This is Bloomberg Law with June Brusso from Bloomberg Radio. New York City Mayor Bill de Blasio can bar thousands of unvaccinated teachers and other public school workers from their jobs after the Second Circuit Court of Appeals lifted a
temporary injunction preventing such a move. There is going to be a full procedure UH in the course of this week, and we're very, very confident that the city part education is going to prevail because we're trying to protect kids, We're trying to protect families, were trying to protect working people in our schools. We've been in court with this very same set information, very same argument at both the state and the federal level. We've won previously. We expect
to win again and quickly. The Appellate Court gave no reason for the decision on Monday, other than saying the injunction that had been entered last Friday was for administrative purposes. This is all about the preliminary injunction. The underlying legal and constitutional challenges to the city policy are yet to be heard. The practical effect that the largest school district in the country may now insist that all school employees and contractors be vaccinated. The mandate will go into effect
on Friday at day's end. Joining me is Dorrit Reese, a law professor at you see Hastings College of Law who specializes in vaccine policy. Were you surprised at the second Circuit is allowing the vaccine mandate to go into effect? Not really. My reading of the initial decision was the Second Circuit was coming in with the view that they needed a little more time to consider this. But these
preliminary measures are unusual. Most of the time courts don't stay a measure well, gratification is going on, and the bark of them is pretty high, So I was not so. In this challenge, the public school teachers and aids claim the requirement for a vaccine violates their right to pursue their profession and discriminates against them. What's your take on that argument. Neither of those is a very good argument.
The first part the valid their professions. They're trying to make a constitutional argument that it goes against the constitutional rights. The problem they have run into it that the standards for public health measures that limit individual rights is historically the standard set in Jacobson versus Massachusetts from nine five,
and that's a very lenient center towards the policymakers. The policymakers can limit individual rights in the public health under it as long as the lives are reasonable, and teachers co vaccine mandates in the middle of a pandemic when many of the children can't be vaccimated, yet, it's probably going to be found in reasonable. The second argument, discrimination argument is even weaker, and here's why. First, unvaccinated workers
are not situated similarly to vaccinated workers. Discrimination means treating the like case differently, but unvaccinated teachers the gnostages similarly to vaccinated features. Unvaccinated features are at higher bits of getting combinating the vaccinating features, and it's higher is of completing it to the students, so they're not in the same category. And it's not any more discriminations than given tickets for jaywalking just to jaywalkers and not to people
who stand on the sidewalk. Second, even if their distinction wasn't as strong as it is, being an unvaccinated teature is not a protective category. Choosing not to vaccinate. It's not equivalent to being part of a racial groups, part of religious groups, et cetera. So that's Clay two isn't very strong. Is the most recent Supreme Court precedent that nineteen o five case that upheld in Massachusetts smallpox vaccination law. So we refer to Jacobson because it's been a help
and relied on in many cases. Sees, it's still the case that's often cited in discussions of public health. So at it's a really old case. The conclusions are echoed in a lot of more recent cases, so it's the latest case directly on points, but it has a very
strong progeny and a very strong history. Seat is there a difference when the vaccine mandate comes from the federal government as opposed to the state, your city, so federal versus locales there is a difference, but it's not in the sermon constitutional rights, the constitutional writers, students, and the different who applies to both state and face. However, the
Special Government has to face additions constraints. The sedial government is one of limps with power, and it can only act within the sermy powers, the main part to regulates public health life with the state. The special government can do some of it under its other powers, such as the parts who regulates inter state commerce. The parts to regulate interstate trouble, the power to add conditions when it
comes program. The federal government gives a lot of money to the state for variety of things, and when it gives money, it can do it with condition. So the secial government has limited parties to act in the public health, and you have to make sure any measority takes within those powers. The Supreme Court denied review of Indiana University's vaccine mandate for employees and students in the shadow docket, but we also saw COVID restrictions struck down when it
was due to religious reasons. Do you have any doubt that, let's say, if that case came to the Supreme Court now, would they hold in the same way. I am very sure that if the nineteen o five Jacobsen case came to the Supreme Court now they would just help the same way. As you correctly say, there's a number of things that go under this, some of them are more
complicated than others. First, Jacobson was eminently reasonable because it was a small poxman imposed in the middle of an outbreak against the very dangerous disease, and the function was moderate. It's fine, so has made it an eadicate in many ways to uphold you're correctly saying that there are different rubrics here. Jacobson was not addressed under religious freedom. Jakobson did not claim that he had religious objections to the vaccine.
He was worried that the vaccine was unsafe. Religious freedom wasn't at the time protected against the state, only against the federal government, but today it is protected. Today is protected against state actions, and the Supreme Court has been a leverage student on religious freedom that separate from the discipline's injury student. And right now it's unclear whether that rest would require a religious exemption from a chteine mandate
that also had a medical exemption. It's just unclear. I think a good reason to say no that you don't have to be a religious exemption from a vaccine mandate even if it has medical exemptions. First, because medical exemptions are part of the framework that creates the mandate. The goal of the mandate is to make sure that anyone who can be safety vascinated is the vascinated to increase
rates of extination enough to prevent outbreaks. Medical exemptions are part of that because they are apply to people who
cannot be safely back to me. Second, medical exemptions are probably contusionally necessary under and third there's good You need to think that mostly this exemputive excy are by people whose of the position of exciti is not religious, but most of them are instanced here, so requiring a religious exemption from a safety measure in a case to where we know there's going to be extensive abuse of the exemption by people whose reasons are not religions totally further
than the Supreme courtile though, but that's an assessment. We have to see what the Supreme Court will do with a perfect A three judge federal panel is set to consider whether to delay a vaccine mandate affecting healthcare work or statewide in New York. That doesn't provide an exemption for religious grounds. So you think that from what you just said that that will pass muster that vaccine mandate even though it doesn't provide a religious exemption. I think
it's unclear whether the fertile circuits will allow it. And the reason is that the Supreme Court you students created someone certainty. The Supreme Court basically provide us conflicting sources. On one hand, in a series of shadow doctor cases that we're not actually reason that didn't have the storic explanations. The Supreme Court said, we don't want you to put
in place measures of treats religious house of worships. Differently, on the other hand, in Cooken versus Study of Philadelphia case, where the court directly asked, do you have to give a religious exemption from a general law? A majority of the Supreme Court said, we're keeping the old law for now, the laws that says that you don't have to be a religious exemption from a generally applicable laws. But there was a very very strompt descent going the other way.
Not discent because everybody agree on the result in that case, but there was a very strong set of judges that would have liked to overturn that movie. So right now, where is the Supreme Court will go? If it's directly effects with the question here is a vaccine man, it doesn't give a religious sugestion is a little bit unclear and the second circuit to be acting to this and certainty could go either way. More and more workers are
applying for religious exemptions. For example, in l A, about a quarter of the police department is expected to seek religious exemptions from vaccine mandates. Just explain what a worker has to show in order to again a religious exemption. So there's two parts to the religious exemptions claim. One is it has to be religious and sweet has to be stence here for religious the specialities, Streten suggests a
three part sept. First, a religious is about fundamental a high level questions such as the meaning of life, things like that, So it has to address those kinds of high level ethical issues. Second, you can't just grab into one religious birth. Your religious objection has to be part of the comprehensive belief system. And Third, usually but not always, religious is a companied by external science and right maybe something you were, maybe something you do. Again, this is
not required. You can have very personal belief, but if you have those help What is sest Is trying to do is draw the line between things that are religious and things that are strongly help believe but not religious, without limiting religions to believe in a deity or multiple deities. So that's the test for ISAs it's religions. The second partion is since here and that's what think gets really hard, and that's one of the reasons by the way against
inquiring religious subsemption. The problem is that the test for sincereity does the person called the sinecure religious belief, not does the religion object to the excins. So you can't require a letter from ecourergy. You can't say if your relieving support bos so, for example, if you're a Catholic or a Jew, you don't have it will claim here. You can't say your beliefy irrational. We're not going to allow it because it's not about judging the rationality. That
makes it's really hard to police. And since we have good reasons to think that most of these people are opposing the vaccine not because of religiousisms, but because they've read online misinformation that scared them off the vaccine, we
can't expect extensive views of this. And that means that it's this exemption for our treats, which is why, as you said, some states are saying we won't give it any to them, and we know it's very vulnerable to abuse, and we'll have to see where the court stands in the with a vaccine mandate, when there's an option to get vaccinated or to take regular coronavirus tests, that seems to defeat the point of the mandate. Do you think
it still would require that there be that option. Mhm. So, first of all, whether it decreads the point of the man, that depends what the point of the man. That is. If you can get to a point where the tests are good enough that you can be reasonably sure the person probably doesn't have coronavirus, the testing might be a
reasonable alternative. And the reason we are seeing a lot of places of the testing is that it gives them out to people who have very strong feeling against the vaccine whilst putting in place something that makes refusing the vaccine harder. It's a reasonable option. I don't think course will require it, though, and that's because in some places testing is not a good enough for options. First, it's not clear that we have good enough testing to reliably
tell us who is inspecting who is not. Some people don't test positive until a little into their inspections, but they can be contagious before second vaccines and testing together, as in LAS Latter proscurity. And I think court will say this time of uncertainty, we will defer to the decision maker, and if the decision makers it doesn't want to allow testing options. They don't have to. They can
conclude reasonably that it's not a good enough options. Vaccine mandates are being challenging state courts and federal courts all across the country. Do you think that they're likely to survive the court challenges? I think, but sine Mandy will survive godly in the sense that mostly will be upheld. I express there will be losses on an individual basis, on refusing an individual religious extensions, or maybe on the
question of a religious freedom. But I expect the court to give employers, states, the federal government quite a bit of latitude in requiring but sin as long as so for the federal governments of the question, are they overstepping their parts? But other than that, I explained the course to give quite a bit of latitudes. Because judges live in this country as well, they see what's going on.
There are words as coven nights seems killed hundreds of thousands Americans in the last two years, and they're likely to understand why health authorities, why public health authorities and other officials are doing. Are reaching for mandates as a way to prove mandates aren't your ideal first option. I hoped we wouldn't be where we are, and I think a few of us are happy that we're still dealing
with coronavirus in plates. But when the diseases raising mandates are in some ways the least worst options are better than letting people die. Thanks for being on the Bloomberg Law Show. That's dort Rees, a professor at you See Hastings College of Law who specializes in vaccine policy. On October eighteenth, Robert Durst will be returning to the Los Angeles courtroom where a jury convicted him of the execution style murder of a close friend, to be sentenced for decades.
Mysteries surrounded the millionaire real estate science who was suspected not only of the murder of his friend, but also in the disappearance of his first wife, and was actually tried and acquitted of the shooting of his next door neighbor. But there's no mystery about his sentence. The seventy eight year old Durst must be sentenced to life in prison without the possibility of parole, joining me as former federal
prosecutor Robert Mint's a partner McCarter and English. The jury deliberated only about seven and a half hours in a trial where the prosecution presented eighty witnesses and introduced nearly three hundred exhibits. They also came back with special circumstances
on a twenty year old murder. How surprising is that, Well, it was an incredibly lengthy trial, and there were quite a few witnesses and a lot of evidence that was presented over the course of the eleven week presentation by the prosecution, and that was of course followed by weeks of testimony by Mr Durst himself. But at the end of the day, prosecutors used Durst's own words against him, and in many ways he was the best witness for the prosecution because they had all of this recorded testimony
from him. They had his own statements made to prosecutors when he was arrested, They had the recordings they had made while he was in jail, and perhaps most damning, they had his recorded testimony that he made an HBO documentary where he made statements that prosecutors argued were essentially a confession to this crime. Was it a mistake to put him on the stand. He testified to chopping up the body of a Texas neighbor he killed in self defense.
To abandoning the body of his best friend after discovering her dead, and he admitted that he would lie to get out of trouble, and that he had lied during sworn testimony in the past. Why put him on the stand. That's a great question, and one of the biggest challenges that defense lawyer's face in a criminal trial is whether or not to put their client on the stand to testify in their own defense. Generally, when defendants testify at their own trial, it does not end well for them.
It gives prosecutors a chance to essentially retry their case and to cross examine the defendant with all of the evidence that prosecutors had already presented as part of their case in chief. In this case, Mr Durst had testified in his own defense in the trial in Galvesta where he essentially beat back the charges of murdering a man who was his roommate in Texas, and ultimately it was the decision of Mr Durst to testify in his own
defense in this trial. We don't really know whether that was over the objections of his own lawyers or not. But this is a case where you had a witness who was compelled to testify. He's obviously someone who longed for the spotlight, and it seemed out of character for him to sit by and not try to convince jurors that he, in fact had not killed Susan Burman. Bob. This was a twenty year old murder, and how often are prosecutors able to bring cases in murder trials that
happened decades ago. Is this unusual? It's a highly unusual case because not only did prosecutors have to prove that Mr Durst was the murderer of Susan Burman, but they essentially also had to try to prove that he had killed his first wife, Katie McCormick, because the theory of the prostitution's case was that Susan Burman was killed because she had damning evidence against him about the fact that
he had killed his first wife. So prosecutors really had to lay out the proof that he was involved and responsible for both murders, not only the murder of Susan Berman, which occurred in two thousand, but also the murder of his wife, a case in which he had never been charged and who disappeared in So this was a very old case going back decades and decades, and were it not for the unusual circumstances where Mr Durst had gone on camera and made state and during that HBO documentary,
it's unlikely that he ever would have been charged and convicted for Susan Burman's death. Durst was not in the courtroom when the jury's verdict was read, and much was made of it at the time. Does a defendant have to be in the courtroom? Usually the defendant is in the courtroom unless they are acting in a way that's disruptive to the trial. But here, because of the very unusual COVID protocols, we had a situation where people were
spread out throughout the courtroom. Very unusual steps were taken, and in this case Mr Durst had been exposed to somebody who had COVID and therefore was not president in the courtroom when the verdict was read. Durst is appealing on several grounds. One ground is that there was insufficient evidence to convict him because no murder weapon was ever recovered and there was no forensic evidence to prove that he killed his wife or Burman. Does that prove insufficient,
ever sense to convict well. That will be up for an appeals court to decide. But we did have a case here where there was no direct forensic evidence tying him to the murders, but there was other evidence, including not only the testimony of Durst himself, but the testimony
of other witnesses for the prosecution. For example, there was a long time friend of both Mr Durst and miss Burman who testified that Mr Durst had told him it was her or me, referring to Burman, I had no choice, And prosecutors used that in their summation, saying that those nine words summed up the entire case that at that point Mr Durst felt that he had no choice but to kill Susan Burman, who was about to talk to police about the killing of his wife back in two
But prosecutors don't need forensic evidence or a murder weapon to convict, do they. They could have a holy circumstantial case and get a conviction. No, that's absolutely right, And there are cases, of course, where people are convicted of asides where nobody is found, where there's no forensic evidence
that ties them directly to the crime. For example, there's no murder weapons found, there's no DNA evidence that ties them, but prosecutors can still build a case circumstantially through other evidence, through testimony of witnesses, and at the end of the day, the standard that an appeals court will look at is whether or not a reasonable jury could have convicted him based on the evidence that was presented at the trial.
This was a trial that was held during COVID and another one of the reasons for appeal is his attorneys say jurist was prevented from receiving a fair trial because of the lengthy delay of the proceedings. His lawyers had called the fourteen month delay the longest of German in US history featuring the same jury, and argued that the jurors could have forgotten information from the start of the trial, discussed the case with others, or watch television programs about
the case. Is that valid the judge making the decision that after fourteen months he was going to go ahead with the same jury, Well, it's certainly an issue that you could expect the defense lawyers to raise, because any time you have an unusual circumstance, something that has not been typically seen in a criminal trial, defense lawyers will always argue that their client has been prejudiced by that.
So in this case, you do have this very unusual circumstance where the trial was started and then it was paused for an extended period of time due to COVID, and they're going to argue that their client didn't get a fair trial because of that. What the appeals court is going to do is look at the entire transcript of the trial and determine whether or not the defend it was in fact prejudice, and even if he was, whether it was so severe that it would have changed
the outcome of the trial. So these are the type of issues that you expect to be raised on appeal. These are the type of issues that I think, unless they're really extraordinary, unless they can point to a specific prejudice that resulted from the delay, I think it's unlikely to sway the Heels Court and unlikely that it will result in a new trial. From Mr Durst. Another point of appeals that the judge made an error in allowing
jurors to see that HBO documentary. The jinks that's pretty unusual to allow them to see a documentary, isn't it. Again another very unusual aspect of this case, and again an issue that defense lawyers will make a big deal about and try to suggest that their client was prejudiced
by allowing jurists to sit through that documentary. It is highly unusual, but it's also highly unusual for the defendant to have made some of the statements that he made during that documentary that prosecutors say amounted essentially to a
confession to those crimes. This point interested me. The judge excluded evidence of possible sightings of Kathy Durst in New York City while Mr Durst's first wife went missing back in nine two, and although prosecutors and legs during the trials he was responsible for her murder, he was never charged with that crime. So one of the strategies the defense was using here was to try to argue that,
in fact, he may not have even been dead. Her body was never found, a murder weapon was never found, and the judge in this case so found the evidence to be so attenuated that you did not let it go in front of the jury. Whether or not ultimately that amounts to reversible error will be something for the appeals court to decide. It really would depend on, in my view, how credible that evidence was about a Cathy
Durst sighting. Obviously, she had been declared legally dead many years ago, and there was very little evidence to suggest that she was still alive. But whether or not it is something that should have been placed before the jury so they could consider the possibility that she's missing all these years and not actually dead is something that the appeals court will have to look at and decide whether that evidence was credible enough that it should have gone
to jurors for their consideration. As you mentioned, Durst was never charged in connection with his wife's disappearance, despite investigations by the New York Police Department, the State Police, the Westchester County District Attorney's office. After the verdict was announced, the family of Kathy Durst issued a statement calling on prosecutors to pursue a case in her death as well.
Would that be an even more difficult case to bring at this point, It would be an even more difficult case because she went missing back in and at this point, based upon this conviction and assuming it's not overturned, Mr Durst will get a sentence of life without parole, So prosecutors would have to look at that decide whether or not there was a possibility of actually getting a conviction in the case that was that old, and also whether or not it warranted them spending the time and the money,
on the resources to pursue a criminal case in which the defendant was already serving life without parole. Bob, before let you go, tell me what you think the defense is strategy is here and why it failed. The strategy of the defense here was to try to portray their client as a hapless, socially awkward man who just makes poor decisions and it was in the wrong place at the wrong time. He ran twice rather than contacting the police, and they tried to pain him a somewhat of the
victim of ambitious prosecutors and deceptive filmmakers. But ultimately the jury seemed to reject that characterization of Mr Durst. He admitted to prosecutors that he lied, and he admitted, and perhaps one of the highest points of drama during the trial, that not only had he lied in the past, but he would lie today if he had to. He was asked by the prosecutor did you kill Susan Berman, and
he answered that he didn't. The prosecutor then filed up and said, but if you did, you would lie about it, correct, to which Mr Durst replied correct. That was essentially the completion of the self destruction of Mr Durst on the stand.
He really stealed his own fate first by talking to the HBO documentary makers and putting himself back in the spotlight, and then making that bathroom confession according to prosecutors, where he walked off of cameras, went into the bathroom, not knowing that his mic was still on, unaware that he's being recorded, and said, what the hell did I do? Killed them all? Of course, prosecutors used that as a
confession by Mr Durst to the crying. The defense tried to argue that those statements were taken out of context and didn't mean what they appeared to mean, but ultimately that was a very difficult statement for the defense have to deal with, and ultimately the jury simply did not find him credible. 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 lampont has. You can find them on Apple Podcasts, Spotify and at www dot Bloomberg dot com, Slash podcast, Slash I'm Jo Basso, and you're listening to bloomber