Weekend Law: Racial Profiling, SCOTUS Changes & DC Grand Juries Resist

June Grasso discusses the top law stories of the week with legal experts.

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Episode Transcript

Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
We will bring justice to this issue to our community.

Speaker 2 (00:13):
We will not stand for this type of discrimination and racism.

Speaker 3 (00:18):
Los Angeles Mayor Karen Bess slammed the Supreme Court's emergency
ruling this week that allows ice agents to stop and
detain people based on their race, language, job, or location,
factors that a federal judge had found unconstitutional. The ruling
was six to three, with the conservative justices in the

(00:39):
majority and the liberals in descent. Immigration advocates like Columbia
Law School professor Alaura Mukherjee say it means the Court
has essentially legalized racial profiling.

Speaker 4 (00:51):
What this means in practice is that immigration officers, as
well as other law enforcement officers, now practically have an
invitation to engage in racial profiling when they are carrying
out stops. The effect of this decision is that America
has become a show me your papers country for the

(01:13):
overwhelming majority of people of color.

Speaker 3 (01:16):
The ruling was a one paragraph order with no explanation
at all from the majority. My guest is a leading
authority on racial profiling, Professor David Harris of the University
of Pittsburgh Law School. David, I want to start with
the basics. When can law enforcement stop someone under the
Fourth Amendment.

Speaker 5 (01:37):
People can be stopped by the police under the Fourth
Amendment when there is reasonable suspicion that a crime is
afoot and they may be involved in the crime, and
reasonable suspicion is less than probable cause, but it is
based on facts and reasons. Now, when we transition from
detecting crime to looking at immigration issues, the standard is

(01:59):
still reasonable suspicion. There must be facts, and there must
be proper inferences. But what we're looking for, of course,
is whether a person is in immigration status or not.

Speaker 3 (02:12):
So with this ruling, the Supreme Court put on hold
a federal judges order tell us about the order at stayed.

Speaker 5 (02:20):
The lower court in Los Angeles had decided that ICE
and its law enforcement allies were using factors to stop
people that inevitably led to unconstitutional stops, and the lower
court had said, you may not use, either alone or
in combination, the factors of somebody's Hispanic or Latino appearance,

(02:46):
speaking Spanish or having an accent appearance, that you are
engaged in low wage work, and being at a location
associated with day labor, and the Court said, you can't
do this anymore because I can see from the evidence
that I took that this is being done in ways

(03:07):
that violate the Constitution. And what the Supreme Court did
on its emergency docket was to say, no, no, this
order will not go into effect. We're holding it for
now until we have more time to look at it.
And Justice Kavanaugh wrote an opinion that is not for
the court, saying that he believed that the administration who

(03:31):
want to be able to use those factors will succeed
when they get to a full hearing, that they'll win,
and therefore Ice and the police allies can go back
to using those factors when they stop people to see
if they are in violation of the immigration laws.

Speaker 3 (03:50):
Are they basically saying, well, racial profiling's okay.

Speaker 5 (03:53):
Then what they're doing is they're looking back, and this
is the best we can tell. We're not really sure, because,
like you said, there is no opinion, so we're having
to speculate to some extent. But what they seem to
be saying, based on the fact that they stopped the
lower courts ruling which would have put a stop to
all of this and Justice Kavanaugh's opinion for himself is

(04:15):
it's okay to use some combination of those four factors
ethnic appearance, Spanish speaking or accent, appearance of being a
low wage worker in these particular locations. Now, Kavanaugh was
clear on saying, you can't just say, well, this person
looks Mexican and that's enough. But it's a very slippery

(04:36):
slope down to exactly that point. Our experience with this
sort of thing goes back many years now. I've been
studying racial and ethnic profiling for well over thirty years,
and we've seen it. We've seen exactly this kind of
thing before. We saw it when Arizona enacted the show
your Paper statue back in about two thousand and eight

(04:56):
or so, and Sheriff Joe Rpio went to town on
that and it was just picking up people because of
how they looked in their Spanish speaking or their accent.
And that is racial profiling by any other name. I mean,
we don't want to call it that, fine, but that's
what happened. Law enforcement begins to lean on the most

(05:17):
obvious factors, and that's what the judge saw in Los Angeles,
and that's why the judge stopped them from doing this
in the first place. So all of this will move
immigration enforcement efforts right up to that very same line,
and we will have people getting picked up just for
how they look and whether they're Spanish speaking. It's going

(05:37):
to happen as night follows day.

Speaker 3 (05:39):
And the only way we'll find out what factors the
immigration officers are relying on is if someone who's detained
brings a lawsuit, right.

Speaker 5 (05:49):
Exactly, and there will be some cases broad chances there,
because one of the other effects of this is going
to be that lots of people will be interrogated and
even picked up and arrested who are in good order
as far as immigration law. That's another thing that we see.
Whenever there is widespread sort of dragnet pulling people in

(06:12):
on these very basic factors, they end up making mistakes
when they're allowed to lean on those kind of factors,
and we will get a few people who end up
in custody, maybe for a few days, maybe for a
long time, maybe even getting deported before it can be
reversed and they can bring a case. Justice Kavanaugh says
in his opinion, well, look, if everything's in order, they'll

(06:35):
just let you go and He says it's an important
problem in Los Angeles because there's an estimate of stake
two million people who are undocumented in Los Angeles. But
what he doesn't say is that there are millions more
who share those characteristics, who have ethnic features of people
from Latin America, who speak Spanish, who have a Spanish accent,

(06:58):
and they're going to be swept up in this two
and that's where the cases will probably come from.

Speaker 3 (07:03):
Just as Kavanaugh said, as for stops of those individuals
who are legally in the country, the questioning in those
circumstances is typically brief, and those individuals may promptly go
free after making clear of the immigration officers that they
are US citizens or otherwise legally in the United States.
He doesn't mention that one of the plaintiffs here, Jason

(07:24):
Brian Gavidia, who's an American citizen, was stopped by immigration agents,
shoved into a metal fence and his arm was twisted
behind his back, all the while that he's shouting, I'm American,
I was born in East LA And there's video of
it that anyone can see on the internet.

Speaker 4 (07:47):
Literally.

Speaker 3 (07:52):
Gavidia says that he was frightened and the agents took
his phone and ID. He was released, but he never
did get his ID card back.

Speaker 5 (08:00):
Yeah, this is going to happen. This is going to
happen more now that everybody can see, including the ICE
agents and the police are helping them, that they've been
given the green light. We will have that happen. It's
a certainty. And for Justice Cavanaugh to say, hey, it's
all fine as long as you carrying your papers with it, well,

(08:21):
I mean, do you carry your birth certificate to work?
I mean does everybody do that? And even if you do,
you might not get those things back. You can be
in big trouble even if you have crushed every t
and dited every eye and you were born here. So
I just really took offense at that. I think it's
somebody who never has to confront these problems making a

(08:42):
pronouncement he knows nothing about.

Speaker 3 (08:44):
So Justice Sodomayo wrote a stinging descent quote, we should
not have to live in a country where the government
can seize anyone who looks Latino, speaks Spanish, and appears
to work a low wage job. She quoted in nineteen
seventy five case that said it was unconstitutional for the
border patrol to stop a car and question its occupants

(09:06):
when the only ground for suspicion was that they appeared
to be of Mexican ancestry. Does this shadow docket decision
contradict that decision or is it broader?

Speaker 5 (09:18):
It's a little broader, But again we're less to speculate
because it's just on the shadow docket. But that's a
live question. For sure. There is an older case that
says things like that you have to go beyond just
ethnic appearance, But certainly it does also say that same case,
ethnic appearance counts. And my experience, in the experience of

(09:40):
those who study this as I have, is that when
that's a factor that is relied on, even with others
in the mix, law enforcement leans heavily on. It discounts
the other factors that may go in the other direction,
and you get mistakes.

Speaker 3 (09:56):
Immigration advocates fear that this decision will open the door
to racial profiling across the United States. Do you think
that now that the Supreme Court has found this is
okay in Los Angeles, that it will also be okay
in Chicago or New York or other cities.

Speaker 5 (10:17):
Well, again, we're left without full knowledge of what the
Supreme Court has done or will do. We don't know
how far they will go or what they will say
in the end. But people who know just the headline,
if they're in the enforcement business, that's how they're going
to take it. Supreme Court says it's okay to use

(10:37):
racial or ethnic appearance. They're not even going to make
the distinction that Justice Kavanaugh does, which is that wouldn't
be enough by itself. They're going to take it as
racial profiling is okay. And if it's okay in LA,
why wouldn't it be okay in Chicago or New York.
And when they say blood his own, they mean lots

(10:57):
and lots of people from our force will be out
there doing this and long range. What you care about
is public safety. You are doing the wrong things because
public safety depends on public support. You need the public
to give the police information about what's what in the neighborhoods.
If this is happening not just to people who might

(11:19):
be deported legitimately, let's say, but to people born here
because they look a certain way. That is going to
alienate people not just from ice, but from police generally,
and it makes them less likely to cooperate with any
policing of any type. So this immigration policy of flooding
the zone with forces with these low accuracy factors, this

(11:42):
is going to make it more dangerous for US just
on the level of regular crime.

Speaker 3 (11:48):
Thanks so much, David. That's Professor David Harris of the
University of Pittsburgh Law School. Coming up next. How the
Roberts Court has changed the law. I'm June gross when
you're listening to Bloomberg. Chief Justice John Roberts famously compared
judges to umpires during his confirmation hearings in twenty ten.

Speaker 1 (12:08):
Judges are like umpires. Umpires don't make the rules, they
apply them. The role of an umpire and a judge
is critical. They make sure everybody plays by the rules.
But it is a limited role.

Speaker 3 (12:23):
But many legal experts say the Roberts Court has changed
the rules playing anything but the limited role of an umpire.
During the twenty years since he's been chief, the Court,
with its conservative majority and now conservative supermajority, has dramatically
changed the law on abortion, gun rights, race, religion, federal agencies,

(12:47):
and presidential power, overturning precedents that got in the way
and moving the court further and further to the right.
My guest is constitutional law professor Eric Siegel of Georgia
State Universal. Eric, what do you think of Robert's comparison
of justices to umpires.

Speaker 6 (13:06):
Well, Justice Kavanaugh repeated that years later as well, despite
the mockery of virtually all court watchers pungents across the
political spectrum on that statement by Justice Roberts, they're not umpires.
They've never been umpires. In eighteen fifty seven, Congress wanted
to end slavery in the territories. Congress had the power
to do that under the Constitution. The Court made up

(13:27):
a new rule and said no, And from nineteen hundred
to nineteen thirty six the Court struck down hundreds of
laws about minimum wages, overtime rules, and labor conditions. The
Constitution allows Congress to do that. The Court wasn't playing
like an umpire, And I think conservatives would fairly say
that cases like rovers Wait were not the justices acting
like umpires. So no, it was a silly statement when

(13:47):
he made it. It was even sillier for Justice Kavanaugh
to repeat it during this confirmation airing. The Constitution is
a very vague document when it comes to litigation, there
are some specific things. The president has to be thirty
five to centers from every state. Inauguration day is January twentieth.
But we don't litigate those clauses. We litigate due process,
equal protection, cruel and usual punishment, unreasonable searchers and seizures,

(14:11):
and so on. It'd be a thing to an umpire
you get to decide what's fair in a baseball game.
That's not what umpires do in baseball. They have some discretion.
Of course, we've told the Supreme Court in effect make
the constitutional rules for America, and that has nothing to
do with sports.

Speaker 5 (14:26):
Someone.

Speaker 3 (14:27):
There are a lot of areas where the Roberts Court
has changed or reshaped the law. Some changes seem dramatic,
like abortion and gun rights. Other changes, like the laws
around race, seem slower in coming. Tell us about Robert's role.

Speaker 6 (14:42):
There other than the presidential immunity decision in Trump versus
the United States, one of the worst opinions in Supreme
Court history. In my opinion and many others, leaving aside
that opinion written by Justice Roberts, I think he's done
the most damage to America when it comes to race,
and it started in his very first term, when the
cities of Seattle and Louisville. Let's take Louisville for a minute.

(15:05):
You know, Louisville had segregation under the law for many,
many years. Those schools were still segregated. So at the
very local level, students and teachers and parents and school
board members and voters got together and came up with
a very limited plan to make sure that the public
schools in Louisville had some minimal degree of desegregation so

(15:28):
that white kids and black kids in Louisville could go
to school together. And no judge ordered this. This was
volunteer and in his very first term, the Roberts Court
struck that down. And that's when Justice Roberts said the
famous line, the way to stop discrimination based on race
is to stop discriminating based on race. In the context
of Louisville, Kentucky, which discriminated in the basis of race

(15:49):
legally for a century, that's, in my opinion, a very
bizarre statement. And even Justice Kennedy, who was a fifth
vote in that case, disagreed with that statement. So it
started there. Everybody knows that Justice Roberts does not like
voting rights as a young attorney in the Reagan administration
in nineteen eighty one, he wrote some scathing things about
the Voting Rights Act, and then, of course, in Shelby

(16:10):
County versus Holder, he was able to concoct a new
rule that Congress can't treat different states differently without a
strong reason and struck down a law that was passed
by a unanimous Senate and signed by a Republican president.
That law was struck down, and then the very next
day Texas and North Carolina passed the voting rules they

(16:31):
could not have passed prior to that law being struck down.
They've also interpreted the Voting Rights Act very narrowly, and
I think this next year even more narrowly again. And then,
of course there's the Affirmative Action case, which overturned fifty
years of president and said colleges and universities are not
allowed to use race at all in their admissions process.
It says, if Justice Roberts thinks race was never a

(16:53):
problem in this country, it's as if he thinks we
can just snap our fingers and all of our racial
divisions will go away. And Justice Roberts has really turned
a cold shoulder to dealing with those problems.

Speaker 3 (17:06):
There was a time when Roberts seemed I guess you
could describe it as more middle of the road. He
did write the opinion saving Obamacare, and in the Dobbs decision,
he wouldn't have gone so far as to actually overturn Roe.
So is it Roberts that's moving the court to the
right or is it the three Trump appointees that gave

(17:27):
the court a conservative supermajority.

Speaker 6 (17:30):
There's no question those three Trump appointees have played and
will continue to play a significant role in moving the
court far to the right. But it's also a little
bit of a myth that Justice Roberts was ever anything
less than an extremely conservative justice. Yes, he did save
part of Obamacare. Remember he did not save the medicaid

(17:54):
part of Obamacare, which was actually a key part of
that law, and by striking down that part of law,
the Court did serious damage to Obamacare in complicated ways
that health policy experts could explain. Before twenty twelve, in
a seven years preceding that case, he had never joined
with the liberals in a five to four opinion. Since then,
he's joined the liberals a few times. And you're right

(18:16):
about Dobbs but there is no question that he would
have eventually voted to overturn Row. Justice Roberts' formula has
been consistently in voting rights, race cases, abortion cases, and
separation of powers cases. Punch holes in the precedent, punch
holes in the precedent, then reverse the president. There is
no doubt he would have eventually voted to overturn Roe

(18:37):
versus Way. So I think even a five to four
court run by Justice Roberts would be an extremely conservative court,
and with the exception of Justice Kennedy's votes on affirmative
action in gay rights, was an extremely conservative court for
most of Justice Roberts's court.

Speaker 3 (18:53):
There seems to be a lot of movement lately in
the area of federal agency authority, and likely more changes
to come. Tell us what's been happening there.

Speaker 6 (19:05):
Most of the laws that govern American private conduct and companies,
environmental regulations, food and drug regulations, they all come from
the executive branch. Congress passes a very broad law saying
pollution is bad. President, go fix it. Congress passes the
law saying we want to have to stay food. Executive branch,
you go ahead and fix that. Well. Donald Trump's a

(19:26):
businessman who doesn't like regulations. He appointed three justices who
don't like regulations, and they are doing everything they can
to make it harder for the executive branch to pass
regulations such as environmental and food and drug laws. And
it's very hard for Congress to do it because they
don't want to politically take the hit. So it's not
a surprise that this Supreme Court is trying to really

(19:49):
go back to a nineteen thirty's pre New Deal understanding
of federal power over the economy because these are people
who believe, you know, in a tur free marketplace, not
burdened by government regulation. And of course not just in
the court, but this is filtering down all through the
Trump administration. But the justices share that political goal, and

(20:13):
that's what we're seeing.

Speaker 3 (20:14):
Roberts is the Chief Justice, but his vote is just
one of nine votes, So how much power does he wield?

Speaker 6 (20:23):
So a very famous lower court judge, maybe the most
famous lower court judge of our lifetimes, Judge Richard Posner,
used to say that the Chief Justice really has no
power except you know, to decide who writes the opinion
when he's in the majority, and maybe some administrative rules.
So I have a theory about Chief Justice Roberts's vote

(20:43):
in the Obamacare case, which is that from two thousand
and five, when Justice Roberts became the chief to twenty twelve,
he had no power at all because Justice Kennedy held
all the power. In that first term, Justice Kennedy was
in the majority of one hundred percent of five votes,
and for the next seven years the court went the
way Justice Kennedy went. Supreme Court justice is a human beings.

(21:06):
They are people like us. Now they have better jobs
than most of us, but they aren't like us. And
you know, Chief Justice Roberts, I think always wanted to
be on the Supreme Court and always wanted to be
Chief Justice. I'm not saying he thought he would ever
get that, but you can't go any higher in the
law than he went. And he had no power because
Justice Kennedy had all the power. I think psychologically that

(21:27):
was a factor in his decision in twenty twelve in
the Obamacare case. So the story after twenty twelve became, oh,
Justice Roberts is a swing vote also wasn't really true.
Today he has very very little power. He has to
get either Justice Barrett or Justice Kavanaugh or Justice Gorsich
to agree with him when he doesn't want to rule

(21:48):
in a conservative fashion, because he's never getting the Leado
and Thomas to rule with him. So I would say
he has no more power than Gorsic, Kavanaugh, and Barrett.
And I'm not even sure he's more power than Justice
Barrett with the exception. And it's a big deal. When
he's in the majority, he gets to assign the opinion.
But other than that, his vote counts the same. And frankly,

(22:10):
I think he was a little bit scarred in the
first seven years on the bench when his vote counted
much less than Justice Kennedy's vote.

Speaker 3 (22:19):
So how do you think he ranks as far as
chief justices who've led the court?

Speaker 6 (22:26):
My guess is he's going to go down as one
of the worst chief Justices. And I say this for
the following reason. History has shown that when the Supreme
Court lurches far to the left or to the right,
eventually the political system goes the other direction. So when
the war In Court went too far to the left,
and I'm a liberal progressive who will say I think

(22:49):
the Warren Court went too far to the left, then
Richard Nixon runs on a law an order campaign run
a Reagan runs on Roe versus Wade, you know, and
Republicans hold power for most of that time period. In
the this Supreme Court, I think, and I think political
scientists think, is far to the right of the median
Republican voter, leaving aside the median Democrat voter. So my

(23:11):
guess is eventually there will be a cycle where the
political system lurches in the other direction, and then we
will see just how conservative his court has been. It
has been very, very conservative, and there are even conservatives today, scholars,
even from federalist society folks, who are saying things like this,

(23:33):
respect for precedent is not a conservative value. Right Conservatives
like the status quo. Progressives want to change the status quote.
The Roberts Court has been reversing important precedents at I
think a rate that's probably unheard of in American history.
I'm not saying they're reversing more cases. The importance is
are the reversing important cases guns, abortion, affirmative action, separation

(23:59):
of church and state, separation of powers, and even federalism,
which traditionally has been a very conservative value. Those areas
of the law have been dramatically rechhaped in two short decades.
There's no definition of conservative that I know that suggests
that judges should be the ones doing it.

Speaker 3 (24:18):
And looking at the term coming up, there may be
more changes ahead. Thanks so much, Eric, that's professor Eric
Siegel of the Georgia State University coming up next on
the Bloomberg Law Show. They say that prosecutors can get
a grand jury to indict a ham sandwich. Well, it
seems that doesn't apply to the prosecutors in the DCUs

(24:39):
Attorney's office. I'm June Grosso and you're listening to Bloomberg.
You've probably heard the famous saying that prosecutors have so
much influence on grand juries they could get them to
indict a ham sandwich. Well maybe not if that prosecutor
is in the DCUs Attorney's office trying to get a

(24:59):
gret to indict someone overthrowing a salami sandwich at a
federal agent. DCUs attorney Janine Piro bragged about charging the
man who threw the sandwich with a felony of assaulting
a federal law enforcement officer.

Speaker 4 (25:16):
And then he took a subway sandwich about this big
and took it and threw it at the officer. He
thought it was funny. Well, he doesn't think it's funny today,
because we charge it with a felony assault on a
police officer, and we're going to back.

Speaker 5 (25:30):
The police to the hilt.

Speaker 4 (25:32):
So there, stick your subway sandwich somewhere else.

Speaker 3 (25:36):
But the grand jury apparently didn't get Piero's joke, and
the US Attorney's Office didn't get their felony indictment against
Sean Dunn, known now as the Sandwich Guy. Prosecutors have
now charged him with a misdemeanor of simple assault, which
doesn't require a grand jury's input. It's extraordinarily rare for

(25:58):
a grand jury to refuse to return an indictment, but
it's happened with DC grand juries at least seven times
since President Trump ordered a surge in patrols by federal
agents and troops in the nation's capital. Joining me is
former federal prosecutor Robert Mintz, a partner Mat Carter. In
English Bile, people know the basics of the workings of

(26:21):
a jury even if they haven't been on one, because
it's depicted so much in the movies and on TV,
but less so about the workings of a grand jury.
So tell us about the grand jury.

Speaker 2 (26:33):
A grand jury proceeding is necessary when ever, prosecutors are
seeking to bring a felony charge. Under the Fifth Amendment,
there is a requirement for capital or otherwise infamous crime
to go before a grand jury, which in the federal
system is between sixteen and twenty two citizens, in order

(26:54):
to establish probable cause to bring the charge. But that
means is prosecutors have to ass thankfully present their case
to the grand jurors in order to bring the indictment,
and what goes on in the grand jury is entirely
controlled by prosecutors. It's a presentation in which only the
prosecutor is present. The defense lawyer is not allowed inside

(27:16):
the grand jury. The defendant does not get a right
to testify before the grand jury. It's really the prosecutor
asking questions of witnesses, who may summarize interviews on other
evidence that they've gathered, and allow for hear stake to
be presented to the grand jury to establish whether or
not there is probable cost to bring that charge. Now

(27:37):
bear in mind that probable cause is a very low bar.
It only means that there is a reason to proceed
with the case and that the prosecutor is able to
get an indictment and then that case will go to trial.
But prosecutors can only bring a case that they believe
that a reasonable jury can convict down the road on
the standard of trial is beyond reasonable doubt. So getting

(28:02):
an indictment in front of a grand jury is usually
a very easy task for prosecutors and is exceedingly rare
for prosecutors to present a case to a grand jury
and not have the grand jury return an indictment.

Speaker 3 (28:15):
Has that ever happened to you?

Speaker 2 (28:17):
I was a prosecutor for ten years and I never
had a single instance in which the grand jury refused
to indict, and while I was in the office, I
think it only happened about one time. So it is
very very rare, and it's rare for a couple of reasons.
Number One, prosecutors only bring cases where they believe there
is strong evidence, because again the case has to go

(28:39):
beyond the charging stage. Prosecutors have to believe that they
could ultimately convince a jury of proof beyond a reasonable doubt,
which is the highest standard we have in our legal system.
And so in order to be able to satisfy that standard,
there certainly has to at least be probable cause, which
is the very lowest standard we have in order to

(28:59):
bring the charges. The other reason is that prosecutors are
very selective in which cases they bring, and they tend
to bring cases in which there is overwhelming evidence and
they believe that they're be able to gain that conviction
that trial. Otherwise, prosecutors can decline to bring the case,
or they can bring different charges that would be easier
for them to prove at a trial.

Speaker 3 (29:19):
And whereas at trial in a criminal case the jurors
have to be unanimous, in a grand jury, they don't
have to be unanimous.

Speaker 2 (29:27):
Right, That's exactly right. A criminal trial does have to
be a unanimous verdict. In order to get what's called
a true bill, or have grand jurors return an indictment,
you only need twelve of those grand jurors to vote
in favor of the indictment.

Speaker 3 (29:40):
One of the cases where the US Attorney's Office couldn't
get an indictment involved a woman who allegedly tried to
interfere with the transfer of two people into ice custody,
and the US Attorney's Office was trying to get an
indictment for felony assault against a federal officer. Three grand

(30:00):
juries refused three, so the office opted to charge a
misdemeanor instead.

Speaker 2 (30:07):
It's very unusual. In order to sustain a charge of
assaulting a federal officer, prosecutors have to show that the
federal officer face a fear of death or serious bodily injury,
and it does carry a penalty of up to eight
years in prison. So it's very unusual for grand jurys
to be faced with a potential charge of assaulting a

(30:28):
federal officer and not return an indictment. There really are
two possible reasons why that happened, And again, what goes
on in a grand jury is entirely secret, so we
don't really know what their reasons are. And when a
grand jury decides not to return a true bill or
not to return an indictment, they don't have to give

(30:49):
any reasons and don't give any reasons. It's simply a
vote that either is twelve in favor of indictment or
not twelve in favor of indictment. So at the end
of the day, we don't really know the grand jury's reasoning,
but we can surmise that it's really one of two things.
Either prosecutors hadn't made out their case for probable cause,
which it only means there's evidence that a crime has

(31:11):
been committed and that the individual who prosecutors are seeking
to charge have committed that crime, or the other reason
is something called jury nullification, which really happens at trials
more than it happens in front of grand juries. And
what happens there is that sometimes jurors will hear a
case and jurors may actually believe that the prosecution has

(31:34):
met its burden of proof, but for other reasons decide
that they are not going to vote for a conviction.
That's something called jury nullification, and it generally happens when
there's some feeling among jurors that there's been some overreaching
by prosecutors or some improper conduct by prosecutors. Once again,

(31:55):
the jury system, just like the grand jury system, is
entirely secret, and prosecutors as a general rule, never find
out why jurors vote a particular way unless there is
some aleked impropriety in the jury process, but otherwise there's
no way of knowing why jurors vote a particular way.
All they will know is at the end of the day,

(32:17):
the jurors did not vote in favor of conviction. And
sometimes it happens because jurors simply believe that there's something
improper about the charge, about the nature of the prosecution,
about the way prosecutors handle the case, and so even
though prosecutors may have met the burden of proof, the
jury may decide not to convict. It really is kind

(32:40):
of an act of civil disobedience by juries, and it
very rarely happens, but it does happen on occasion.

Speaker 3 (32:48):
You heard Pierro saying we're going to back our police
to the hilt. And these cases that we've been talking
about involve assaults of some kind on law enforcement. For example,
the guy who threw the subway sandwich at the federal officer,
and there was another case where a guy was accused
of swinging his arms at a park police officer. So

(33:12):
is this likely the grand jurys saying they're overcharging these cases.

Speaker 2 (33:17):
Well, we don't really know why grand juries are refusing
to return indictments here, but I think it's a fair
assumption that the grand jurors are looking at these charges
and deciding that either there is no probable cause which
seems unlikely. The more likely conclusion I think we can
reach here is that the grandeurs are deciding that prosecutors

(33:40):
are overcharging, that they're looking at the body camera evidence
so they can see exactly what went on here and
asking themselves, while that may have been improper, while the
defendant may have touched a federal officer, while they may
have acted improperly, did they really assault them? Were they're
really intending death or serious bodily harm? And it may

(34:00):
well be that grandeurs are putting themselves in the shoes
of the defendant and saying, what would I do in
that circumstance where maybe I was very upset, or maybe
the defendant is placed in a situation where they felt
that what was going on by the National Guard or
by federal officers was somehow went proper And again, touching

(34:22):
of a federal officer or any way impeding what's going
on in terms of federal officers trying to conduct their
business is improper. But the question is does it amount
to assaulting a federal officer or is really some lesser
charge more appropriate. But I think what we can conclude
here is that in those instances, grandeurs believe that prosecutors

(34:44):
were overcharging those cases and that while the conduct may
have been inappropriate, it didn't rise to the level of
assaulting a federal officer.

Speaker 3 (34:52):
Is a grand jury considered sort of a safeguard against
prosecutorial overreach.

Speaker 2 (35:00):
Concept of an indictment is enshrined in the Fifth Amendment,
So even going back to the founding of this country,
there was always a concern about the government being able
to bring charges on its own, and that's why we
have this concept of the grand jury where they hear
evidence and prosecutors have to convince those grand jurors, who

(35:23):
are just like any other jurors out there. They are
randomly selected and then they are questioned and then they're
made a part of this grand jury and all they
do is hear evidence for possible charges, and it goes
on for about a year and a half while they
sit and hear these cases once a week. But they
are put in place pursue it to the intent of

(35:43):
the framers of the Constitution to act at the buffer
between the government and decisions to charge citizens.

Speaker 3 (35:51):
And also a federal magistrate has criticized the DCUs attorney,
saying that people are being held in jail while the
US Attorney is trying to get these indictments from a
grand jury.

Speaker 2 (36:05):
Again, this is really very unprecedented because usually indictments are
given very freely, and that really is pretty much the
case because of the way prosecutors control that whole proceeding.
So it's very unusual for prosecutors to have to go
in front of a grand jury multiple times in order
to try to get an indictment, and all the while

(36:25):
that's happening, the defendant is remaining in jail. What is
also extremely unusual is for the US Attorney in Washington,
d c. To name Piro to get into stick a
public dispute with a sitting magistrate judge where she is
calling him out by name and the magistrate judge is
so openly critical of the US Attorney's office. We rarely

(36:49):
see that kind of public display between prosecutors and judges. Generally,
there is a level of trust that judges have in
the federal government and particularly with regard to the US
Attorney's offices, and my experience, judges did show a degree
of deference to federal prosecutors. And when there comes a
time where judges are no longer trusting. It really does

(37:13):
throw stand to the gears of the justice.

Speaker 3 (37:15):
System, and that's reportedly happening in other courtrooms as well.
Thanks Bob. That's Robert Mints of McCarter and English 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 Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot bloomberg dot com, slash podcast Slash Law,

(37:37):
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg