A Jesse James Train Robbery and the Three-Strikes Law

October peppering the lawyers with hypotheticals. Justices Stephen Bryan and Elena Kagan were particularly inventive. Jesse James, who I know what he did because I've seen movies, all right, So Jesse James gets on the train, and he goes to one person, and then the next person, and then the next person takes their stuff, you know, in the next car, in the next car, correct, correct, And moreover, you're gonna put him in jail for fifteen years, or maybe he

deserves it. But his cousin, Harry James, only robbed one car in one train once, but there were four people on it. And then he gave up his life of crime and you're saying not just Harry, but also not just Jesse, but Harry too, will spent fifteen years in jail. Extra Suppose that there was a crime boss, and he was a good multitasking crime boss, and he had a

few phones in front of him. He's sitting in his office one day, and on one phone he's arranging a sale of illegal drugs, and on another phone he's ordering the killing of a competing crime boss. And another phone he's involved in an illegal gambling operation. And they're all going on very close in time to each other, single

occasion or three occasions. In a unanimous opinion this week, the joice has decided that Wooden had committed one crime and so would not be getting the mandatory fifteen year prison sentence under the three strikes law. Joining me is Jordan Reuben, a reporter with Bloomberg Law. Jordan, give us a little bit of the background in the case. The

defendant in this case, William Wooden. He was sentenced under a law called the Armed Career Criminal Act, and that's a law that has fifteen year mandatory minimums when a defendant is convicted of a federal gun crime and they have three or more prior violent felonies or serious drug offenses. And so the issue in his case was whether his prior offenses counted towards this three strikes law, the Armed Career Criminal Act, and it's a law that is being

litigated all the time at the Supreme Court. Really drives the justices nuts because of how difficult it is to figure out whether these prior convictions can count. And there's just so many issues that arise in trying to figure that out. And that was what was happening in Wooden's case.

Tell Us about the burglary, wouldn't have pleaded to it was sort of an escalating crime, but in one place exactly, And so it's all about how you describe it, right, And the issue here was this specific component of the Act, which includes crimes that are quote committed on occasions different from another end quote And so the question is what

counts as an occasion? Sounds simple enough, right, Well, the court had a pretty difficult time with it because they were looking back at Wooden's prior convictions, namely back to this one night in Georgia where he pleaded guilty to ten counts of burglary for entering ten units of a Georgia mini storage facility on the same night. The question was whether that counts as ten separate offenses under this

career criminal law or just one. And so that all came down to the question of whether it was one occasion or whether it was ten different occasions, and the Court, in an opinion by Justice Kagan, said that counted as just one asian based on plain English meaning of the word occasion. I think if you gave the average person that scenario, they would most likely think it was one crime. But yet the Six Circuit Court of Appeals found that

he committed ten crimes exactly. So before the court's decision in what In's case, there was a split in the appeals courts, and there were courts of appeals like the Six Circuit, which kind of bros time, and they looked at it from a standpoint of was the crime completed at each moment, so at each point where what had entered a different storage unit, and so therefore it counted

as ten different offenses. Other courts took what Justice Kegan's opinion called a more holistic approach and looked at the broader circumstances sort of from more of a common sense point of view, but different courts looked at it different ways, and so that's why the Supreme Court took the case in order to clear up the split. I love Justice Kagan's opinions, and in this one she used examples involving

a wedding ceremony and a bar room brawl exactly. There was a lot of colorful aspects to just Cagan's opinion. She's a great writer. He talked about, for example, how if someone had busted out on a condo line or something like that while you were giving your wedding vows, that would all happen during the wedding occasion. But obviously that's not the way that normal people will refer to the term. And so that was kind of the thrust of Kegan's opinion, all about trying to describe it in

a way that normal people would talk about things. So now she also put forth a couple of factors that courts could consider in the future, whether the offenses were committed close in time in an uninterrupted course of conduct, whether the occurred in one place, whether they shared a common scheme or purpose. And Justice course that didn't agree

with that right. So it was an interesting opinion in terms of the breakdown, because really all the US has agreed on the bottom line in terms of the government being wrong here, but there were some differences of opinion about how to go about arriving in that bottom line. And so Justice Gorsetch he took issue with this multi factor test. He thought that the court was really making

it more complicated than it had to be. His opinion was all about something called lenity, which is this longstanding rule that in ambiguous situations courts should defer to the defense. And so Gorgius said, you don't need to go through all this multi factor test, which may be helpful, maybe not just decide the case based on lenity, which, by the way, he wrote, is something that should be playing a bigger role in the law generally. And he was

joined by Justice Sonya. So to Mayor, they're often of like mind in criminal cases. Yeah, that's certainly where we'll see them together. Certainly not of a like mind in many other cases, but we do see them kind of forming this, you know, semi regular odd couple in these criminal cases. Certainly not every type of criminal case, like the death penalty, for example, but here we'll have them speaking out on these broader criminal issues, and this was

the latest example of that. So you had so tomor as you say, joining Gorsage in this call to give Lennedy more of a prominent role in the courts cases in general. What about justice Kavanaugh, he wrote a separate concurrence, right, So Kavanaugh wrote basically to respond to Gorsage's opinion. And so Kavanaugh, he said, he agreed with the general problem that Gorsach was raising in terms of making sure that people have fair notice of what's illegal and do process

and all of that. Kavanaugh thought that Lennedy properly plays a small role in the law, and so he would focus more on what's called men's reya, the presumption that people have a guilty mind and that the government proved that in the course of a prosecution. So Kavanaugh thought that this men's rea assumption, as opposed to lenity, would take care of the problem that Gorsitch was raising. And these were all in concurring opinions. It wasn't really any

strong discent per se. Everyone was basically an agreement on the bottom line of what was happening. But there were some interesting sort of side conversations about the law in general. You spoke to someone who said that this might indicate that the subject of lenity is going to be coming up again at the court. That's right. So a couple of people, I suppose to after the opinion both led this lenity issue as an interesting topic that again as

shown by this fairly lengthy conversation between Gorsich and Kavanaugh. Again, and this is something that didn't come up at all

in Kagan's opinion. That's part of why it's noteworthy that this was a conversation taking place almost entirely on the side, so to speak, and a show that this was a live issue from a couple of the newer justices and again joined by so do Mayor as well, that this is something that's on at least some of the justice's mind and it's something that we're going to be looking out for going forward. Is there a retroactive effect to

this decision? So, I think most likely not. Again, when the court is ruling on the criminal issue, they're not dealing with the question of retroactivity. I think as a general matter, it's fair to say that this is a court that is not in favor of retroactively applying rulings, and so what's going to happen next For people who have already been sentenced in their case, they're already underway.

It's going to come down to a somewhat tricky procedural mechanism of how far along in the appellate process they are. So I think it's going to be a case where some people might be able to benefit from this, some might not, depending on how far along they are in

the process. But at the very least, it's going to be something that going forward, people who are in the type of situation that would enter in in all the circuits now, not just the ones who ruled more in the way that he wanted to, are going to be able to take advantage of this rule. That's better for defendants. Jordan. Is this a decision that will affect a lot of defendants? I think it will. This is a very frequently litigated statute. That's why the government fought so hard in this case.

So these cases are being litigated at the court every year because it's the law that is being used all the time. So they're easily going to be hundreds, it's not thousands, certainly going forward over the years that are going to be affected by the decision. Is it a badly written law? Is that the reason why it comes

up so often? That's probably what the court would say is part of it, and it's been amended at various points over the years, but it's not, I think, as the lawyers and judges would say, a model of clarity. And so that's part of what the issue has been, but it's not just that. Part of it is the way that the court has interpreted the law over the years has then lent itself to more issues arising and

then how to interpret it going forward. And so it's really just had kind of a long and strange life that partly because of how it was written, partly because of how the court has interpreted that's lent itself to sprouting additional litigation. A very judicious answer, thanks Jordan's that's

Bloomberg Law reporter Jordan Ruben. According to the Bureau of Prisons, Wooden is currently serving a sentence of about sixteen years in a low security facility in Arkansas with a current release date in Without the three strikes enhancement, his recommended sentence would have been about two years instead of nearly sixteen. His attorney, Alan Kadem says Wooden has already served much more than two years, and that once he's resentenced, we expect him to be sent back home to his family.

It's the latest twist in a legal saga that began after Trump supporters accused Smartmatic and Dominion voting systems of being at the center of a vast international conspiracy to rig the election again former President Trump, and that conspiracy theory was echoed on air at Fox News. Fox News was not able to dodge at two point seven billion dollar defamation lawsuit over false claims the network aired about

smart Maddox role in the election. Justice David Cohen says, quote, at a minimum, Fox News turned a blind eye to a litany of outrageous claims about plaintiffs, unprecedented in the history of American elections, so inherently improbable that it evinced a reckless disregard for the truth. The claims against host Maria Barter Romo and lew Dobbs can also go forward, but the judge dismissed claims against Janine Pierro, Rudy Giuliani, and Sidney Powell. Former Trump campaign lawyer joining me is

Andrew Kuppelman, a professor of law, at Northwestern University. Tell us a little about Smart Maddox claims. Here, Smart Madock is essentially claiming that defendants were reckless in making baseless claims but damaged Smart Maddox business. The reason why we have defamation law is because you can really hurt somebody by spreading falsehoods about the quality of their business. So for hundreds of years at common law, the law has

protected people from that kind of reckless defamation. And that's what happened here. The defendants, at least allegedly didn't care at all what was true. They just wanted advantage by using any basis for claiming that Trump had been preudulently elected, and that included making entirely baseless claims about the voting machines. So tell us what the standard is when you're suing

a media organization like Fox News. When a public figure sue was a media organization for falsehoods about that public figure, The Supreme Court has said that the person complaining that they were defamed has to show that the news organization was or the speaker was. In this because in this case, the speaker wasn't a news organization. That the speaker uttered the falsehood with reckless disregard of whether the speech was

true or false. So here the voting machine companies had to prove that the speakers were reckless they did not care who they hurt. So a typical example of recklessness is somebody is speeding down a street where children are playing. It doesn't care whether he hurts the children or not. Doesn't mean to hurt the children. He's just having fun driving, and he is indifferent to who he heard. That's what you've got to prove in defamation claim brought by a

public figure. That's a very high standard. We saw in the Sarah peal And trial that the jury did not find for her on using that standard. Mhmm. But here, at least as alleged, the defendants said extremely damaging things about the manufacturers of the voting machines with no evidence at all, no idea of whether it was true or false. So again, as alleged, the allegation is that they were entirely reckless, didn't care whether it was true or not.

This was not an honest mistake, this was utter indifference as to whether what they were saying was true or not. In court filings, Fox argued that it repeatedly asked the high profile Trump supporters for proof substantiating their accusations about smart Matic, and they failed to produce any. Does that cut four or against Fox? Well? Uh, they've got an obligation not to be reckless if they take their anchor's words. The question is does a reasonable person believe what the

anchors are telling them? If I'm thinking about speeding down a street where children are playing, and the person who is sitting next to me in the car tells me, oh, those children are immortal gods. Even if you drive into them at high speed, they won't be heard a bit. Uh, I'm not entitled to believe that. Fox News Media said in a statement that it plans to appeal as well as file suit against Smartmatic under New York's anti slap law, which bars the filing of cases intended to chill free speech.

Could there be a split verdict in this case a jury find the individual host libel but not Fox for example, or vice versa. With respect to each individual defendant, the plaintiff has to prove recklessness. It's entirely possible that some of the defendants and not others, are more demonstrably reckless. The plaintiff has got to prove that with respect to each individual defendant. There's also one point six billion dollar suit by dominion against Fox. Then a Delaware judge refused

to dismiss. Does the two refusals to dismiss tell you anything. It tells you that the allegations at least are enough to go to trial. The allegation is recklessness. There is some evidence to support it, and there is enough evidence that this can reasonably be put in front of a jury. If the plaintiffs had no evidence at all and no likelihood of producing any such evidence, then the drug judge would be obligated to dismiss. But there actually seems to

be substantial evidence. The Fox kept on broadcasting these allegations against the voting machine companies with no basis at all for believing that they were true. Dominion and Smart Manic could show broadcast after broadcast after broadcast where these allegations were made. They can show multiple broadcasts in which these false allegations were made. Fox can defend by showing that

it had some basis for thinking. So the case that the plaintiffs are going to make is that Fox had no basis at all for believing that these allegations were true, and to repeatedly broadcast such damaging allegations when you've got no reason to think that they are true probably rises to the standard of recklessness. So what are the Are there any long term implications if this lawsuit succeeds. Do you think it will stop people at Fox or at

other networks from making outrageous claims without a new proof. Well, this recklessness standard has been the law for more than fifty years, and news organizations are careful for the most

part about what they publish. News organizations routinely employ lawyers to look over stories that might get one sued, and the general rule within news offices is that if you've got enough of a basis for making sometimes extremely damaging allegations against particular public figures, then you go ahead and publish, but the lawyers check to make sure that there is some basis for thinking that what you are saying is true,

that you are not simply being reckless. I don't know what Fox's lawyers were doing while all of this was going on. There's been some talk, especially during the Palin trial, that the effort was to get the case to the Supreme Court because there are some justices on the Court who might want to revisit the Sullivan standard. Uh, that's possible, although the Palen case UH wasn't an appropriate vehicle to do that because the Sullivan standard is also New York law,

and Palen sued in New York. UH towart suit in New York is governed by the state law of New York, which the U. S. Supreme Court has no jurisdiction over. So the Palin case would not be an appropriate case for reversing the standard of New York Times versus Sullivan because there are independent and adequate grounds under state law for the result. Even if the Palin case went up to the Supreme Court and the Supreme Court wanted to discard Sullivan, Palin would still lose under state law on

that basis. I contindently predict that the Supreme Court will not take her case. Is the Sullivan standard in danger? Is it too favorable to media organizations as I referred to earlier To Supreme Court Justices Clarence Thomas and Neil Gorsch call for the Court to reconsider New York Times v. Sullivan in descents last July. So, what's your opinion of the Sullivan standard. I think that the Sullivan standard has

been good for truthful reporting of news. Before the Sullivan standard, uh, if I broadcast something that was false, even if I was reasonable and a reasonable basis for thinking that it was true, if it turned out to be false, I could still be sued and I was liable regardless of my state of mind. That had a real chilling effect on truthful news reporting. So the court was right to adopt the Sullivan standard because a pre existing defamation law just didn't place any weight at all on the public's

interest in knowing the news. The earlier defamation standard was crafted in Renaissance England, when there was a monarchy, there was no democracy for the press to serve, and the public interest in news just didn't figure at all in the court's crafting of the law. The law has to be different in a democracy. In a democracy, it has to be okay to say derogatory things about public officials.

Thanks for being on the show. That's Professor Andrew Koppelman of Northwestern Law School, and that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast, Slash Law, and remember to tune into The Bloomberg Law Show every week night at ten p m. Wall Street Time. I'm June Grossow, and you're listening to Bloomberg