Castro Indicted, Death Penalty & Police Sue Over Trump Fund

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2:30Acting Attorney General Todd Blanche unveiled murder and conspiracy charges against former Cuban President Raul Castro before a cheering crowd in Miami. Castro, the brother of late revolutionary dictator Fidel Castro, is accused of ordering the downing of two small civilian planes operated by the exile group Brothers to the Rescue, killing four people 30 years ago when he was Cuba's defense minister. The indictment does fuel speculation that the U.S. is preparing to launch military action against Cuba following the capture by U.S. forces in January of former Venezuelan president Nicolas Maduro to face drug charges in New York.

3:17Blanche appeared irritated when asked if the indictment will be used as justification to send forces into Cuba. We didn't indict. This isn't a show indictment. This is an indictment because we expect that there was a warrant issued for his arrest. So we expect that he will show up here by his own will or by another way. And today, Secretary of State Marco Rubio refused to answer a question about how Castro will be brought here to face the charges. Well, I'm not going to talk about how we're going to get him here. If we were trying to get him here, why would I say to the media what our plans are about that?

3:55I know you have to ask, but why would I answer that? Joining me is former federal prosecutor Nima Romani. He's the president and co-founder of West Coast Trial Lawyers. Neva, tell us about this indictment. The Raul Castro indictment is significant in so many ways. I mean, something that, frankly, we really haven't seen before this administration. Obviously, you know, Manuel Noriega, but you have now the second head of state or former head of state who has been indicted by this administration or arrested by this administration. And typically, there would be no world legally or politically where it would even be possible for Raul Castro to ever step foot in an American courtroom.

4:43But of course, with President Trump, he can be unpredictable. So there's certainly the possibility that this arrest warrant is actually executed and he does face trial for these murders some 30 years ago. The acting attorney general said this is not a show indictment. But isn't that what this is in many respects? I mean, Cuban opposition leaders in Florida have long been urging U.S. officials to bring charges against Castro. Trump has been threatening military action in Cuba ever since U.S. forces captured Maduro. A grand jury in Miami brought the indictment on April 23rd, but the government waited to announce it until Wednesday, about a month later on Cuban Independence Day.

5:32And this is 30 years ago. Has the evidence been growing unlike every other case where the evidence gets weaker over time? June, I can tell you I've been doing this 25 years and I covered the DOJ press conference live. And I can tell you I've never seen so many cheers and applause at a Department of Justice press conference. I mean, this is a big deal politically for Cuban Americans. I obviously am not naive to the harm and suffering that them and many of their family members have endured by, you know, the brutal Cuban government. But, you know, I think one of the questions that was raised repeatedly during the press conference to Todd Blanche, the U.S.

6:16attorney there in the Southern District of Florida and the Florida attorney general, it was a who's who of prosecutors there in Florida and throughout the country, all of whom are praising President Trump, of course. was, is this a symbolic indictment? An indictment doesn't mean anything unless prosecutors can actually get across the finish line, get a conviction, put someone in prison. And we've seen this Department of Justice have, you know, some pretty high profile starts, but they haven't gotten anywhere, right? It can be Tishames, it can be Comey, I mean, you name it. Now, this is something that's even more challenging.

6:53And I think Blanche had a tough time answering that question because, frankly, it's really not within his control as the acting attorney general. This is something that would require military intervention. There is no world where Castro is coming to the United States voluntarily. And similarly, there's no world where Cuba is going to extradite him. I can't imagine that that's even possible politically. So the question is, will there be a military operation? I think before Venezuela, I would have been very skeptical. But obviously, that was something that in many ways was unprecedented. Again, the only other example would be Noriega.

7:31So it's certainly possible. But are they going to go arrest a 94 year old and try him? I think that would make a lot of people here happy politically. But without some sort of military assist legally, I think, unfortunately, this isn't going to go anywhere. Well, Blanche said, quote, we expect he will show up here either by his own will or another way. I think another way most people see as a military operation similar to the Maduro operation. Cuba's current president called it a political maneuver fabricated to justify the folly of a military aggression against Cuba. I mean, it seems almost blatant.

8:11It does. And to answer your last question, I think it's an important one. You know, what's changed in the past 30 years? You know, is there a smoking gun that, you know, in the past year and a half, this new administration, they found new evidence? No, I mean, these cases get worse over time, right? If you're looking at how you would prosecute it, you need someone on the inside to testify that it was Castro's order to shoot down these planes. The MiG pilots, co-pilots, I mean, you name it. It would require some sort of cooperator testimony. One of the pilots, I believe, since died. And I can't imagine that anything has changed in terms of the facts of the case or the law.

8:46What's changed is obviously you have a president who is willing to be very aggressive when it comes to these types of charges and potentially even more aggressive when it comes to military intervention. And I think that's what's changed. The politics has changed, not the facts and the law. Talking about the politics, this is an example of the administration using the Justice Department to bolster its own aims, in this case, foreign policy aims. But we've seen this time and time again, this use of the Justice Department for President Trump's ends. Yeah, no question. Obviously, I mean, the DOJ has helped Trump and his family members in terms of going after his adversaries to protect him.

9:31This is one of the main criticisms of the DOJ. Is this Department of Justice there to serve the American people and the public? Or is it there to serve the president? And I think serving the president is a problem. Now, of course, folks on the other side will say it was Biden who started it, the weaponization, the lawfare, and we'll go back and forth. I think what makes this unique is that we have the DOJ, which rarely but here appears to be serving a foreign policy objective. I recognize that there are many people in Florida and elsewhere that support this from a foreign policy international relations perspective.

10:11The question I have is, is our federal court system the best vehicle for something like this? Right. I'm not so sure. And it hasn't been historically. But I can tell you, like my parents moved here from Iran when they were in college, you know, so there are a lot of people in the Iranian-American community that feel a certain way about that government over there and would be, you know, dancing in the street if, you know, one of the ayatollahs were to stand trial here in court. And, you know, I believe that many of them are war criminals. It's just this is not typically what is done in the DOJ to be extraditing heads of state.

10:51And I understand as a former head of state and the immunity doesn't apply again, it's just not how it's typically done. But obviously, when it comes to President Trump and our legal system, you know, you can't say never. Every day there's something unprecedented. And this is certainly one of them. I think it sets a bad precedent, the U.S. indicting foreign leaders and then using military operations to go in and bring them to jail in the U.S., using the legal system to bring about regime change. But there's no exit strategy, whether it's Venezuela, Iran, or perhaps next Cuba. Yeah, I mean, look, I mean, obviously Venezuela and Iran.

11:30So Venezuela, again, you know, I spoke to many Venezuelans immediately after Maduro was arrested. I mean, they were elated, you know, and I think it was symbolically it meant a lot. We'll see what happens with the prosecution itself and if he is convicted. But I wouldn't necessarily say a whole lot has changed for the people of Venezuela, notwithstanding that important symbolic prosecution. Iran, I would certainly argue that, at least for the Iranian people, the war hasn't been very helpful. It may have been helpful for the U.S. and some of our allies in the Middle East, potentially. Again, I'm no foreign policy expert.

12:07But again, I think, June, you and I have spoken many times. I think we really need to separate the law from politics. And there appears to be no separation whatsoever anymore, which is such a big problem, in my opinion, because the last thing you want is for people to be prosecuted because of their political beliefs or for international disputes that should be resolved through diplomacy or the UN or even the ICC. see what's going to happen. We'll have a tit for tat where, you know, China and Russia and other folks who are indicting or charging whatever the equivalent is over there. You know, American political leaders, it just doesn't make a whole lot of sense to me.

12:46Thanks so much for joining me today, Nima. That's Nima Romani, president of West Coast Trial Lawyers, coming up next on the Bloomberg Law Show. The Supreme Court dismisses a death penalty case on defendants with mental disabilities without making a decision. I'm June Grosso, and you're listening to Bloomberg. Running a small business takes everything you've got, but with Chase for Business, you're not alone. They bring together local support and a broad range of resources to more than 7 million customers. With a deep understanding of your day-to-day needs, they provide products and guidance built to help you thrive.

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16:02The appeal was dismissed as improvidently granted, an unusual action that leaves the last lower court ruling in place. Joseph Clinton Smith has been on death row roughly half his life after his conviction for beating a man to death in 1997. The 11th Circuit Court of Appeals halted Smith's execution, and that decision will now remain in place. My guest is Greg Block, a professor at Georgetown Law. Greg, tell us about the issue in this case. So in the background, however, is profoundly different visions of the death penalty. And I think that we would be remiss if we don't acknowledge the intensity of that difference of perspective.

16:47In the kind of medium foreground is an opinion issued more than 20 years ago, Atkins v. Virginia, which held that a person who, to use the argument of the time, was mentally retarded, to use contemporary language, a person who was intellectually disabled, which held that a person in such a state who had been convicted of a capital offense and sentenced to death could nonetheless not be executed consistently with the Eighth Amendment to our Constitution. That led to the question, it posed the question of what constitutes mental retardation, as it was called back then, or intellectual disability, as it's referred to today.

17:31And there have been multiple approaches to that question. Central to these approaches has been the role of intelligence testing, which dates back 120 years, and yet is still, you know, au courant, a pervasive part of our lives. We're all familiar with the IQ test. We're all familiar with its first cousin, the SAT, the scholastic aptitude test, etc. So this is not stuff that is unfamiliar to, you know, most Americans. And medicine and clinical psychology have approaches to diagnosing intellectual disability that do involve some use of the IQ test, but also involve clinical assessment, subjective clinical assessment, which is rooted in part in people's history, their school history, their behavioral history, etc., and rooted in part in the onset of various forms of apparent disability.

18:29And that approach contrasts with the use of just a number, the IQ test. And even if we use just a number, if people take multiple IQ tests, they get different results. Because the IQ test is not measuring some inherent biological phenomenon like you might measure the amount of hemoglobin in a person's blood. The IQ test is assessing people's behavior on that particular test. And IQ, contrary to what lots of folks might think, is not an inherent thing that exists in the same sense as the amount of hemoglobin in someone's blood. And so we have to spew over how we should count multiple varying IQ tests.

19:10And I'd say, above all else, this fight that led to this case, which was now being dismissed as improvidently granted, but with lots of vociferous reactions on the part of four different justices, really six, counting the concurrence and the dissent. This fight is about whether medical and psychological experts, clinicians, should render that final judgment about mental disability or whether the courts should issue an approach, whether the Supreme Court should issue specific guidance for how mental disability should be determined for the purpose of whether somebody should be put to death. And did the state of Alabama basically want to use an average of the defendant's IQ scores?

20:03Basically, the state wanted to use the IQ scores without the subjective process of clinical assessment. Now, the state accepted that there might be more than one approach to thinking about multiple IQ scores. And there were, I believe, if I remember correctly, four or five different IQ scores flowing from tests administered at different points in time, and most recently from tests administered by psychologists working for both the defense and the state. So you can average the IQ scores. You can, as the state suggested, take the highest IQ score. You can look at the error ranges that each IQ score offers up, and you can count perhaps the lowest possible IQ based on the error range.

20:50There's lots of different approaches, and the state did not vigorously insist that one of those approaches had to be the correct approach. But the state did take the position that it should be just the IQ scores, not the expert's clinical assessment. And this appeal came from the 11th Circuit, which is quite a conservative circuit, that had halted Smith's execution, finding that he met the intellectual disability standards set out by the Supreme Court in Atkins, based on the results of multiple IQ tests administered over several years. And you could view this result today as a kind of functional affirmation of the Court of Appeals.

21:37So what they did was, it's called a dig. They said that the case was improvidently granted, meaning the justices made a mistake by agreeing to take it up. Literally, I don't claim to be a professional court watcher, but that's a term of art. There's lots of terms of art. Just like if one judge disagrees with another and gets the votes to win, that's called an error. Does it really mean an error as in a mistake? Well, not really. That's a term of art. And same thing here with Improvidently Granted. The Supreme Court has a variety of maneuvers that it can engage in in order basically to say, well, we're not going to decide this particular issue now, at least the way it's already been framed, or we're going to let this percolate in different kinds of ways.

22:25And that's the move that the court made today. Because this case had already been before them, didn't they know what they were getting into? One never knows, you know, within the secretive, Well, I guess they're not quite as secretive as they used to be, the chambers of our Supreme Court. Things do leak occasionally, and perhaps 20, 30, 40 years from now, historians will go through records and find something interesting about how this result came about. But at this point, we can't really know. I mean, it seems unusual that you had, you know, this improvidently granted, but yet there are 62 pages of opinions.

23:07I mean, when does that happen? Right. It's usually the two-liner per curiam, right? You have that two-liner per curiam, but the PDF says then 60-some pages. Do we go by what Justice Sotomayor said in her concurring opinion? I think what we can say is that the court is collectively telling us, through its vociferous disagreement, that under circumstances that might well arise in the near term, it will again consider this issue. But for now, for whatever reasons, it's going to hold off. Now, we could take Justice Sotomayor literally here and infer that once a record in some future case lays out additional findings, additional alternatives from experts, additional arguments as to how the question of mental disability should be determined, that the court will be more willing to hear the case.

24:12There is an interesting precedent for this, June. If we go back to 1986, we have the opinion, Ford v. Wainwright, in which the Supreme Court did hold that executing somebody who was not mentally competent to be executed, didn't understand because of psychiatric illness, why he or she was being put to death, was contrary to the Eighth Amendment. And when the Supreme Court issued Ford v. Wainwright, it notably failed to issue criteria for mental competence for execution. And to this day, the Supreme Court has not issued such criteria, leaving lower courts, both state and federal courts, to the task of making those determinations perhaps inconsistently.

25:04So it is interesting. We now have both for so-called insanity or mental incompetence, I should say, and now for cognitive disability, intellectual disability, we have the Supreme Court not providing specific guidance. I mean, do you think it's better in a case like this that they don't provide specific guidance? Yeah, it's a pretty profound question that you've just posed, because here we have something ineffable, something intangible, something ambiguous and uncertain, and that is this question of mental disability, mental disability severe enough so that we deem it contrary to the Eighth Amendment of the Constitution to execute somebody in this state.

25:49That's a pretty vague concept, however specific the court tried to be in Atkins v. Virginia more than 20 years ago. And then the question arises, who decides this ambiguous thing? And of course, since it's ambiguous, and since it's literally a matter of life and death, there's a whole lot of morality involved, a whole lot of what people think ought to be done, right? And who should decide the ought here is the central question. Who should decide the ought? And the experts under the model that was pursued by the district court and affirmed by the court of appeals, experts are the ones who get to decide the ought.

26:26And so if you're a critic of the experts should decide view, you know, as say Justice Alito is, you might fairly say, well, that means that experts are interpreting the Constitution and that we have psychologists or psychiatrists deciding what constitutes an unconstitutional execution. You know, there's nothing in the Constitution that says physicians or psychologists are, you know, authorized interpreters of the document, right? And if you're a supporter of the vision laid out by Justice Sotomayor, and if you're critical of Justice Alito in this regard, and Justice Thomas, then you say that by denying experts this role, we're denying our best answer to the question.

27:15But it is ultimately a moral question where that line is, how we define that line. And it's ultimately a political question, dare I say this, whether we want to look to the clinical community, psychologists and psychiatrists, or whether we want to look to judges to define this line. And Justice Thomas's dissent is no surprise. Thomas is clear in his dissent that he's about getting rid of Atkins versus Virginia. He's declaring a war on Atkins versus Virginia. Whether he wins that fight someday, who knows? That's a guessing game I'm not going to engage in. The more important dissent here is the Alito dissent.

27:54which has multiple of co-signers and is focused on this question of who decides where that line is and weighs in heavily in favor of the courts deciding rather than the clinical community of experts. Thanks so much. That's Georgetown Law Professor Greg Block. Coming up next, January 6th police officers sue over Trump's$1.8 billion so-called anti-weaponization fund. This is Bloomberg. Being a small business owner isn't just a career. It's a calling. Chase for Business knows how much heart and effort go into building something of your own. That's why they make business growth their priority. The Chase team takes the time to understand your mission, where you are now, and where you want to go.