Hitman's Incriminating Confession

One of his co defendants had confessed to the crime, and prosecutors used that confession at trial, with Semiah's name redacted and replaced by the words someone and the other person. Semiah argued that violated his right to confront witnesses testifying against him, but the Conservative justices, including Chief Justice John Roberts,

appeared skeptical about that. Maybe they will wonder, Weld, why are they saying another person if it was this guy, be because it's somebody else that they don't, you know, haven't brought to trial. The liberal justice is, like Elena Kagan, seem more accepting of Samea's arguments. It's just as good to say the woman and I went out and robbed Phil as it is to say Mary, the person sitting on my left went out and robbed Bill in that

in that case, right, it does the same thing. It identifies the person joining me as former federal prosecutor George Newhouse of Richard's Carrington. George tell us about the issue here. The legal issue in this case is the admissibility of a co conspirator statement that criminates both the defendant who made the statement and his co conspirator. In this case dammiab.

When they go to trial against two individuals and they try to offer this statement against the non testifying defendant, it's not admissible because it's a hearsay statement of not being offered against the person who made it, mister Stillwell, being offered against codefendant. So the law is clear and has always been clear, that that statement is not admissible. And in the original case Bruton Bruton objected and the judge said, that's fine. I will instruct the jury that

it cannot be used against mister Bruton. It's only offered against the codefendant who made the admission. And of course, in Bruton Bruton objective, stead, your honor, the jury can hardly disregard that evidence, even though they're instructed to do so. So the Supreme Court jaid, that's right. There are limited powers of the jury to disregard highly probitive, highly incriminating evidence.

So that's now called Bruton error. And when the government wants to introduce that statement, they either have to separate the trial, have a separate trial for that defendant, or they have to not offer that statement against the defendant. So in this case, a very similar situation, two people committed the crime. This was a shooting in the Philippines, murdered an individual. There were two people in the car, and still Well confessed, and they of course offered that

confession against both individuals. But what they did was they redacted, they cleaned up the confession for the person who testified. The law enforcement officers said, well Stillwell admitted to the crime, and he admitted that he was in the car with another person not identified. And of course the issue in this case is the defendant Sammy us saying, really, the jury will immediately know who that other person is by

the context of the evidence presented enhanced. It's a brutal error because you're offering an out of corpse statement against me. And it's what we call a confrontation clause issue. That the six Adenment allows you the right to confront and proper examine your accusers. You can't do it when it's

an out of court statement. So the issue before the court is is this fall within the purview of Bruton or is it an acceptable correction that doesn't harm the defendant's chance and doesn't violate the sixth Amendment right of confrontations. That will be the issue of Supreme Court decide. So it seemed like some of the conservative justices, like the Chief Justice, said, well, you know, you can't really tell

and it is not necessarily referring to the defendant. But then you had some of the liberal justices like Elina Kagan saying, come on, obviously you're going to know who it is the person sitting next to you that explains it. It makes sense. But the conservative justices who think that a reference to another person unnamed will not immediately lead the fury to the defendant is ridiculous in that case. From the context there are only two people in the car.

They're going to figure out who was in the car, and they're going to connect the dots, and then they will disregard the instruction that the evidence is only offered against mister Stillwell, the defendant who made the statement. So it really is a reality test, and I predict that

the court will find that this is brutal error. You know, the choice the real prosecutors have to make is do they want to try the two together sometimes they can sever the cases, or do you not want to offer the confession or you need to change the confession so there isn't a reference to the other person in the car in this case, Sammy, of the person that they

wound up convicting was the shoot her. So the question is context and interpretation, and this is an interesting issue, but my prediction is that they will find that it's the brutent error should be justice. Amy Coney, Barrett and some of the other conservatives seemed concerned about having to sever the trials. So it seems to me at the end of the day, it boils down to you just can't try two defendants together if you have a non

testifying defendant and confession. So they seem rather reluctant about severing trials. That's a very good point, and that's a traditional reaction of the courts. They want to optimize judicial economy. They want to have one trial rather than force the court to do true trials. And most trial judges are the same. They're very reluctant to grant a severance motion,

which really would be the motion you make. But in the face of that, you still have to say, the constitutional rights of the defendant against whom this statement is really affect to be going to cause prejudice, even though the jury is instructed not to fold it against him. I think his paramount because it's his constitutional rights. And frankly, the government chas to make a choice. They can either have two trials or they can not offer that statement

in the evidence. Either way, the government says will harm, and that's what the court likes to do. I have to balance judicial economy against the rights of the defendant. Pennsylvania led thirty two states in an amicuous brief urging the court to uphold the use of the confession, noting that thousands of trials in the past ten years have involved multiple defendants and confessions, and a ruling for sameia would lead to retrials and cause prosecutors to try defendants separately.

What's your take on that argument? Hard to know how much credibility to attach to that argument, because Obviously it does occur, and obviously it imposes a cost limitation on prosecutors, but I don't really think that it's that substantial. This Bruton rule and so called Bruton air has been around a long time, and frankly, most judges don't allow the

confession and sanitizing in the way that they did. By referring to quote the other person when the context makes it clear who that is, is simply a violation of that person's constitutional rights in my view. Justice Corsage brought up something that I thought was interesting. He said that in other instances we do give juries limiting instructions such as only consider this non mirandized confession for impeachment purposes. So basically, why can't we trust the jury in this

case with a codefendants confession. It's an interesting argument, and it's one of the problems with having justices on the Supreme Court who are not had never been trial lawyers or trial judges, because people who have corbate experience know perfectly well that jurors have a hard time following those instructions when they hear this incredibly damning evidence and they

figure out on the content who it refers to. You can tell the jurors whatever you want, but the practicality is it causes prejudice to that person and deprives them. One would argue a constitutional right, which is to confront your accuses. It's the confrontational pause issue and the jury instructions that was what was the holding of bruten The curative instructions don't always work, and that's reality, George. Does this come up often where you have a co defendants

confession that implicates another defendant introduced at trial? Very frequently because now we like to have multiple defendant cases, and it's very common that one or more the defendants will confess, and when they confess, they tell all and they identify all the participants. That evidence is highly incriminating with respect of a non testifying defendant. So it's a common situation.

There are various solutions in some cases of judge will hold one trial, but in panel two juries and the one juring will hear that tainted confession and the other jury will not. So there are measures that the courts can take that I think strikes the right balance between the defendant constitutional rights and judicial efficiency. I appreciate the insights of an experienced trial lawyer George, Thanks so much.

That's former federal prosecutor George Newhouse of Richard's Carrington. A landmark trial is kicking off in Minnesota the first time one of the thousands of cases against eat cigarette maker Jewel is going to play out in a courtroom. Minnesota accuses Jewel and Altria of hooking a generation of young people on their products by deception and slick advertising, and the state wants the companies to pay up for the public costs of addressing an uptick in youth vaping and smoking.

Joining me is healthcare attorney Harry Nelson of Nelson Hardeman Harry. Minnesota is using the theory of public nuisance, a theory that was used against the tobacco industry in the nineteen nineties. Tell us about it. Yeah, So a public nuisance legal theory. It was a series that actually grew out of cases where there had been some kind of public harm like damage to you know, water sources and from pollution and

things like that. And the idea was that essentially you could hold private parties responsible for the social costs, the

costs that they impost on society. So we've been seeing through the opioid cases of the last few years, they attempt to extend that theory against drug makers and pharmacies that allowed easy access, and the state of Minnesota is trying to do the same thing here, essentially to say that Jools, you know, the eas cigarette company that Altria is the biggest of the tobacco companies, essentially caused great harm to the public by encouraging the sale of the

e cigarette flavors to teenagers and to underage consumers. Do you think that the public Nuisan's theory is a good fit for what it's accusing Jewelove. I think it is a little bit of a stretch. Personally, I think that this issue of underage consumers smoking or engaging in unhealthy behaviors is a more complicated problem. It's not a clean fit to me that jewel was the entire problem. I think there's a broader question about our consumer culture that

made this product so closely popular with kids. So, while I do think that the marketing practices were reprehensible, I'm not sure that it's a clear line to say that they were the cause of all these problems. I also think it's unclear we won't know for years what the long term health effects will be of kids starting to smoke in eighth grade, and certainly there's been an issue of teenagers of older teenagers, tenth graders eleventh graders smoking

that preday e cigarettes. Minnesota says in papers that in the fourteen years between two and twenty fourteen Minnesota high schoolers smoking at least one cigarette in the last thirty days dropped from thirty two point four percent down to ten point six percent. Six years later, nineteen point three percent of high schoolers reported having vaped at least once in the last thirty days. Does that make their case about public health or do they need to do much more?

I think that's a helpful fact to them. I just don't know the whole story. I think the reality is like vaping in general has become a more socially acceptable and more popular alternative too smoking. So even as we've seen a decline in general rates of cigarette smoking, you know with greater awareness that vaping is a slightly healthier choice of an overall very unhealthy activity. You know it's increased,

So I think it's helpful. I just don't know. I don't think it's a clam dunk Jule and Altria are trying to shift the blame to the state of Minnesota. Minnesota got billions of dollars from tobacco settlements over the last decade, but spent less than one percent on prevention efforts, instead using the funds to bankroll unrelated products like the Minnesota Vikings football stadium. This is a really interesting argument.

If you go back to nineteen ninety eight, the various states one something like two hundred and five two hundred and six billion dollars. I think the state of Minnesota alone got over six billion dollars in the tobacco settlements with all the big tobacco companies, including the company that

now Altria right it used to be Philip Morris. And so there was like enormous opportunity for not only Minnesota, but for all of the states to use that money to really create better public health programs, better education programs to reduce smoking and educate people about the dangers of smoking, and intervene in trends like this. And I think that Jewel and Altria have a good taste to make that not only Minnesota, but literally every state in the country

basically wasted that opportunity. When we look at what they did with the money. They mostly plugged holes and stay budgets and just considered it's sort of a flush fund to be used whenever there was a financial needs. It's hard to find any examples in Minnesota. There's no exception of a state that really used the money comprehensively for effective public health related to the danger of smoking. Do Altria and Jewel have the same defense or are they

pointing fingers. Jewel is the main target here to fuel Labs is the company that developed this and marketed this, and they are a victim of their own success with all of the flavors that they came out with, mango and other things that really appeals to kids. Altria has the misfortune of having been a major investor, I think something like twelve to thirteen billion dollar investment in Jewel. But it's not to me at all clear why Altria

is sitting side by side defending this case with Jewel. Frankly, it looks like they are there because they are such a big player in the overall tobacco industry and not because they were so singularly attached to this product. In fact, Altria has completely divested itself of its position and Jewel,

which I think was never more than a small minority percentage. Ironically, Altria is actually invested in a competing product, and Joy, which is competing with Jewels, and so I'm not clear if their appearance here is more about optics and having you know, the biggest tobacco company in the country so much as related to their actual activity in the state of Minnesota related to eastigs. Also for the deep pocket, yeah,

no questions. As a parent of children, I share the concern about the effective, dangerously effective marketing of East cigarettes. But it does seem that Altria is at the table mostly not only for their size and disability, but also for the potential resources that they can add to the pool of funds. So I agree with your comment about them being a deep pocket here. As far as if the jury thinks the state has some responsibility here, is

this a case where the jury can allocate damages. Yeah, absolutely, the jury does have the ability to attribute comparative amounts and to assess responsibilities. So yeah, it's a tricky case for Altria because it obviously the goal is to show that this is a bigger, more complex problem that isn't specifically tied to this, but also to try to minimize its share of any damages that are awarded. So what's

the question the jury will have to answer. I mean, the question is really whether Jewel engaged in deceptive marketing

practices that targeted Minnesota youth. And so that's really the claim that's being made, essentially, that there was some kind of fraudulent practice, you know, that there was actually intention to lull kids into taking up vaping in the marketing that they use, rather than this being a case of kids being marketing you know that was intended for adults, that in fact, the entire strategy of Jewel was to hook a hold new generation of young kids on vaping.

Jewel has faced thousands of lawsuits across the nation, but most have settled, and it said that Minnesota had rejected settlement offers similar to those reached with other states, which provided quote hundreds of millions of dollars to further combat underage use and developed cessation programs in those states. So is this for the good of Minnesota or is this, you know, for making a name and making a statement about these products. I'm just trying to figure out why

they wouldn't settle. Yeah, it definitely is an aggressive strategy here on the part of the state of Minnesota. It seems interesting that the state Attorney General, Keith Ellison is

actually taking the lead in trying this case. He's certainly someone who has a colorful political history nationally, and I do think there's certainly a question of whether there's some grandstanding, you know, whether it's to create a name for him, or just to make a statement by taking such an aggressive position on this case rather than following the path

of other states and pursuing a quicker settlement. The State of Minnesota hasn't set a number for damages, but Allison said that it could be in the ballpark with Minnesota's landmarks seven point one billion dollars settlement with the tobacco industry in nineteen ninety eight. But wasn't that a bigger case the case with the tobacco industry and didn't go

back decades. It's really hard to imagine how the problem of jewel could be taken as equivalent as the nineteen ninety eight tobacco settlement, which was really addressing decades and decades of actually deceptive marketing where the tobacco industry knew how dangerous smoking was to American Health and clearly did everything it could to block that information from coming out and to keep pushing a product that it knew was deadly. So the conduct here happened in a much shorter period

of time. I don't think Jewel even entered the market until twenty sixteen, and I think the main period we're focusing on is like twenty sixteen to twenty nineteen. So it seems like this should be ultimately a drop in the bucket compared to the broader tobacco settlement. And again, it does to me raise questions why it's turney General Ellison is taking such an aggressive position here. Not to say this this isn't a problem, but to suggest that it's on par with the whole tobacco crisis seems a

bit much. If the state of Minnesota did win here, would it help other states to get leverage to reach settlements? I mean, how would it affect states outside of Minnesota

or you know, the general population outside of Minnesota. I mean, I think if a jury is receptive and gives Minnesota give Journey General Ellison a multibillion dollars or even a billion dollars settlement here, I think it will embolden other states, and it will concern Jewels and potentially Altria and sort of increase the numbers that are being paid out, which are already significant and in the hundreds of millions dollars.

So I do think that this case in a sense will either strengthen or weaken the assessments on both sides of what this case is worse and what this harm is worse than what it's going to take to settle these cases. So there is exposure here. If Minnesota wins this case, there's going to be more states that are willing to be more aggressive and push for more, which is going to be obviously bad for Jewel and Altria. And if Minnesota loses the case, will Jewel in Altria

be hesitant to settle these cases? Again? To me, it's more like I think of it a little bit like a stock, right, So if Minnesota loses this case, then the value of the claims that other states and jurisdictions could make against Jewel against Altria will be a little bit lower. And Jewels already shown a desire to settle

these cases. I just think it may be slightly more aggressive and settle for a little bit less, But at the end of the day, it seems to me that these companies have set aside huge reserves, you know, to pay off planes here, not because they agree that there's any deceptive marketing, but simply because it's not a popular position to be defending marketing that clearly impacted kids and drove more kids to vaping. And these companies just need to do what they can to get rid of these

cases as efficiently as they can. So I think this case is going to be significant one way or the other. It's going to make these cases around the country a little bit more valuable or a little bit less valuable. Critics of the public nuisance theory say that it allows executive officers like state attorneys general to improperly step in and replace the role of administrative agencies and lawmakers, which should be the ones regulating the industry. Do you agree

with that or disagree? I mean, I'm not a fan of the expansion of public nuisance theory. I think that it played a very valuable role in America when it came to some of the terrible environmental harms that American industry imposed on different parts of the country where we saw long term, real environmental costs that were imposed, you know, when toxins were spread in particular parts of the country.

I think these kind of social behavior oriented public nuisance cases, as in the case of opioids and here, are really questionable. You can see why it's very exciting to states and two executive leaders. But I agree that the questions of the long term harm and long term responsibility are probably going to be addressed more accurately and with a little bit less passion and uncertainty in other places than putting

them before juries. So I agree with that criticism. The trials expected to last three weeks, so we'll find out just how the public nusance theory works here. You know, this case makes me wonder what's the next issue that we're going to see where Americans engaging in dangerous, unhealthy behavior. It's going to lead to a public nusance theory. I'm still waiting for the sugar industry, you know, for the first public nuisance case food. I don't know where it's

going to be. But I think this kind of reflects the trend in American society where, you know, on the one they had this good to In my opinion, that we're thinking about where the dangers two consumers are, you know. On the other hand, it's not always easy to get exactly who's to blame, Thanks Harry. That's healthcare attorney Harry Nelson of Nelson Hardeman Madison Square Garden Entertainment can band lawyers suing the company from attending concerts and theatrical performances

at its venues, even if they have valid tickets. That's according to a New York Appeals Court ruling. James Dolan, chairman of MSG, admitted that they use facial recognition technology to prevent lawyers suing them from attending events, and explained why on Good Day New York in January. But look at it this way, right, if you own the bakery or a restaurant, right, and you know someone comes in and buys bread from you, and then the next day

they serve you with a lawsuit because they hated your bread. Right, they said something happened to them with a center. Then the next day they show up at your bakery again. I'd like to buy some more bread, right, would you sell them the bread? The court did say MSG is liable to pay five hundred dollars every time it refuses access to a ticket holder joining me as sid Rao, a partner at Romano Law. The appellate Court reversed an injunction against MSG that a judge had issued. Tell us

about that injunction. There was an injunction granted to the plaintiffs, but it was extremely narrow. So the court's injunction did not prohibit Madison Square Garden, for example, from revoking tickets. It didn't prohibit Madison Square Garden from refusing to sell tickets to lawyers or law firms involved in litigations against the arena or against any of their assiliated parties. The only thing the injunction prevented was that the arena could not turn people away at the time of the event

or a reasonable time before who had valid tickets. Let's say I'm the lead plaintiff, I'm partner at the firm Larry Hutcher, and I have a ticket, and I go to MSG on the day of the event and I present it. MSG is then joined from turning me away. But that's it. Tell us why I knew your Kapel's Court overturned the judges preliminary injunction. Ultimately, the issue that the decision turned on the appeals decision, and the reason why the appellate Court vacated the injunction was really just

a careful statutory construction exercise. So Civil rights Law section forty B was the basis for the lower court's injunction, and that is the statue that prohibits venues from turning away holders of valid tickets essentially at the door. The problem for the plaintiffs for is that the next section of the law, section forty one, prescribes a remedy for violation, and it's a financial remedy and starting at one hundred

dollars in going to five hundred dollars. Now, the argument in the lower court did address this, you know, the question really is is that the sole remedy, and the lower court was persuaded that even if the statute prescribes a remedy, if there was a chance of reparable harm, the court still had power to intervene because of the possibility of reparable harm. That's where the appellate Court differed

in its judgment. And actually in many other respects, the Appellate Court agrees and kept saying, you know, the motion court properly concluded, but in this one respect, the court said the only remedy for violation of the section of the civil rights law is the monetary remedy. That is, the court interpreted the legislature's decision to provide a remedy as excluding other potential remedies. And what the appellate court

was saying is you can't get an injunction. Your damages for that violation are limited to five hundred dollars, and because that's a monetary remedy, there's no injunctor really, So that's why they vacated the injunction, and that kind of leaves the plaintiffs I think, you know in alert here. You know, a five hundred dollar penalty is probably not strong enough disincentive for Madison Square Regarden to reevaluate its policy.

Attorney General Letitia James is investigating this. The office said in a letter to MSG that the ban and the company's use of facial recognition technology to force it, may violate anti discrimination laws and may dissuade lawyers from taking on cases such as sexual harassment or job discrimination claims against the company. Quote MSG, Entertainment cannot fight their legal battles in their own arenas, so she could bring a

case that's absolutely correct, and I love that quote. I think this is really getting to the heart of it right because we're talking about statutory language and parsing technicalities. But the real issue here is that the facial recognition

technology is fairly intrusive. There's this privacy and data concern around the facial recognition technology, especially in an era where there's technology available to parse large amounts of data, and then there's a public policy concerned with what we think the real purposes behind Madison Square Gardens policy is to disincentivize litigation or maybe to sort of tunitively act towards lawyers who have the huts by issue, and that really

is against public policy. Any time you're dealing with system that uses discretion, and we are here Arena has discretion to turn people away, there's a possibility of discrimination. I think that that's a very legitimate concern that the Attorney General topic is raising, which is you are creating policies that enable people to exercise a fairly large amount of discretion to turn patrons away. What's to say that that policy, which now applies to lawyers won't apply to some other

group in the future. Thanks sid that's sid Rao of Romano Law. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law 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 pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg