like justice is across the ideological spectrum, thought
that the police had good reason to enter here.
Speaker 3 (08:16):
Yeah, Well, what's interesting here is that the Montana Supreme Court,
which is the court that had just heard the case
before going to the US Supreme Court sided with the state,
but it was a four to three decision, and there
were actually three judges on the Montana Supreme Court who
dissented and said that for a warrantless search to be reasonable,
the higher bar or probable cause, must apply, And then
(08:38):
they went further and added that there was no probable
cause to believe mister Case was an imminent danger or
in need of immediate assistants that would have justified the
warrantless entry into the home. When the case went to
the Supreme Court and was argued before the justice is there,
there was virtual unanimity that the standard that had been
(08:58):
applied by the state was the cour First. For example,
Justice Thomas noted that the issue or probable cause is
a standard that is normally limited to the criminal context.
This was not a criminal investigation, and Justice Robert joined
in on that to say, when we talk about probable cause,
we talk about probable cause that a crime is occurring.
(09:19):
What standard would be used here when we're not talking
about a crime, but about a risk of injury to somebody?
And Justice Kagan also jumped in, saying that there is
a full body of case law out there describing what
probable cause is. It's not a self defining term. It
has been raised in many cases, and there is a
(09:40):
full explanation in the criminal context of what constitutes probable cause,
but this is something entirely different. And the justices all
seemed to go back to the Brigham City versus Stewart
case from two thousand and six to say that the
standard of objectively reasonable basis for believing that somebody needs
emergency help. Is this standard that should apply here, and
(10:03):
Justice Alito and Justice Brown agreed, which doesn't happen very often.
They both push back on the contention here of the
defense lawyer that this was an unreasonable act by police.
Justice Alito went so far as to say, if the
police couldnot enter the house based on the facts that
they knew in this case, then I don't know when
(10:24):
police are ever able to go into a house to
prevent something from committing suicide. The concern here is that
if there is a legal standard of probable cause in
order to go in under these emergency situations, that police
officers may hesitate to go into a house when somebody's
life is at risk, And they seem to weigh more
(10:44):
in favor of protecting the life of an individual and
allowing police officers more latitude to go in under these
circumstances than they were about the privacy concerns of entering
a house without a warrant.
Speaker 2 (10:58):
So do you think that the justice is will just
announce a standard and that will be the end of
the case.
Speaker 3 (11:04):
If the Supreme Court decides to uphold the lower court,
then there was some discussion about what comes next.
Speaker 1 (11:11):
In other words, there were.
Speaker 3 (11:12):
Some justices who said that they should simply rule that
the lower court was correct and that the standard of
objectively reasonable was properly applied, and that in this case,
clearly the facts warranted the police entering the home. Justice
Soto Manor and Justice Thomas, on the other hand, argued
that it's the normal practice of the court if they're
(11:34):
not certain about a standard and state a new standard,
then it should be sent back to the Montana Supreme
Court to determine whether, based on these facts, that objectively
reasonable standard had in fact been satisfied. Justice Alito expressed
some concern that in doing that it might suggest to
the lower court that this was in some way a
close call, and could, he argued, have some kind of
(11:56):
a killing effect on police when they're trying to determine
whether to enter a house to prevent somebody from committing suicide.
Speaker 2 (12:03):
And the Supreme Court is usually protective of the expectation
of privacy in one's own home. And we should point
out here that some civil rights and privacy groups did
line up behind the defendant in this case.
Speaker 3 (12:18):
Mister Case's attorney reminded the justices that police had entered
mister Case's home without permission, without a warrant, or without
even probable cause, and ended up shooting him in his
own home. He argued that the reasonablenst standard that the
state was suggesting was so vague as to invite abuse
and confusion by law enforcement.
Speaker 2 (12:39):
This is one case this term where it appears you
never know, but it appears that we know how it's
going to turn out. But we shall see. Thanks for
joining me, Bob. That's former federal prosecutor Robert Mintz of
Macarter and English. Coming up next, the Supreme Court appears
likely to invalidate Colorado's ban on con perversion therapy for miners.
(13:02):
I'm June Grosso and you're listening to Bloomberg.
Speaker 1 (13:08):
This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2 (13:13):
You're listening to a special holiday edition of the Bloomberg
Law Show. We're looking at several cases before the Supreme Court.
Colorado Solicitor General Shannon Stevenson defended the state's ban on
conversion therapy for miners at the Supreme Court. She argued
that the Constitution allows states to protect patients from harmful,
(13:35):
discredited treatments even if a regulation incidentally affects speech.
Speaker 8 (13:41):
A healthcare provider cannot be free to violate the standard
of care just because they are using words, and a
state cannot be required to let its vulnerable young people
waste their time and money on an ineffective, harmful treatment
just because that treatment is delivered through words.
Speaker 2 (13:57):
An evangelical Christian therapist is challenging the law, saying it
violates her free speech rights, and the court's conservative justices
appeared to agree with her, questioning the constitutionality of the law.
Here are Chief Justice John Roberts and Justice Samuel Alito.
Speaker 9 (14:15):
In other words, just because they're engaged in conduct doesn't
mean that their words aren't protected.
Speaker 5 (14:23):
Looks like blatant viewpoint discrimination.
Speaker 2 (14:25):
Liberal Justices Sonya Sotomayor and Katanji Brown Jackson were the
only justices who addressed the harms of conversion therapy that
every major medical association warns about.
Speaker 10 (14:38):
There are studies that say that this advice does harm
the people emotionally and physically.
Speaker 2 (14:47):
And Justice Jackson questioned why the Colorado law should be
struck down when in June the court upheld a different
measure from Tennessee that bans transition related treatments for transgender
care kids.
Speaker 11 (15:00):
The regulations work in basically the same way, and the
question of scrutiny applies in both contexts, so it just
seems odd to me that we might have a different
result here.
Speaker 2 (15:11):
My guest is First Amendment expert Caroline Mala Corbin, a
professor at the University of Miami Law School. Caroline, will
you explain conversion therapy and Colorado's law banning it.
Speaker 12 (15:23):
As about half the states in the country have done.
Colorado bans something that has been called gay conversion therapy,
and it's the idea of trying to convince someone who
is gay that they're not actually gay, or trying to
convince someone who is trans that they're not actually trans.
(15:44):
And this approach to gay and trans people has been
proven to be very delictorious for their mental well being,
and so states have forbidden it. They have made it
illegal for license medical professionals to provide this as part
(16:04):
of their practice of medicine. So to be very clear,
it doesn't ban clergy from talking to people about sexual
orientation or gender identity, and it doesn't even ban the
therapists from talking about it in their own free time.
But if they are in the process of providing health
care services that they have been licensed to provide, they're
(16:29):
not allowed to try and convince gay people that they're
not gay, or trans people that they're not trans. That's
the law, and.
Speaker 2 (16:37):
What's the fundamental issue in the case.
Speaker 12 (16:40):
So you have this law. It says, if you're licensed
by the state, the state does not allow you to
do things that are contrary to the standard of care,
and so you cannot provide conversion therapy. And we have
this white Christian woman who argues that the ban forbids
her from providing the type of therapy that she wants
(17:03):
to practice. She gets help from Alliance to Friending Freedom.
And so the question before the court is does this
ban on this medical therapy violate the licensed practitioners free
speech rights. And so the question before the court is
does this ban on this medical therapy violate the licensed
(17:27):
practitioners free speech rights? And the legal question that makes
all the difference is whether providing conversion therapy is speech
or whether it's conduct. Because if it's speech, then it
implicates the free speech clause. In fact, it becomes presumptively unconstitutional. If,
(17:50):
on the other hand, it's considered conduct, then it doesn't
trigger the free speech clause and the government is likely
to be allowed to regulate it. So the million dollar
constitutional question is how should this practice of conversion therapy
get characterize? Is it speech or is it conduct? Now,
(18:13):
I just want to point out that the speech in
the colloquial sense doesn't always match speech in the constitutional sense.
So let me give you a couple of examples when
speech is not actually speech, which seems counterintuitive. And yet
if for example, you told national security secrets to a
(18:36):
foreign enemy, that's speech, but that it wouldn't be treated
as speech. It would be treated as the conduct of treason.
It's not protected by the free speech cause. Or for example,
a sign on a restaurant that said we do not
hire fill in the blank, we do not hire black
people or Latino people or Asian people. That's words, but
(18:58):
that would be considered speech. It would be considered the
act of discrimination. And so while it may seem really
obvious on its face, well this is words and therefore
it's speech, it's not quite as clear cut as the
Supreme Court is going to probably conclude.
Speaker 2 (19:18):
It seems like there is almost universal agreement among those
who listen to the oral arguments that the Christian counselor
is going to win here.
Speaker 12 (19:28):
I mean, clearly, whenever you have a white conservative Christian
arguing before the Supreme Court, they're going to win, especially
if the only thing that's stake, and I say only
from the court's perspective is LGBTQ rights. They just don't care, right, So,
I think it was a foregone conclusion, apart from any
(19:50):
of the legal principles, that the white Christian woman was
going to win. You know, I never used to predict
the outcome of Supreme Court cases, but it seems the
pattern is so clear these days that I think one
could say with a certain degree of confidence that she's
going to win. And they're basically going to say this
is speech, and therefore it is presumptively unconstitutional, and only
(20:15):
if the government has a super compelling justification for its law,
and the law was the only way to accomplish its goals,
it's not going to win. In other words, it's going
to have to pass what is known as strict scrutiny,
and that is very hard to do.
Speaker 2 (20:30):
In the speech context, it seemed like most of the
discussion was about what standard should be applied here.
Speaker 12 (20:37):
Well, that's because if it is considered speech, then the
standard is going to be strict scrutiny, and if it
is not speech, then it's only going to be rational
basis scrutiny. So what level of scrutiny a court must
give to this law, how hard it looks at it,
questions it, The level of evidence the government needs to
(21:02):
provide will depend on whether it is speech or conduct,
because again, if it is speech, then it implicates the
free speech clause.
Speaker 2 (21:12):
Is this a novel issue coming to the court? Have
they decided any similar cases?
Speaker 12 (21:18):
The Supreme Court is not deciding this against a blank slate.
They have already considered the question of medical treatment and
speech conduct. But in the abortion context. So I want
to highlight that many states who are hostile to abortion.
One of the things that they require their abortion providers
(21:39):
to do is to give women certain information about abortion. So,
for example, you have to let women know that adoption
is an option, or that fathers have to pay child support.
Other states have held that women have to be told
all the harms that may result from abortion, some of
which are not even medically accurate. But the point I
(22:02):
want to make here is that doctors challenge this regulation
on speech grounds and argued, the government is forcing us
to say things that are contrary to what we believe
is appropriate and correct. And you might think, well, these
are words, and they're being forced to articulate a particular
(22:23):
viewpoint on things, for example, don't have an abortion, you know,
adopt your child out instead. That it too, should be
considered a regulation of speech that sort of compels a viewpoint.
It's a viewpoint based restriction and therefore should trigger strict
scrutiny and be presumptively unconstitutional. But that is not what
(22:44):
the Supreme Court did. What the Supreme Court said is
that these laws that compel doctors to speak against their
will and say things that they don't want to say.
The Supreme Court helped that is not a regulation of speech,
that is actually a regulation of the medical profession that
only incidentally affects speech. So they're designing this case against
(23:11):
a backdrop of the Supreme Court already having held in
a different context that speech that is connected to the
provision of medical treatment is not necessarily going to be
treated like speech. And so you know, oh, it just
so happens, right that if you're challenging something that's anti abortion,
(23:33):
it's not speech, but if you're challenging something that's pro LGBT,
it is speech.
Speaker 2 (23:40):
The Supreme Court has been steadily rolling back protections for
gay and transgender people in recent terms. The last time
I can think of that LGBTQ writs one at the
Supreme Court was the boss Stock case in twenty twenty.
Is that the last time.
Speaker 12 (23:58):
I think so, and I think they have really undermined
their own credibility by so aggressively promoting a particular ideology,
and to do so at the expense of a marginalized
community is not to their honor. And let's be clear,
(24:20):
they get to pick and choose their cases. There was
nothing that require them to decide this case. I think,
in addition to its long standing attack on the LGB community.
I think we also are seeing here a real disparagement
(24:41):
of expertise, which we also saw in Scremtti, because to
be clear, there is a consensus in the medical community
that this therapy is really harmful, and yet they did
not seem to accept that. Instead, they kept pushing back
against this idea that the experts knew what they were
(25:04):
talking about, and certainly Alliance Defending Freedom is helping them
by producing all kinds of questionable claims about the reliability
of the science underlying the medical consensus. And to be sure,
the medical community has made errors in the past, but
(25:24):
if we have to rely on something, you know, better
to rely on medical experts and the weight of the
medical community than a right wing political group.
Speaker 2 (25:38):
And the decision here will implicate similar bands on conversion
therapy in twenty six other states. Thanks so much, Caroline.
That's Professor Caroline Malacorbin of the University of Miami Law School.
Coming up next, When can a criminal defense attorney be
barred from talking to his client about his testimony? I'm
(25:58):
June Grosso and you're listening to Bloomberg.
Speaker 1 (26:03):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (26:08):
Thanks for listening to a special holiday edition of Bloomberg
Law as we focus on cases before the Supreme Court.
It's the most difficult decision a criminal defendant has to
make a trial, whether or not to take the stand.
And when a defendant decides to take the risk of testifying,
what role does his attorney play. David Villarreal took the
(26:31):
stand during his trial in twenty eighteen for murdering his boyfriend,
but when there was an overnight break in his testimony,
the judge barred villar Rial's attorney from discussing his testimony
with him. He was convicted, and in his appeal to
the Supreme Court, Villarial argues that the judge's order denied
(26:52):
him effective assistance of counsel in violation of the sixth Amendment.
During the oral arguments, the justice's question just what a
trial lawyer could talk to his client about during an
overnight break in his testimony without crossing over into coaching
the client's testimony. Chief Justice John Roberts posed a hypothetical
(27:13):
to the lawyer for Texas about a defendant asking his
attorney whether he should stop testifying about fred when he
got back on the stand.
Speaker 9 (27:22):
And I notice every time I do that, you know,
Juring number eight gets a big frown and shakes his head.
He doesn't look to me like he likes the idea
of talking about Fred at all. So I think that's
a bad idea. Now, talking about Fred was your idea?
Speaker 1 (27:37):
Do you still think it's.
Speaker 7 (27:38):
A good idea?
Speaker 9 (27:39):
Can the lawyer respond to that question?
Speaker 7 (27:43):
No, they you would have to tell them I'm mom
to a core order not to out to answer.
Speaker 9 (27:47):
So at that point he tells the defendant who's facing
a capital sentence, I'm not going.
Speaker 4 (27:51):
To tell you.
Speaker 2 (27:51):
And Justice Elaina Kagan wanted to know about a lawyer
giving his client some tips on his performance on the stand.
Speaker 13 (27:59):
Do you think that counsel can say, listen, I've been
noticing that you've been mumbling, and you're also not making
eye contact with the questioner, and it would just be
a good idea if you'd stopped mumbling and made eye contact.
Can the lawyer do that in an overnight recess?
Speaker 2 (28:19):
The appeals courts are split on whether so called non
conferral orders during overnight trial recesses are constitutional. Joining Me
is former Manhattan prosecutor and criminal defense attorney. Paul Callan
of counsel at Edelman and Edelman. Paul tell us about
the facts here.
Speaker 4 (28:38):
The defendant, David Villarreal, was a meth addict allegedly who
stabbed his boyfriend to death, and he goes to trial,
and something happened in that trial, and it's something that's
very common in the trial of civil and criminal cases,
and that is he was on the witness stand testifying
and the judge decided to break for the day. It
(29:00):
was about one o'clock in the afternoon, and the judge
gave an instruction which suggested that the defense attorney should
not discuss testimony overnight with his clients because he was
on the witness stand. And later on he's convicted, sentenced
to sixty years in prison, and now he's seeking to
reverse the case, saying that instruction impeded his right to
(29:23):
consult with counsel, pursuing to the sixth Amendment.
Speaker 2 (29:27):
So there was a lot of talk during the oral
arguments about coaching your client. Is there a clear line
between what's permissible and what's impermissible when coaching a client
or preparing a client to testify.
Speaker 4 (29:42):
Well, there's a line across and we call it subornation
of perjury if a lawyer goes too far in giving
advice to his client about how he should shape his testimony.
And so lawyers always have to deal with this situation
that they can't give advice that would constantly subornation of perjury.
Lawyers do, and it's their job to give a client
(30:04):
advice though, about how to testify and a witness stand,
how to conduct themself on the witness stand, how to
reactive as an objection made in court, all kinds of
technical aspects of testimony like that. Clearly lawyers are allowed
to give that kind of advice. But this is a
situation that comes up all the time in both civil
and criminal cases. When there's a recess in the case,
(30:25):
the client wants to talk to the lawyer how am
I doing? Am I doing okay on the witness stand?
And the lawyer wants to encourage them and say, yes, yes,
you're doing great, you know, or no, that was a
stupid answer you gave, you know, try to listen to
the questions that are being asked. So there are a
variety of ways that lawyers approach this thing. So the
courts really have gone back and forth on it. There
(30:48):
are some court decisions saying that during the course of testimony,
if there's a brief recess fifteen twenty minute recess, you
can talk to your client, but you shouldn't discuss testimony
during that time period. When there's a long adjournment like overnight,
then it gets really tricky because really most lawyers think
they shouldn't be discussing testimony with the client, but there
(31:10):
may be other things that have to be discussed. Should
I recommend a plead because the testimony is going so badly?
Should I tell the witness that if he's going to
stick with this kind of a story, we need another witness.
You know, maybe he's got a friend who was refusing
to testify, but now you say, you know, he's got
to come in and testify given the way your testimony
is going. So there's sort of an interreaction between testimony
(31:32):
and even testimony that you're not trying to shape, and
how it affects other aspects of the case as the
case proceeds. So this is a really tricky question for lawyers,
and this will be a closely watched case.
Speaker 2 (31:45):
Some of the justices seem to be leaning toward a
type of limited instruction where the lawyer is prohibited from
directly discussing the testimony with the client during an overnight break,
but is allowed to discuss broader trial strategies and issues
that relate to testimony. And Villa Reale's attorney argued that
(32:07):
that rule is unworkable in the real world, and just
as Sonya Sotmayor gave an example of a lawyer suggesting
that a client take a plea in the middle of
his testimony, that showed why it's unworkable.
Speaker 10 (32:21):
I find it impossible for a lawyer to say I
think you should consider a plea bargain now, and that
the defendant is not going to say, but why, And
the why has to be my considered judgment that gets
me from here to the corner and back with nobody
(32:41):
paying me. Okay, you need to say something. But model
rule says a lawyer shall explain a matter to the
extent reasonably necessary to make an informed decision.
Speaker 2 (32:54):
I mean it's very hard to draw a line in
these circumstances.
Speaker 4 (33:00):
Yes, Villaryal's lawyer made a very compelling argument in that regard,
because so much of the client's testimony. I mean, if
you put a defendant on the witness stand in a
criminal case. His testimony is now the key evidence of
the entire case, and if it triggers problems, that may
cause you as a lawyer to have to go out
and get another witness or maybe bring in some kind
(33:23):
of an expert, because he's raised something about the impossibility
of how a bullet was fired or was aimed when
the murder's shot was fired, or a stab wound it
would be in this case. Yeah, the testimony interacts, from
the legal standpoint, with all of the evidence in the case.
So you restrict the lawyer's ability to talk to the client.
You can't just keep it down to the testimony alone.
(33:45):
Everything interacts with everything else. That's what build in the
way of his lawyers are arguing.
Speaker 2 (33:50):
Justice Elena Kaig and ask this of Texas's lawyer. Do
you think that counsel can say, listen, I've been noticing
that you've been mumbling, and you're also not making eye
contact with the questioner, and it would just be a
good idea if you'd stop mumbling and made eye contact.
Can the lawyer do that in an overnight recess? Texas's
(34:11):
attorney said no, I would consider that to be coaching
their testimony as far as how you present yourself to
the jury. Of course, he's defending the conviction for Texas,
so he's coming at the question from a different angle.
But do you think that would be coaching.
Speaker 4 (34:27):
Well, whether it's coaching or not, I don't know. It
probably is coaching. But that kind of coaching is exactly
what you get hired to do as a lawyer, to
school your client in how he can present his truthful
testimony in the best way possible to the jury. And
I think most lawyers view this situation where a client
(34:48):
is on the witness stand that they will not often
hamper with the content of the testimony in their discussions
with the client, but they may say, listen, stop looking down.
It's making you look guilty. Look at a guy who's
asking you the question. And it's okay to glance over
at the jurors from time to time with your head up.
And I mean, this just has to do with presentation
(35:11):
of the testimony to the jury as opposed to the
truth or falsity of the testimony. And I think that's
perfectly proper that kind of instruction to a client during testimony.
Speaker 2 (35:21):
Of course, you can never tell for sure from oral
arguments how the justices will rule. But it seemed to
me that the defendant didn't have five votes, that the
majority of the justices were skeptical that not being able
to talk to his counsel about his testimony during the
overnight break violated his constitutional rights.
Speaker 4 (35:44):
Well, I'll tell you. And my suspicion is maybe they
just want to stay away from the whole thing, because
I suspect that the truth of the matter is there's
nobody in that room at night when the lawyer is
discussing the testimony with the client, and rule is a
really hard rule to enforce. I suppose you might have
a lot more appeals in cases from defendants who would
(36:07):
say I was on the stand and I needed advice
and the lawyer refused to talk to me, and that's
why I've been convicted, you know what Philip Reality is saying.
So it's a touchy subject and it'll be interesting to
see how the court rules on this thing. Trial lawyers
across the country will be watching very very carefully because
there are lots of discuse. It happens to the civil
(36:29):
cases too, during depositions. You know, you have a civil
case and the guys being deposed, and then they wanted
to take a break, and the lawyer says, well, don't
talk to him during the break. And the lawyer says, well,
you have no right to restrict what I can say
to my client during the break. And I've seen fights
among lawyers, oral arguments among lawyers at depositions about this
very subject. So this one will spill over into civil
(36:51):
practice as well. I think if they make a definitive
ruling on the issue, is.
Speaker 2 (36:56):
There an ethical rule that you shouldn't talk to your
client during a break into testimony.
Speaker 4 (37:01):
There are no ethical rules about it, other than, of course,
a lawyer cannot suborn perjury. So if you're giving the
client advice, you know he's was serving, say self defense
in a case, and he tells you a story in
which he's not under threat from the person he killed
at all, and you say to him, well, you know
(37:21):
it would help if you thought he was trying to
strangle you when you pulled out the knife and started
stabbing him, Well, that would be unethical. You're subborting perjury.
You're telling him tell a lie to say that you
were in fear of your life, that's why you killed him.
So you know, those are the only ethical rules that
apply in terms of shaping testimony. By saying be more polite,
(37:42):
you know, you're yelling at the prosecutor. Don't do that.
It makes you look aggressive and bad. I'm telling you
about stylistic questions and advice from the attorney. You know,
I think that's something that all lawyers do to a
certain extent with clients, and it's probably okay, and matter
of fact, the courts may like it, because if you
get a long winded client and won't give you a
straight answer to a question, a lot of times the
(38:03):
judges are quite asked as the client listens carefully to
the question and answers it succinctly, as opposed to wandering
around and telling all of these lengthy stories, which, by
the way, just open up new avenues across examination for
the prosecutor. You know, clients testifying is one of the
most complex issues of criminal law and always will be.
Speaker 2 (38:23):
And only Justice Katanji Brown Jackson was a criminal defense
lawyer who might have faced some of these problems with
a client testifying. She was an assistant public defender in
DC Justice Sonya so Tomayor is the only other trial
lawyer on the court, and she was a Manhattan District
attorney like you, Paul, thanks so much for joining me today.
(38:45):
That's Paul Callen, former Manhattan prosecutor and criminal defense attorney.
And that's it for this edition of the Bloomberg Law Show.
I'm June Grosso.
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