In short
The episode is a Bloomberg Law discussion of three Supreme Court-related legal issues: (1) Colorado’s ban on conversion therapy for minors, (2) the federal indictment of New York Attorney General Letitia James in a mortgage-fraud case, and (3) a Sixth Amendment challenge involving a trial judge’s “non-conferral” order during an overnight recess while a defendant testified.
Guests
Caroline Mala Corbin, First Amendment expert and University of Miami Law School professor; Bloomberg legal reporter Chris Strom; former Manhattan prosecutor/criminal defense attorney Paul Callen.
Key claims
Conversion therapy is harmful and states may regulate licensed providers’ conduct even if it involves “words”; the constitutional fight turns on whether it’s speech or conduct and what scrutiny applies. James was indicted on bank-fraud and lying-to-a-bank charges over a Norfolk property allegedly misclassified; defense argues vindictive/selective prosecution and unlawful appointment of interim U.S. attorney Lindsay Halligan. In Villarreal’s case, courts are split on whether overnight restrictions on lawyer-client discussion of testimony violate effective assistance.
Notable examples
abortion “incidental speech” doctrine; Tennessee transition-treatment ban comparison; Trump’s public calls to indict James/Comey/Schiff; “subornation of perjury” line; Roberts/Kagan hypotheticals about plea advice and coaching.
Written by AI. May contain mistakes. Listen to the episode to check what was said.
Chapters
Tap a time to open that second in VOColorado's Ban on Conversion Therapy
0:30 to 0:59
Discussion on Colorado's Supreme Court case regarding conversion therapy.
“When you own your own business, you own every decision.”
Colorado's Ban on Conversion Therapy
1:52 to 4:00
Discussion on Colorado's Supreme Court case regarding conversion therapy.
“Colorado Solicitor General Shannon Stevenson defended the state's ban on conversion therapy for minors at the Supreme Court.”
Free Speech Rights and Conversion Therapy
4:00 to 7:46
Examining the legal implications of banning conversion therapy as a violation of free speech.
“And it's the idea of trying to convince someone who is gay that they're not actually gay, or trying to convince someone who is trans that they're not actually trans.”
Comparative Legal Contexts
7:46 to 11:08
Analyzing how the Supreme Court has treated similar cases in different contexts.
“It seems like there is almost universal agreement among those who listen to the oral arguments that the Christian counselor is going to win here.”
Medical Consensus vs. Political Ideology
11:08 to 14:00
Discussion on the role of medical consensus in the context of conversion therapy bans.
“be considered a regulation of speech that sort of compels a viewpoint.”
Discussion on Conversion Therapy and Legal Implications
14:00 to 14:34
The medical community's stance on conversion therapy and its legal implications in various states.
“And to be sure, the medical community has made errors in the past.”
Discussion on Conversion Therapy and Legal Implications
14:37 to 14:49
The medical community's stance on conversion therapy and its legal implications in various states.
“Applying the Wallet app on iPhone today.”
Indictment of Letitia James
14:49 to 15:40
Overview of the indictment against New York Attorney General Letitia James.
“Get the news you need in just 15 minutes.”
Details of the Charges Against James
15:40 to 19:28
Analyzing the specific charges against Letitia James and their implications.
“James infuriated Trump by suing him and winning in a case alleging that he built his business empire on lies about his wealth.”
Controversy Surrounding the Indictment Process
19:28 to 22:23
Discussion on the unusual aspects of the indictment process involving political influence.
“And what's really interesting is that none of the career prosecutors who work for the Eastern District of Virginia signed on to either of the indictments against James or Comey.”
Show all 17 chapters
James's Defense Strategy
22:23 to 23:15
Exploration of Letitia James's defense strategy against the charges.
“And Letitia James could also use that argument, although since there's no statute of limitations problem in her case, prosecutors could just refile the charges against her.”
Comey's Case and Legal Proceedings
23:15 to 26:54
Insights into James Comey's case, including challenges in the indictment.
“James is going to be arraigned on October 24th, so we might learn more about her case at that time.”
Trial Decisions and Defense Challenges
27:38 to 28:00
Understanding the challenges faced by defendants in trial decisions regarding testifying.
“It's the most difficult decision a criminal defendant has to make at trial, whether or not to take the stand.”
Villarreal's Testimony Break Controversy
28:00 to 29:50
Explore the case of David Villarreal and the implications of a judge's order on his right to counsel.
“But when there was an overnight break in his testimony, the judge barred Villarreal's attorney from discussing his testimony with him.”
Legal Advice vs. Coaching in Trials
29:50 to 34:40
Discuss the fine line between permissible legal advice and prohibited coaching during testimony.
“Joining me is former Manhattan prosecutor and criminal defense attorney Paul Callen of counsel at Edelman & Edelman.”
The Complexities of Ethical Rules
34:40 to 38:15
Investigate the ethical considerations lawyers face when advising clients during testimony.
“Yeah, the testimony interacts from the legal standpoint with all of the evidence in the case.”
Justice Insights and Legal Experience
38:15 to 40:08
Reflect on the perspectives of justices with trial experience regarding client testimony.
“into civil practice as well, I think, if they make a definitive ruling on the issue.”
Transcript
Automatic transcript. May contain errors.0:00Caroline Mala Corbin:So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need. Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business. IBM.
0:30Chris Strohm:When you own your own business, you own every decision. Now own the card that rewards you for it. Chase Sapphire Reserve for Business is a pay-in-full card that elevates your travel experience and offers premium benefits that will take your business to the next level. Sapphire Reserve for Business offers 8x points on all purchases through Chase Travel, 3x points on social media and search engine advertising, airport lounge access, and more. Chase Sapphire Reserve for Business. It's the card that gives back all you put in. Learn more at chase.com forward slash reserve business. Chase for Business.
1:04Chris Strohm:Make more of what's yours. Accounts subject to credit approval. Restrictions and limitations apply. Cards are issued by JPMorgan Chase Bank N.A., member FDIC.
1:14Caroline Mala Corbin:Never bet against American grit or American energy. Through innovation, Venture Global is not only building some of the largest energy facilities in the world right here in the United States, but delivering American energy at a fraction of the cost and a fraction of the time. So while others are busy talking, we're busy building. That's venture global. That's unstoppable energy.
1:45Caroline Mala Corbin:This is Bloomberg Law with June Grosso from Bloomberg Radio.
1:52Paul Callan:Colorado Solicitor General Shannon Stevenson defended the state's ban on conversion therapy for minors at the Supreme Court. She argued that the Constitution allows states to protect patients from harmful, discredited treatments, even if a regulation incidentally affects speech. A health care provider cannot be free to violate the standard of care just because they are using words. And a state cannot be required to let its vulnerable young people waste their time and money on an ineffective, harmful treatment just because that treatment is delivered through words. An evangelical Christian therapist is challenging the law, saying it violates her free speech rights.
2:35Paul Callan:And the court's conservative justices appeared to agree with her, questioning the constitutionality of the law. Here are Chief Justice John Roberts and Justice Samuel Alito. In other words, just because they're engaged in conduct doesn't mean that their words aren't protected.
2:54Caroline Mala Corbin:Looks like blatant viewpoint discrimination.
2:57Paul Callan:Liberal Justices Sonia Sotomayor and Ketanji Brown-Jackson were the only justices who addressed the harms of conversion therapy that every major medical association warns about.
3:09Caroline Mala Corbin:There are studies that say that this advice does harm the people emotionally and physically.
3:19Paul Callan:And Justice Jackson questioned why the Colorado law should be struck down when in June the court upheld a different measure from Tennessee that bans transition-related treatments for transgender kids. The regulations work in basically the same way and the question of scrutiny applies. in both contexts. So it just seems odd to me that we might have a different result here. My guest is First Amendment expert Caroline Mala Corbin, a professor at the University of Miami Law School. Caroline, will you explain conversion therapy and Colorado's law banning it?
3:56Chris Strohm:As about half the states in the country have done, Colorado banned something that has been called gay conversion therapy. And it's the idea of trying to convince someone who is gay that they're not actually gay, or trying to convince someone who is trans that they're not actually trans. And this approach to gay and trans people has been proven to be very deleterious for their mental well-being. And so states have forbidden it. They have made it illegal for licensed medical professionals to provide this as part of their practice of medicine. So to be very clear, it doesn't ban clergy from talking to people about sexual orientation or gender identity.
4:48Chris Strohm:And it doesn't even ban the therapist from talking about it in their own free time. But if they are in the process of providing health care services that they have been licensed to provide, they're not allowed to try and convince gay people that they're not gay or trans people that they're not trans. That's the law.
5:11Paul Callan:And what's the fundamental issue in the case?
5:14Chris Strohm:So you have this law. It says if you're licensed by the state, the state does not allow you to do things that are contrary to the standard of care. And so you cannot provide conversion therapy. And we have this white Christian woman who argues that the ban forbids her from providing the type of therapy that she wants to practice. She gets help from Alliance Defending Freedom. And so the question before the court is, does this ban on this medical therapy violate the licensed practitioners' free speech rights? And so the question before the court is, does this ban on this medical therapy violate the licensed practitioners' free speech rights?
6:04Chris Strohm:And the legal question that makes all the difference is whether providing conversion therapy is speech or whether it's conduct. Because if it's speech, then it implicates the free speech clause. In fact, it becomes presumptively unconstitutional. If, on the other hand, it's considered conduct, then it doesn't trigger the free speech clause and the government is likely to be allowed to regulate it. So the million dollar constitutional question is how should this practice of conversion therapy characterize? Is it speech or is it conduct? Now, I just want to point out that speech in the colloquial sense doesn't always match speech in the constitutional sense.
6:56Chris Strohm:So let me give you a couple of examples when speech is not actually speech, which seems counterintuitive. And yet, if, for example, you told national security secrets to a foreign enemy, that's speech. But that wouldn't be treated as speech. It would be treated as the conduct of treason. It's not protected by the free speech clause. Or, for example, a sign on a restaurant that said, we do not hire fill in the blank. We do not hire black people or Latino people or Asian people. That's words. But that wouldn't be considered speech. It would be considered the act of discrimination. And so while it may seem really obvious on its face that, well, this is words and therefore it's speech, it's not quite as clear cut as the Supreme Court is going to probably conclude.
7:54Paul Callan:It seems like there is almost universal agreement among those who listen to the oral arguments that the Christian counselor is going to win here.
8:04Chris Strohm:I mean, clearly, whenever you have a white conservative Christian arguing before the Supreme Court, they're going to win, especially if the only thing at stake, and I say only from the court's perspective, is LGBTQ rights. They just don't care. Right. So I think it was a foregone conclusion, apart from any of the legal principles, that the white Christian woman was going to win. I never used to predict the outcome of Supreme Court cases, but it seems the pattern is so clear these days that I think one could say with a certain degree of confidence that she's going to win. And they're basically going to say this is speech and therefore it is presumptively unconstitutional and only if the government has a super compelling justification for its law and the law was the only way to accomplish its goals, it's not going to win.
9:03Chris Strohm:In other words, it's going to have to pass what is known as strict scrutiny. And that is very hard to do in the speech context.
9:09Paul Callan:It seemed like most of the discussion was about what standard should be applied here.
9:14Chris Strohm:Well, that's because if it is considered speech, then the standard is going to be strict scrutiny. And if it is not speech, then it's only going to be rational basis scrutiny. So what level of scrutiny a court must give to this law, how hard it looks at it, questions it, the level of evidence the government needs to provide will depend on whether it is speech or conduct. because, again, if it is speech, then it implicates the free speech clause.
9:50Paul Callan:Is this a novel issue coming to the court? Have they decided any similar cases?
9:56Chris Strohm:The Supreme Court is not deciding this against a blank slate. They have already considered the question of medical treatment and speech conduct, but in the abortion context. So I want to highlight that many states who are hostile to abortion, one of the things that they require their abortion providers to do is to give women certain information about abortion. So for example, you have to let women know that adoption is an option or that fathers have to pay child support. Other states have held that women have to be told all the harms that may result from abortion, some of which are not even medically accurate.
10:40Chris Strohm:But the point I want to make here is that doctors challenged this regulation on speech grounds and argued the government is forcing us to say things that are contrary to what we believe is appropriate and correct. And you might think, well, these are words and they're being forced to articulate a particular viewpoint on things. for example, don't have an abortion, you know, adopt your child out instead, that it too should be considered a regulation of speech that sort of compels a viewpoint. It's a viewpoint-based restriction and therefore should trigger strict scrutiny and be presumptively unconstitutional.
11:22Chris Strohm:But that is not what the Supreme Court did. What the Supreme Court said is that these laws that compel doctors to speak against their will and say things that they don't want to say, the Supreme Court held that is not a regulation of speech. That is actually a regulation of the medical profession that only incidentally affects speech. So they're deciding this case against a backdrop of the Supreme Court already having held in a different context that speech that is connected to the provision of medical treatment is not necessarily going to be treated like speech. And so, you know, oh, it just so happens, right, that if you're challenging something that's anti-abortion, it's not speech.
12:15Chris Strohm:But if you're challenging something that's pro-LGBT, it is speech.
12:20Paul Callan:The Supreme Court has been steadily rolling back protections for gay and transgender people in recent terms. The last time I can think of that LGBTQ rights won at the Supreme Court was the Bostock case in 2020. Is that the last time?
12:38Chris Strohm:I think so. And I think they have really undermined their own credibility by so aggressively promoting a particular ideology and to do so at the expense of a marginalized community is not to their honor. And let's be clear, they get to pick and choose their cases. There was nothing that required them to decide this case. I think in addition to its longstanding attack on the LGBT community, I think we also are seeing here a real disparagement of expertise, which we also saw in Scribetti. Because to be clear, there is a consensus in the medical community that this therapy is really harmful. And yet they did not seem to accept that.
13:39Chris Strohm:Instead, they kept pushing back against this idea that the experts knew what they were talking about. And certainly Alliance Defending Freedom is helping them by producing all kinds of questionable claims about the reliability of the science underlying the medical consensus. And to be sure, the medical community has made errors in the past. But if we have to rely on something, you know, better to rely on medical experts and the weight of the medical community than a right-wing political group.
14:20Paul Callan:And the decision here will implicate similar bans on conversion therapy in 26 other states. Thanks so much, Caroline. That's Professor Caroline Malacorbin of the University of Miami Law School. This message is brought to you by Apple Card. Apple Card lets you earn daily cash back on every purchase, every day. Applying the Wallet app on iPhone today. Subject to credit approval, Apple Card is issued by Goldman Sachs Bank USA Salt Lake City Branch. Terms and more at AppleCard.com. Get the news you need in just 15 minutes.
14:52Caroline Mala Corbin:Start your day with Bloomberg Daybreak, the podcast with a global view on the stories that matter. I'm Nathan Hager.
14:57Paul Callan:And I'm Karen Moscow. Join us each morning for curated stories on current events, politics, business and foreign relations.
15:04Caroline Mala Corbin:Plus one conversation on the day's biggest developments, all in just 15 minutes.
15:09Paul Callan:Subscribe to Bloomberg Daybreak for a precise, thoughtful take on the stories that matter.
15:13Caroline Mala Corbin:Listen to Bloomberg Daybreak each morning on Apple, Spotify or anywhere you listen.
15:18Chris Strohm:This is nothing more than a continuation of the president's desperate weaponization of our justice system.
15:25Paul Callan:New York Attorney General Letitia James was indicted in a mortgage fraud case on Thursday, making her the second of President Trump's perceived political enemies to be criminally charged in the Eastern District of Virginia in two weeks. James infuriated Trump by suing him and winning in a case alleging that he built his business empire on lies about his wealth. And the president had called for legal action against James, former FBI director James Comey, and Senator Adam Schiff in a message to Attorney General Pam Bondi on social media last month. James called the charges baseless and a blatant perversion of the justice system.
16:08Caroline Mala Corbin:The president's own public statements make clear that his only goal is political retribution at any cost.
16:16Paul Callan:Joining me is Bloomberg legal reporter Chris Strom. Chris, we've been hearing about this investigation into James for months. What are the two felonies they finally charged her with?
Read the full transcript
16:27Caroline Mala Corbin:So the government is alleging that James lied on one of her mortgage applications in which she said that one of her homes in Norfolk, Virginia, would be used as a secondary residence, but she was really renting it out. That's the allegation. And so they brought forward two charges, one for bank fraud and another for lying to a bank. So James says that these charges are baseless and she's going to contest them. The wild card here is that this was not the property that was under scrutiny for so long. This is another property. And James and her lawyer haven't really said what happened with this property.
17:08Paul Callan:Is a criminal case based on charges like these pretty rare?
17:14Caroline Mala Corbin:Mortgage fraud is a legitimate federal charge. It's usually charged as part of a larger criminal enterprise. What makes the situation with James unique is that the amount of money that is alleged to have been involved in the fraud is so minor. And current and former prosecutors say that the amount of money that's at issue here is so small that it wouldn't ever be brought as a standalone case. And so that's what makes the James indictment so unique is that she is alleged to have saved about$19 ,000 by listing her property as a secondary residence rather than a rental property. And the dollar amount of$19 ,000 in fraud is so small.
18:04Paul Callan:Let's talk about the backstory here, because the only signature on the indictment is that of the newly installed interim U.S. attorney for the Eastern District of Virginia, Lindsay Halligan, a former Trump aide who was put into the role a few weeks ago after Trump forced out her predecessor. And in an unusual move, she personally presented the cases against James and Comey to the grand jury. That's something that U.S. attorneys don't usually do.
18:36Caroline Mala Corbin:Yeah, the other thing that's really unique about this case is that there was a U.S. attorney who said that this case should never have been brought forward. And he was facing pressure to indict Letitia James as well as James Comey. And he resigned. He had made it clear that after looking over all of the documentation, that there wasn't sufficient evidence to bring a case against Letitia James or James Comey. But he was facing pressure from the White House and from Trump officials inside the Justice Department. And he made the decision to resign. And then Trump appointed one of his top White House aides as the interim U.S.
19:16Caroline Mala Corbin:attorney. And so she just came into the position two weeks ago and has already brought two indictments against two people who Trump demanded be prosecuted. And she brought the indictment over the objections of the career people who work for the Eastern District of Virginia. And what's really interesting is that none of the career prosecutors who work for the Eastern District of Virginia signed on to either of the indictments against James or Comey. And it was only Halligan who presented these cases to the grand jury and signed the documentation.
19:53Paul Callan:And there are a lot of other similarities between the case against James and the case against Comey. And it appears that there'll be some similar defense motions to dismiss in both cases. Comey pleaded not guilty on Wednesday to charges that he lied to lawmakers and obstructed a congressional proceeding. You were in the courtroom for that arraignment, and Comey's defense attorney outlined some of the grounds they would use to try to get the charges dismissed.
20:21Caroline Mala Corbin:His attorney is Patrick Fitzgerald, who is a very well-known, very respected lawyer, former U.S. attorney for Chicago. And he made three main points that they are going to challenge that the case against Comey represents a vindictive prosecution and a selective prosecution, and that the appointment of the interim U.S. attorney who brought the charge was unlawful. And so they are going to move through those phases of challenges. And if they all fail, then they will go to a speedy trial.
21:01Paul Callan:We've talked about how unusual Halligan's appointment was. But why does Fitzgerald say it was unlawful?
21:10Caroline Mala Corbin:The objection is that she was not a Justice Department official before she was appointed. There are certain rules that have to be followed when you are appointing a temporary position within the Justice Department. And U.S. attorneys need to be Senate confirmed or they need to be given the appointment by federal judges. It's allowed to have a temporary appointment, but the temporary appointment must be somebody who comes from within the Justice Department, which Lindsay Halligan does not.
21:43Paul Callan:So that's interesting because if the judge threw out the indictment because she was not a legal appointee, I mean, the statute of limitations has run. They wouldn't be able to bring the charges against him again. Correct.
21:57Caroline Mala Corbin:The case would be completely dropped and there would be no ability to bring it back. You know, the only caveat is these are hard motions to win. Generally, judges are hesitant to throw out cases that grand juries have returned. So the defense does face some obstacles to being able to do it. But the rules of how U.S. attorneys are appointed and what they can actually do raise legitimate questions for the defense to challenge the appointment of Halligan.
22:23Paul Callan:And Letitia James could also use that argument, although since there's no statute of limitations problem in her case, prosecutors could just refile the charges against her. And it does seem like they would have similar grounds to dismiss on vindictive or selective prosecution. Yes.
22:42Caroline Mala Corbin:James has already said she's going to allege that this is a selective and vindictive prosecution. She's going to rely on many statements that Trump has made calling for her to be indicted, including social media posts that Trump made last month where he basically directed Attorney General Pam Bondi to indict James, Comey, and Adam Schiff. And so that will be one of the primary pieces of evidence that her defense will use to say this was a vindictive and selective prosecution.
23:15Paul Callan:James is going to be arraigned on October 24th, so we might learn more about her case at that time. And you did learn at Comey's arraignment that they haven't been given any additional details about the charges?
23:28Caroline Mala Corbin:Specifically, the defense wants to know who Comey authorized to provide information and what information that person provided and who it related to. In the indictment, it says that Comey authorized person three to provide information about person one. It's pretty clear from everything we know that person one is actually Hillary Clinton, but what's not clear is who is person three that actually provided the information. And Comey's defense is saying that to this date, they still have not been told specifically the details of the indictment, which they need to know in order to mount their defense.
24:07Paul Callan:The judge said this doesn't appear to be an overly complicated case. I mean, they can certainly give Comey the name of the people in the indictment. I mean, that seems bare minimum.
24:18Caroline Mala Corbin:Yeah, it was surprising that the government had not already provided Comey and his lawyers with just the basic information of who they allege Comey authorized to leak information. And it really speaks to how unusual this case, you know, has been from the start and how there might be a problem with the ability of the new U.S. attorney to manage this prosecution.
24:47Paul Callan:And speaking to that, the two prosecutors who have signed on to handle the case are both based in North Carolina, as opposed to the Eastern District of Virginia, where the case is taking place?
24:59Caroline Mala Corbin:Yep. It's our understanding that most of the career officials in the U.S. Attorney's Office for the Eastern District of Virginia looked at the case and determined that there wasn't sufficient evidence to bring a case or go to the grand jury and get an indictment. And so none of them are willing to sign on to this case. And the new U.S. attorney, who has never prosecuted a case before, then had to bring in, you know, assistant U.S. attorneys from another office in order to appear in court.
25:31Paul Callan:I don't know if I've ever heard of anything like that happening before.
25:34Caroline Mala Corbin:I haven't.
25:35Paul Callan:And another surprise for the defense, there's classified information involved in the case.
25:40Caroline Mala Corbin:So the new wrinkle was that the prosecution said that there's a large amount of discovery material that they have to sort through, which includes classified information. Up until now, we had never heard them say that there is a trove of classified information. And that could complicate the ability of the case to move forward and also Comey to mount his defense, because the government needs to work out a process by which classified information can be shared with Comey's defense team or provided to the judge under seal. And I think everybody was surprised when the prosecution said that they have classified information that they need to sort through.
26:28Caroline Mala Corbin:And the judge quickly said he does not intend to have a long delay, if any delay, as a result of needing to deal with classified information. The judge basically ordered the prosecution team to get their act together.
26:45Paul Callan:Well, the judge has set the trial date for January 5th. We'll see if he can keep things moving. Thanks, Chris. That's Bloomberg Legal Reporter Chris Strom. This message is brought to you by Apple Card. Apple Card lets you earn daily cash back on every purchase, every day. Applying the Wallet app on iPhone today. Subject to credit approval, Apple Card is issued by Goldman Sachs Bank USA Salt Lake City Branch. Terms and more at applecard.com. The Bloomberg Sustainable Business Summit returns to Singapore on July 22nd. Our fifth annual Asia-Pacific Summit will explore how business and finance leaders are shaping the next phase of globalization by strengthening resilience and driving a multi-speed energy transition across Asia's diverse markets.
27:27Paul Callan:Join us for solutions-driven discussions and networking opportunities. Thank you to our summit advisor, Bangkok Bank. Learn more at BloombergLive.com slash SBS dash Singapore. It's the most difficult decision a criminal defendant has to make at trial, whether or not to take the stand. And when a defendant decides to take the risk of testifying, what role does his attorney play? David Villarreal took the stand during his trial in 2018 for murdering his boyfriend. But when there was an overnight break in his testimony, the judge barred Villarreal's attorney from discussing his testimony with him.
28:09Paul Callan:He was convicted, and in his appeal to the Supreme Court, Villarreal argues that the judge's order denied him effective assistance of counsel in violation of the Sixth Amendment. During the oral arguments, the justices questioned just what a trial lawyer could talk to his client about during an overnight break in his testimony without crossing over into coaching the client's testimony. Chief Justice John Roberts posed a hypothetical to the lawyer for Texas about a defendant asking his attorney whether he should stop testifying about Fred when he got back on the stand.
28:47Caroline Mala Corbin:And I notice every time I do that, you know, juror number eight gets a big frown and shakes his head. He doesn't look to me like he likes the idea of talking about Fred at all. So I think that's a bad idea. Now, talking about Fred was your idea. Do you still think it's a good idea? Can the lawyer respond to that question? No. They would have to tell them I'm under a court order not to answer that. So at that point he tells the defendant who's facing a capital sentence, I'm not going to tell you.
29:16Paul Callan:And Justice Elena Kagan wanted to know about a lawyer giving his client some tips on his performance on the stand. Do you think that counsel can say, listen, I've been noticing that you've been mumbling
29:30Chris Strohm:and you're also not making eye contact with the questioner.
29:36Paul Callan:and it would just be a good idea if you stopped mumbling and made eye contact. Can the lawyer do that in an overnight recess? The appeals courts are split on whether so-called non-conferral orders during overnight trial recesses are constitutional. Joining me is former Manhattan prosecutor and criminal defense attorney Paul Callen of counsel at Edelman & Edelman. Paul, tell us about the facts here.
30:02Caroline Mala Corbin:The defendant David Villarreal was a meth addict, allegedly, who stabbed his boyfriend to death. And he goes to trial and something happened in that trial. And it's something that's very common in the trial of civil and criminal cases. And that is he was on the witness stand testifying and the judge decided to break for the day. It was about one o 'clock in the afternoon. And the judge gave an instruction which suggested that the defense attorney should not discuss testimony overnight with his client because he was on the witness stand. And later on, he's convicted, sentenced to 60 years in prison.
30:43Caroline Mala Corbin:And now he's seeking to reverse the case, saying that instruction impeded his right to consult with counsel pursuant to the Sixth Amendment.
30:51Paul Callan:So there was a lot of talk during the oral arguments about coaching your client. Is there a clear line between what's permissible and what's impermissible when coaching a client or preparing a client to testify?
31:06Caroline Mala Corbin:Well, there's a line you cross and we call it subbernation of perjury. If a lawyer goes too far in giving advice to his client about how he should shape his testimony. And so lawyers always have to deal with this situation that they can't give advice that would constitute subbernation of perjury. lawyers do. And it's their job to give a client advice, though, about how to testify on a witness stand, how to conduct themselves on the witness stand, how to react if there's an objection made in court, all kinds of technical aspects of testimony like that. Clearly, lawyers are allowed to give that kind of advice.
31:44Caroline Mala Corbin:But this is the situation that comes up all the time in both civil and criminal cases when there's a recess in the case. The client wants to talk to the lawyer, how am I doing? Am I doing okay on the witness stand? And the lawyer wants to encourage them and say, yes, yes, you're doing great. Or no, that was a stupid answer you gave. Try to listen to the questions that are being asked. So there are a variety of ways that lawyers approach this thing. So the courts really have gone back and forth on it. There are some court decisions saying that during the course of testimony, if there's a brief recess, 15, 20 minute recess, you can talk to your client, but you shouldn't discuss testimony during that time period.
32:24Caroline Mala Corbin:When there's a long adjournment, like overnight, then it gets really tricky because really most lawyers think they shouldn't be discussing testimony with the client, but there may be other things that have to be discussed. Should I recommend a plea because the testimony is going so badly? Should I tell the witness that if he's going to stick with this kind of a story, we need another witness? Maybe he's got a friend who was refusing to testify. But now you say, you know, he's got to come in and testify given the way your testimony is going. So there's sort of an interreaction between testimony and even testimony that you're not trying to shape and how it affects other aspects of the case as the case proceeds.
33:04Caroline Mala Corbin:So this is a really tricky question for lawyers. And this will be a closely watched case.
33:09Paul Callan:Some of the justices seem to be leaning toward a type of limited instruction where the lawyer is prohibited from directly discussing the testimony with the client during an overnight break, but is allowed to discuss broader trial strategies and issues that relate to testimony. And Villarreal's attorney argued that that rule is unworkable in the real world. And Justice Sonia Sotomayor gave an example of a lawyer suggesting that a client take a plea in the middle of his testimony. that showed why it's unworkable. I find it impossible for a lawyer to say,
33:50Caroline Mala Corbin:I think you should consider a plea bargain now, and that the defendant is not going to say, but why? And the why has to be my considered judgment. That gets me from here to the corner and back with nobody paying me, okay? You need to say something. the model rule says a lawyer shall explain a matter to the extent reasonably necessary to make an informed decision.
34:18Paul Callan:I mean, it's very hard to draw a line in these circumstances.
34:24Caroline Mala Corbin:Yes, Villarreal's lawyer made a very compelling argument in that regard, because so much of the client's testimony, I mean, if you put a defendant on the witness stand in a criminal case, His testimony is now the key evidence of the entire case. And if it triggers problems that may cause you as a lawyer to have to go out and get another witness or maybe bring in some kind of an expert because he's raised something about the impossibility of how a bullet was fired or was aimed when the murderous shot was fired or the stab wound, it would be in this case. Yeah, the testimony interacts from the legal standpoint with all of the evidence in the case.
35:02Caroline Mala Corbin:So you restrict the lawyer's ability to talk to the client. You can't just keep it down to the testimony alone. Everything interacts with everything else. That's what Bill and the way of his lawyers are arguing.
35:14Paul Callan:Justice Elena Kagan asked this of Texas's lawyer. Do you think that counsel can say, listen, I've been noticing that you've been mumbling and you're also not making eye contact with the questioner, and it would just be a good idea if you'd stop mumbling and made eye contact? Can the lawyer do that in an overnight recess? Texas's attorney said, no, I would consider that to be coaching their testimony as far as how you present yourself to the jury. Of course, he's defending the conviction for Texas. So he's coming at the question from a different angle. But do you think that would be coaching?
35:51Caroline Mala Corbin:Well, whether it's coaching or not, I don't know. It probably is coaching. But that kind of coaching is exactly what you get hired to do as a lawyer, to school your client in how he can present his truthful testimony in the best way possible to the jury. And I think most lawyers view this situation where a client is on the witness stand that they will not often tamper with the content of the testimony in their discussions with the client. But they may say, listen, stop looking down. It's making you look guilty. Look at the guy who's asking you the question. And it's OK to glance over at the jurors from time to time with your head up.
36:32Caroline Mala Corbin:And I mean, this just has to do with presentation of the testimony to the jury as opposed to the truth or falsity of the testimony. And I think that's perfectly proper, that kind of instruction to a client during testimony.
36:45Paul Callan:Of course, you can never tell for sure from oral arguments how the justices will rule. But it seemed to me that the defendant didn't have five votes, that a majority of the justices were skeptical that not being able to talk to his counsel about his testimony during the overnight break violated his constitutional rights.
37:08Caroline Mala Corbin:Well, I'll tell you, June, my suspicion is maybe they just want to stay away from the whole thing because I suspect that the truth of the matter is there's nobody in that room at night when the lawyer is discussing the testimony with the client. and this rule is a really hard rule to enforce. I suppose you might have a lot more appeals in cases from defendants who would say, I was on the stand and I needed advice and the lawyer refused to talk to me and that's why I've been convicted, you know, what Bill Rial is saying. So it's a touchy subject and it'll be interesting to see how the court rules on this thing.
37:47Caroline Mala Corbin:Trial lawyers across the country will be watching very, very carefully because there are lots of disputes. It happens in civil cases too during depositions. You know, you have a civil case and the guy's being deposed and then they want to take a break and the lawyer says, well, don't talk to him during the break. And the lawyer says, well, you have no right to restrict what I can say to my client during the break. And I've seen fights among lawyers, oral arguments among lawyers at depositions about this very subject. So this one will spill over into civil practice as well, I think, if they make a definitive ruling on the issue.
38:19Paul Callan:Is there an ethical rule that you shouldn't talk to your client during a break in testimony?
38:25Caroline Mala Corbin:There are no ethical rules about it other than, of course, a lawyer cannot suborn perjury. So if you're giving the client advice, you know, he was serving, say, self-defense in a case. And he tells you a story in which he's not under threat from the person he killed at all. and you say to him, well, you know, it would help if you thought he was trying to strangle you when you pulled out the knife and started stabbing him. Well, that would be unethical. You're suborning perjury. You're telling him, tell a lie. Say that you were in fear of your life. That's why you killed him. So, you know, those are the only ethical rules that apply.
39:02Caroline Mala Corbin:In terms of shaping testimony by saying, be more polite, you know, you're yelling at the prosecutor, don't do that. It makes you look aggressive and bad. I'm talking about stylistic questions and advice from the attorney. You know, I think that's something that all lawyers do to a certain extent with clients, and it's probably okay. As a matter of fact, the courts may like it because if you get a long-winded client, it won't give you a straight answer to a question. A lot of times the judges are quite happy if the client listens carefully to the question and answers it succinctly, as opposed to wandering around and telling all of these lengthy stories, which, by the way, just open up new avenues of cross-examination for the prosecutor.
39:42Caroline Mala Corbin:You know, clients testifying is one of the most complex issues of criminal law and always will be.
39:47Paul Callan:And only Justice Ketanji Brown Jackson was a criminal defense lawyer who might have faced some of these problems with a client testifying. She was an assistant public defender in D.C. Justice Sonia Sotomayor is the only other trial lawyer on the court. And she was a Manhattan district attorney like you, Paul. Thanks so much for joining me today. That's Paul Callen, former Manhattan prosecutor and criminal defense attorney. 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.bloomberg.com slash podcast slash law.
40:29Paul Callan:And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.
41:07Paul Callan:Subscribe to Stock Movers today on Apple, Spotify, or anywhere else you listen.
From the publisher
First Amendment expert Caroline Mala Corbin, a professor at the University of Miami Law School, discusses the Supreme Court’s oral arguments over Colorado’s ban on conversion therapy. Chris Strohm. Bloomberg legal reporter, discusses the indictment of New York Attorney General Letitia James and former FBI Director James Comey. Former Manhattan prosecutor and criminal defense attorney Paul Callan, of counsel at Edelman & Edelman, discusses Supreme Court oral arguments over whether a lawyer can discuss his client’s testimony during an overnight break in the testimony. June Grasso hosts.
See omnystudio.com/listener for privacy information.