This is Bloomberg Law with June Brusso from Bloomberg Radio.
I'm gonna shake up the bag, draw the lottery tickets, and you'll be called up accordingly. We're gonna line you up that's right where this gentleman is standing, and we'll bring you into the building. There was a lottery to get the hottest ticket in town entry to the Los Angeles Courthouse for the Menendez brothers' first court appearance in decades. People lined up more than five hours before the hearing to get one of the coveted sixteen seats available to the public.
Okay, last four numbers of six nine three two.
Eric and Lyle Menendez have been in prison since nineteen eighty nine, sentenced to life without parole for the murders of their parents. The case captivated the country in the nineteen nineties and is doing so once again thanks to the recent releases of the Netflix dram Up Monsters and a documentary Lost the discovery of new evidence which could support Eric's claims that he was sexually abused by his father.
Technical problems prevented the brothers from appearing virtually from prison, and the hearing lasted only an hour because The judge said he needed time to review seventeen boxes of evidence and also wanted to give the newly elected DA time to weigh in on the case, but he did allow the brothers two elderly aunts to take the stand, and they made an impassioned plea for their nephews for lease.
Ninety three year old Joan Anderson vander Mullen Kiddymanendez. His sister, spoke outside the courthouse, Ben said.
She give situation, what can a kin do when.
I can't stand it?
A wrinkle in their case could be the election of the new La County District Attorney Nathan Hockman. He's not adopting Gascon's recommendation and told ABC News he wants to review the case and the law and decide for himself. There's a cloud over that credibility. Is it a just decision or was it just a political ploy? Joining me is Palm Beach County State Attorney Dave Ahrenberg Dave. The hearing yesterday was over a habeas corpus petition the Menendez
brothers filed in May of twenty twenty three. That's basically a request for the court to consider whether someone is being lawfully held tell us about the Menendez brothers Habeas corpus petition.
The Habeas corpus petition will focus on the new evidence that came out about sexual abuse from Menendez brother's father. Remember, there was evidence that the Menendez brother's father had molested a member of the boy band Menudo. And there's also a letter that actually written by them. Men and his brothers too irrelative about their sexual abuse. None of this was admitted into evidence in their second trial, which led
to a guilty verdict. So they rid of habeas corpuses, tried to get a court to consider this new evidence and to reverse the conviction or to set them free.
So this is separate and apart from the resentencing recommendation that the then LA District Attorney made last month. The judge here will take different factors into consideration.
Right, there are three channels the men and his brothers will pursue to get their release. One is the habeas corpus petition. So the number two would be the resentencing. That's what the former DA, the one who's outgoing, recommended. He wanted them to re sentence because of good behavior in prison to fifty years and then based on the parole rules at the time, they'd be out already, but it's still would have to go to the Parle Board.
So that's number two. And the third would be clemency by the governor, which would still involve the Parole Board, but Governor Gavin Newsom has not said web he would agree to it. So there are three ways that Menendez brothers could be released early, and at this point it's hard to say which one they will pursue the most aggressively.
They would probably have the best chance, I think inclemency from the governor because of all the attention that's been paid, because the new DA does not seem as keen on resentencing or letting them out early as the outgoing DA.
Yeah, the new DA said that he's going to review the extensive prison records, transcripts of the two trials, and voluminous exhibits, as well as consult with prosecutors, law enforcement, defense counsel, and victim family members. So at the very least, that sounds like a long process. Can he just reverse what the former DA recommended?
Yes, Because the DA that is outgoing Gasson was just recommending that there be a resentencing. It's not a binding decision, because that's up to the court to make the decision. The new DA can come in and say I reject that recommendation. We do not support an early release, we do not support a new trial, and so that would be very powerful because the court takes into account what
the DA's office thinks. And that's why I think perhaps of the three options habeas corpus petition are resentencing by way of the DA, and clemency, that it's clemency through the governor that may be the best route for the Menendez brothers to get out early.
The Governor apparently is taking a weight and see attitude. Here's what he said on his podcast.
Last week, the Menendez file, which is now a little thicker because we did deeper research in the last ten days. That's all on my desk. I think it's the right thing to do to hear from the new DA before I make any decisions.
That doesn't sound particularly promising either.
Well, he is giving the right amount of deference to the new DA, And if the new DA comes out and says I don't support resentencing, the Governor can still say I'm going to grant clemency. But it would really be big footing the new DA who was just elected by the people overwhelmingly to say, it doesn't matter what you think, I'm going to let him out through clemency.
So I think that Governors's doing the right thing in saying that no matter what I do, at least I owe the new DA and the voters who elected him the respect to hear what they say first.
I mean, the Menandez Brothers case wasn't really one of the election issues, was it.
Well, yeah, well you can't avoid it. It's a high profile case. So I think one of the reasons why the outgoing DA did what he did was that he knew he had an election around the corner. I mean, the timing would tell you that that had to be a consideration, right. He could have waited until after the election to announce the decision, but announced it just shortly before the election. And similarly, I think the voters took
that into consideration. Even though it seems like there's a lot of momentum to release the brothers early, I do think that this was one of the issues. Now, the clear issue though that we're hearing from the voters in that area where they were thick of the loose policies of the DA were seen that he was favoring defendants over victims in many cases, and they wanted a more tough on crime district attorney, and they got it.
Let's return to the habeas corpus petition. The hearing has been adjourned until January thirtieth. Dave, you're a prosecutor, does it seem as if there is enough evidence new evidence for the judge to grant the petition?
I don't think so. As a prosecutor, I think that there may be grounds for a new trial based on the new evidence when it comes to the murder of Jose, the father, But when it comes to murder of the mother, there's nothing that would change that the mother, Kitty was not credibly accused at the trial of sexual abuse or there's not even evidence that's come out that shows that that's what motivate that they were being victimized by both parents.
And so even if you make the case that Jose was a bad guy who molested his children, then how do you still explain Kitty. People say, well, she knew of the abuse and let it happen. But even that, even if you could show that which is not clear, then at best. Maybe that warrants a new trial, not an early release. You remember, the way they massacred the two parents was that they went over their parents' house.
The parents were sitting with their backs turned watching TV, eating ice cream, and the two brothers, who planned this extensively blew them away with shotguns. But Kitty did not die right away. She was crawling away, trying to get away when Lyle went back outside to reload the shotgun and then returned to do the final act. And there was so much blood, so much violence, that police thought it was a mob hit. So I'm not moved on getting an early release for these brothers based on what
they did to Kitty. Maybe a new trial, but nothing more than that.
So the judge handling the havieous petition could order a new trial.
Yeah, the judge and the habeas could say that the tenant's rights were violated. There was evidence that should have been introduced that wasn't introduced a trial. Remember, the judge at the time refused to introduce this evidence of abuse. And now there's new evidence. So the judge couldn't say, yes, we're going to reverse the conviction, overturn it and set up for a new trial. The judge could actually even go further and say he's going to let the brothers out,
so we'll see what happens. But even if that doesn't work, they could go to the other two routes as we mentioned, the resentencing by way of the local DA and perhaps clemency from the governor.
The resentencing by way of the local DA. That would also have to be approved by a judge, a different judge from the court Miss judge.
It gets a little complicated, so which judge these motions are filed in front of, But the resentencing first goes through the local DA to make a recommendation, and then it's up to the judge. And I'm not sure if it is it seem judge or if it a different judge that would hear the resentencing requests. But the reason why the DA, the outgoing DA, made the decision to seek a resentencing was not because of the new evidence of sexual abuse, but because the two brothers were model prisoners.
They were on good behavior, and to me, that's not a good enough reason to set aside to life in prison sentences. Sentence to life in prison should not get set aside because the inmates decided to be in good behavior while in prison. That should get them privileges in prison, but not early release.
But what district Attorney George Gascoon was going to do is legal.
Right, Well, the districttorney can recommend anything, but remember this district attorney got voted out of office largely because he was seen as soft on crime. So when he goes in front of a court and says, your honor, let these brothers out early because they behaved well in prison, I think that is something that a judge will reject, especially because the community has let their voice be known
that they don't want soft on crime prosecutors. They shouldn't have people who were sentenced for grizzly murders given life sentences to get out years early because they were acting nicely while they're in prison.
Dave, most of the family members of the Menendez brothers support their release. Where does that fit into the decisions that are being made by judges and state officials about their release.
Well, the victims' families will be heard, and that is a consideration. The fact that most family members support the brother's release will be a factor in the judge's decision. In the DA's recommendation and in the governor's decision on clemency, but it's not unanimous. There's at least one family member who does not want them released, so it's not unanimous, but it is a factor that most do support their release.
The next hearing before the judge and the Habeas Corpus petition will be on January thirtieth and thirty first, and their attorney, Mark Garrigo said, we hope that by the end of that hearing or sometime sooner, they'll be released. Is that too optimistic?
Yes, They're not going to be released before the Habeas Corpus hearing. The only way that could happen is if Ditgomery gives clemency and then it goes before the pro bore. That's not going to happen. And the fact that we have a new DA and we have a delay and now it's going to slow things down. So the momentum that was there to release the Menandez brothers asap is now slowed because of the election of the new DA.
And I think it's a good thing because before we let the passions of the community who's seen movies and TikTok videos about these brothers rule the day. Maybe we need to take a step back and reassess what they actually did and why they did it, and how after they did it they went on a shopping spree and went to NBA games, sitting in the front row and live the life they've always wanted to live. It seemed like at the time, and I stand by it, that
this was more financial crime. They wanted to inherit the wealth. They thought they were going to be written out of the will. They wanted their money, and they got what they wanted and lied about it until they were caught, and now they've been in prison ever since.
So the next thing to happen in the case will either be the full hearings on January thirtieth and thirty first on the Habeas Corpus petition, or a decision by the New DA about how to handle the case and whether to recommend resentencing and release. So let's turn out to other legal matters. I wanted to get your reaction to the Special Council yesterday dropping charges against Donald Trump in both the election interference case and the classified documents case.
I mean, he really had no choice because it was going to happen once tru gotten off as anyway, what's the downside and what's the upside if any.
Well, it was inevitable once Trump won the election that they would have to dismiss the charges, but the keywords in the dismissal were without prejudice. That means you can still refile it, and that would take perhaps January twenty twenty nine, So who knows what will happen then. But even if they do refile it, the former president and soon to be president could still try to pardon himself, or he could also claim that under the statute of limitations,
you can't refile the charges this many years later. Then the question is whether the course would allow a postponement of the charges because of the internal Department of Justice rule that says you cannot diet a sitting president. There are a lot of moving parts here, but it does seem like Trump is above the law to them because these cases I think are very unlikely to ever amount anything. Now. The only thing left will be his sentencing in New York,
which will still be set after he leaves office. And then there's a Georgia case, which who knows what's going to happen there.
That seems really stuck and who knows if that will go forward at all. So there is on record now a decision by a federal judge, Eileen Cannon that the appointment of the Special Council was unconstitutional, and the Special Council is trying to move forward with the appeal of that in the case against Trump's two co defendants. Do you think that will work because once Trump comes into office, I assume he's going to have that case against the co defendants dismissed.
Well, the case against the two co defendants are allowed to is allowed to continue because the Department of Justice policy just says, you cannot indict a sitting president. You can go after the co defendants, and that is a way a vehicle for Jack Smith to overturn the egregious ruling by Judge Cannon that the Special Council appointment of Jack Smith was unconstitutional. I think he will win on
appeal going after Trump. I don't think it's going to matter. Also, the next Attorney General, Pam Bondi, is going to want to use special counsels, and so I think she will go ahead and just move forward with special counsels like that. Judge Canon ruly didn't happen.
As you mentioned. Trump has nominated Pam Bondi, the former Attorney general for Florida, to be the next attorney general. And I know you know her, so tell us about her.
Well. I worked with her first. I ran against her in twenty ten for attorney general. She won, I lost. She hired me as her drugs Are afterwards, and it does tell you about her that she would reach across party lines to appoint a Democrat and got a lot of criticism from Republican leaders for doing that. I was her drugs Are. I went after the opioid epidemic, the pill mills, and we were able to shut them down and save lives in Florida. So I have a lot of respect for her for that. And as far as
a person, she's very well liked. She's a very likable, outgoing person. She will tether her to say, to the rule of law. She has no Matt Gates. She's not going in there to walk out Anthony Fausti and Adam Shift and handcuffs. Although I do think she will start investigations into the investigators, but got to be careful when
you do that. Remember what happened to John Durham. He was humiliated when he investigated the investigators, he came up with small ball, low level charges and got quick acquittaled and embarrassment for it. So that's a lesson learned.
She has publicly championed Trump's baseless claims of voter fraud, that there was voter fraud in a twenty twenty presidential election. She said this on Fox News last August because the deep state during the last term for President Trump, they were hiding in the shadows. But now they have a spotlight on them and they can all be investigated. The house needs to be cleaned out. That sounds a little conspiratorial and perhaps indicates a witch hunt maybe coming up.
Yeah, that's news rhetoric, that's political rhetoric. But I've seen her up close the prosecutor, and there's a difference between what you see on Fox News as a political commentator in what you see as a lawyer's a prosecutor. She's a twenty year prosecutor. She's an eight year attorney general in the state of Florida. I do not expect her to trump up to use the term charges against the
president elect's enemies just to please him. I think that she will investigate the investigators, which will open up a can of worms. She'll do things that will be controversial on that front, but overall, I do think she will be tethered to the rule of law, and she'll do things that are popular, like cracking down on illicted fentanyl at the border and going after prohamas supporters on college campuses.
I think that hopefully she will stay closer to that in her role as prosecutor and left into revenge for Donald Trump. The person who was going to be Trump's restribution is Matt Gates, and he's no longer at the appointee.
When she was Florida AG, she tried to dismantle Obamacare, the provision that's very popular that bans health insurance companies from charging more to customers with pre existing conditions. I mean, it's hard for me to understand the Republicans continuing efforts to dismantle Obamacare, which is so popular, including among their supporters, But that is something she could get involved with.
You know, I don't remember exactly what was done then. I think she joined with other attorneys general to try to overturn all of Obamacare, and at the time Obamacare was not as popular as as today today. If they try to do it, it will be a severe backlash. But yes, if you're going to try to overturn our system of healthcare, you got to have something to replace it with. And Trump says he'll have a replacement in two weeks at least. He's been saying that for the last eight years.
The confirmation process sounds like it will be much easier.
Yeah. I know her, and you know I know what kind of person she is. And although we disagree with politics, we do we have different ideologies. He's always been fair to me. She's always been selling. I have worked well with and she's worked well with Democrats. She's never been a big partisan. She is loyal to Donald Trump. It's clear she is loyal to Donald Trump. I'm not going in this with rose colored glasses. But if you're a Democrat,
Tally Yates is not walking through that door. If you're a Democrat, I think this is the best nominee that you're going to get from Donald Trump. And if she's not the nominee, then yeah, maybe you'll get Rurie Giuliani or the MyPillow guy with a law degree.
You don't want that, No, you don't, Thanks so much. Dave always a pleasure. That's bomb Beach County State Attorney Dave Ehrenberg coming up next on the Bloomberg Law Show. Senate Democrats are being criticized for making a deal with Republicans to abandon appellate judicial nominees in favor of trial court nominees. I'm June gross when you're listening to Bloomberg. Senate and Democrats have struck a deal with Republicans to abandon four of President Biden's nominees for appellate courts in
order to advance his nominees for trial courts. The deal comes after Republicans had employed stalling tactics this week to complicate Democratic efforts to confirm as many of Biden's judicial picks as possible before Republicans gained control of the White House and Senate in January. Many including progressives and a Senator on the Judiciary Committee, are critical of the deal because the appellate courts are one step away from the Supreme Court and policy decisions are made by them For
many states. The agreement derails Biden's efforts to place judges on four federal circuit courts before President elect Donald Trump returns to the White House. Joining me is an expert in the federal judiciary. Carl Tobias, a professor at the University of Richmond Law School, tell us about this agreement that Senate Democrats made with Senate Republicans.
Carl, Well, it looks like Democrats promised that they would not move on the four Appellate Court nominees who are out of committee and on the floor and awaiting confirmation debates and votes. In return, Republicans agreed not to obstruct a number of district nominees. That number looks like at least seven, but maybe more like a dozen, and so those are the contours of the deal. So that's where things stand right now and are not likely to change
because both sides have agreed to this. But of course there's been a lot of criticism from especially the Washington DC public interest groups of the deal because people are saying that just wasn't a very good deal, and many observers believe that the nominees are entitled to, or deserve or warrant or merit an up or down vote. So
we'll see what happens. But most of those four people are well qualified and relatively mainstream, and so it seems as if at least three of them would have been confirmed, and maybe all four of them.
It doesn't make much sense to me, considering that the circuit courts are one step away from the Supreme Court and are so much more important than the trial courts.
That's exactly right. I mean, both sides, Republicans and Democrats, act that way, so it must be true because of course they cover multiple states, they make more policy, they're fewer of those judges, and as you suggest, they're one level below the US Supreme Court, and so both sides know how critical those are. And we saw that in Trump's years with fifty four, which I think was a
record for one term of a presidency. And then Biden has confirmed forty five and was hoping to eclipse Trump, but that isn't possible, though he could have come quite close with forty nine if the four on the floor now had received votes.
Senator Mazie Herona, who's a Judiciary Committee member, said these nominees emerged from hours long hearings where many have faced unfounded personal and professional tax from Republicans on the Judiciary Committee. The circuit courts are one step removed from the Supreme Court, which makes these nominees especially critical. She's a member of the Judiciary Committee who makes these deals.
Well, it sounds like this was a deal made by Senator Schumer with Minority Leader to be soon on Thursday, I believe after the obstruction by the Republicans of the nominee at the district level. I think it was Schumer's decision, perhaps in consultation with Senator Durbin the Charity Sherry Committee, But that's not entirely clear, and there are not many
details about it. The most I think telling is a quote from a spokesperson for him saying the trade was four circuit nominees all lacking the votes to get confirmed, which is contested by many for more than triple the number of additional district judges moving forward. That summarizes what
the Shumer staffers and I think Schumern himself thought. But many people have criticized that it's unfortunate, especially personally and professionally for the nominees who had ruling hearings, and Senator Rono is forret when she describes it that way and had waited a long time, and the courts need their judges. It's very unfortunate. Did that happen.
I understand that judges James Winn of the Fourth Circuit and Jane Brend's letter Stranch of the Sixth Circuit could still walk back theirs. I mean they were only going to semi retire. They weren't going to stop hearing cases.
That's correct. They were saying that they would take senior status and have probably a half case loads, and they satisfied the rule of eighties that they were sixty five and had fifteen years of service and were prepared to do that upon the appointment of a successor. But as you suggest, it is not set in stone until it
actually happens. And so there is this sort of custom among especially appellate judges, which I think goes back to about a decade ago when a number of Republican appointees started doing that because they didn't want a Democratic president to replace them depending on who was going to win the election. And so it's come forward and as the process has become increasingly partisan to some extent, the judges
are more sense to that as well. And so we're seeing that with Republican appointees or appointings of Republican president wanting to be sure that they're replaced by another Republican president and pretty much the same for Democrats. And that's where we are. And so that's what happened. So I don't know what those two judges are likely to do, but it's possible. And there's already a district judge in Ohio who has done the same thing, But it is
certainly possible. And the deal then looks, as a number of people have said, like a better deal. In fact, that was the trade to the main seat for Judge Kayata, who originally took senior status, just as the two other judges, the six Circuit and Fourth Circuit judges did with a to be determined designation but then converted to a current vacancy.
And then, of course the third Circuit seat was Judge Greenway, and his vacancy is a current vacancy and so will fall to Trump as well as a Kyata one in Maine, the first Circuit, in the third circuit.
Let's talk about the ones that are definite, the third Circuit and the first Circuit. What would that do if Trump gets to appoint another judge to those circuits. I mean, the first Circuit is basically all Democrat appointed judges right now.
So will there be any flipping, Well, it certainly won't in the first because I think Biden has named just about the entire cohort of active judges. Is the smallest appeals court in the country. It only has six authorized judge ships who are active status, and I believe he's appointed five or four that will not flip. The third circuit, I believe is closer, and it might be that if it's all to Trump to fill Greenway's vacancy, that would
mean that I think they would be tied. That's an important court, of course, and of course the nominee a deal. Mungu was extremely well qualified but also belified by Republican senators in his hearing, and it took fifteen months to get to this point.
What were their claims against him? Was it that he was anti Semitic?
There were questions about that, questions about whether he celebrated nine to eleven in other pretty disgusting questions that were asked of him. Also, he sat on a committee that advised students at Rutgers Law School, and he said that you know, there were hardly any meetings of that group and he had very little to do with the group
he agreed to be a board member. They staged some programs that Republicans thought were anti American, if you will, but much of that was not really very well validated. He did get out of the midtee on a party line vote, but never had a four vote, and neither did the others.
Trump made fifty four appellate appointments forty five. How many more appellet appointments do you think besides these four that we're talking about now, how many more do you think can come up in Trump's term that he could flip more circuits?
Well, that's a really good question. The way I see it right now, if you're counting the numbers, there is a Delaware vacancy that will come open on January fifteen. Judge Kent Jordan is retiring, and so there's that, and then the four we've been talking about, so right now it looks like five. But you should know that there are I believe, at least three dozen appointees of Republican president on the appeals courts who are eligible for senior
status and could take it. Some of those go back quite a distance, and so it's not clear that they will do that. But you know, I would expect some of that to happen during Trump's time, but it's hard to estimate how many of those three dozen or so will actually do.
So what about district court nominations. How has Biden done?
He's done very well. I mean, he has one hundred and seventy three now on the floor. I think Republicans have agreed to seven who will get votes and they will be confirmed pretty certain. And then they are five more who were voted at a committee just last week and they are likely to be confirmed, which would bring his total to something like one hundred and eighty five
at the district level. And then his total number of appointees would look something like two thirty or two thirty one to thirty two, depending on how you count it. And then there are two California nominees who had a hearing last Wednesday, and they might come forward and be confirmed because their mainstream judges they had a relatively good
hearing and they're quite moderate. So then I think the estimate of the number that Trump will have on the district bench when he comes in on twenty is somewhere in the thirties. So that's what it looks like.
Well, this time, Trump won't have the build up of vacancies that Mitch McConnell was able to give him by withholding confirmations of President Obama's nominees, including his Supreme Court nominee. Thanks so much, Carl. That's Professor Carl Tobias of the University of Richmond 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. I'm June Grosso and you're listening to Bloomberg