# Are Boat Strikes Legal & Right to Counsel

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 8 Oct 2025, 33 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/00a55698-4570-43da-8da4-b370001aa090/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

National security law expert Matthew Waxman, a professor at Columbia Law School, discusses the Trump administration’s strikes on alleged Venezuelan drug boats. 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.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grosse from Bloomberg Radio.
[0:09] Speaker 2: Venezuelan President Nicholas Maduro said he's asked Pope Leo the
[0:14] Speaker 2: fourteenth to help maintain peace in the South American country.
[0:18] Speaker 2: Maduro's comments come as the United States military continues to
[0:23] Speaker 2: strike alleged drug carrying boats in the waters off Venezuela,
[0:27] Speaker 2: in what President Donald Trump has declared an armed conflict
[0:31] Speaker 2: with cartels.
[0:33] Speaker 3: We're blowing the Venezuelan narco terrorists. We're blowing them the
[0:37] Speaker 3: hell out of the water.
[0:38] Speaker 4: Every time you see a.
[0:39] Speaker 5: Boat, thousands of people die from the cargo in that boat.
[0:43] Speaker 3: Thousands of people die.
[0:45] Speaker 2: The US military has carried out four deadly strikes in
[0:49] Speaker 2: the Caribbean since last month. The latest killed four people
[0:53] Speaker 2: on Friday. The Trump administration has told lawmakers the president
[0:57] Speaker 2: is treating drug traffickers as unlow combatants and military force
[1:03] Speaker 2: was required to combat them. That assertion of presidential war
[1:07] Speaker 2: powers sets the stage for expanded action and raises questions
[1:12] Speaker 2: about how far the administration will go without a sign
[1:15] Speaker 2: off from Congress. My guest is an expert on national
[1:19] Speaker 2: security and the law of armed conflict. Matthew Waxman, a
[1:23] Speaker 2: professor at Columbia Law School. Why has President Trump labeled
[1:28] Speaker 2: the drug runners as a foreign terrorist organization and call
[1:32] Speaker 2: them narco terrorists?
[1:34] Speaker 1: So, I think it makes sense to think about the
[1:36] Speaker 1: Trump administration's actions as an escalating series of legal moves.
[1:43] Speaker 1: It had designated some cartels as foreign terrorist organizations or
[1:49] Speaker 1: ftos that unlocks certain criminal law, immigration, and sanctions authorities.
[1:57] Speaker 1: It invoked an ancient law going back to seventeen ninety
[2:01] Speaker 1: eight that authorizes the swift removal from the United States
[2:06] Speaker 1: of enemy aliens quote enemy aliens as the term, and
[2:10] Speaker 1: it applied that to suspected members of Trend de Arragua.
[2:15] Speaker 1: It's used lethal force against Trend Dearragua drug vessels or
[2:21] Speaker 1: suspected vessels in the Caribbean, claiming that these were done
[2:26] Speaker 1: in self defense. And then, most dramatically of all, the
[2:31] Speaker 1: Trump administration has labeled its conflict with certain international drug
[2:37] Speaker 1: cartels as a quote armed conflict, which is a legal
[2:42] Speaker 1: state of war. And one of the most significant implications
[2:46] Speaker 1: of that declaration is that it would justify using lethal
[2:52] Speaker 1: force against cartel members, essentially treating them all as enemy soldiers. Now,
[2:58] Speaker 1: the Trump administration has provided very little information, so we
[3:02] Speaker 1: still don't really know how far the Trump administration is
[3:06] Speaker 1: stretching that theory. But the basic gist is that the
[3:11] Speaker 1: Trump administration is saying that the United States is, as
[3:15] Speaker 1: a legal matter, in a war with drug cartels, and
[3:18] Speaker 1: therefore it can target their members, just like the United
[3:23] Speaker 1: States could target enemy soldiers.
[3:26] Speaker 2: As far as saying this is being done in self defense,
[3:29] Speaker 2: Senator Ran Paul of Kentucky challenged that. He said the
[3:34] Speaker 2: US has the right to self defense, but argued that
[3:36] Speaker 2: right is not triggered by a speedboat twenty seven hundred
[3:40] Speaker 2: miles from the US alleged to have drugs and not
[3:44] Speaker 2: attacking US vessels. And Secretary Hegsith, when he described the
[3:50] Speaker 2: latest strike, said they were bringing drugs. So where is
[3:54] Speaker 2: the element of self defense here?
[3:57] Speaker 5: Yeah?
[3:57] Speaker 1: I think there are two problems with the self defense argument.
[4:02] Speaker 1: The first is that, as a legal matter, self defense
[4:05] Speaker 1: usually requires that either you've already been attacked or an
[4:09] Speaker 1: attack is imminent. Right, if a missile were headed towards
[4:14] Speaker 1: the United States or an enemy aircraft, you could take
[4:19] Speaker 1: some self defensive action when it was about to attack US.
[4:24] Speaker 1: But here we're talking about vessels that were far out
[4:27] Speaker 1: at the In fact, the Trump administration has even conceded
[4:33] Speaker 1: that they were distant from the United States. They could
[4:37] Speaker 1: have been interdicted, but the Trump administration decided to use
[4:42] Speaker 1: self defensive lethal force instead. I think a second problem
[4:47] Speaker 1: with claiming self defense is that usually it would require
[4:53] Speaker 1: that a violent attack be directed against the United States,
[5:00] Speaker 1: and it has to be essentially the use of military
[5:04] Speaker 1: violence against the United States. And here we're talking about
[5:08] Speaker 1: the infiltration of violent gangs. We're talking about the infiltration
[5:14] Speaker 1: of very, very dangerous narcotics. But that's different, that's a
[5:20] Speaker 1: very different kind of harm than the kind of kinetic
[5:25] Speaker 1: military violence that traditionally gives rise to a right of
[5:29] Speaker 1: self defense.
[5:30] Speaker 2: I mean, who would actually sue the United States in
[5:34] Speaker 2: this situation? Would anyone have standing to sue and say
[5:38] Speaker 2: these strikes are against the law?
[5:40] Speaker 4: Maybe?
[5:41] Speaker 1: I mean, this is a general challenge with international law
[5:44] Speaker 1: is that in most cases there is not some centralized
[5:50] Speaker 1: authoritative enforcement mechanism. International laws tends to be enforced in
[5:56] Speaker 1: this sort of a decentralized way, and often it's the
[6:00] Speaker 1: responsibility of states to hold other states responsible. It's possible
[6:07] Speaker 1: that there could be litigation here. I've heard chatter about,
[6:12] Speaker 1: for example, an international court getting involved. I think that
[6:15] Speaker 1: is very unlikely and would have virtually no effect at
[6:20] Speaker 1: all on US actions. It's possible that there might be
[6:26] Speaker 1: litigation here in the United States, but that's going to
[6:29] Speaker 1: be hard, especially because those who you might expect to
[6:32] Speaker 1: have a case against the United States are already dead.
[6:36] Speaker 1: I think where one might see some enforcement, and I
[6:41] Speaker 1: would put the word enforcement in quotes here is from
[6:45] Speaker 1: US partners and allies that international law tends to play
[6:50] Speaker 1: an important role in facilitating cooperation among states, and that
[6:56] Speaker 1: kind of cooperation is especially important to stemming the drug trade,
[7:00] Speaker 1: to promoting US interests in the hemisphere. And so one
[7:03] Speaker 1: thing I'll be watching for is the extent to which
[7:08] Speaker 1: partners and allies in the region and further abroad are
[7:13] Speaker 1: sort of pushing back and imposing some diplomatic or political
[7:18] Speaker 1: costs on what the United States is doing here.
[7:22] Speaker 2: Also, the Trump administration is bulking up in the Southern
[7:27] Speaker 2: Caribbean with at least eight warships, one nuclear submarine, more
[7:32] Speaker 2: than four thousand troops, fighter jets, drones, and surveillance plans.
[7:36] Speaker 2: It's been called the biggest US naval mobilization in Latin
[7:39] Speaker 2: America since the invasion of Panama in nineteen eighty nine,
[7:43] Speaker 2: and Corina Bloomberg sources. Trump has hinted that the US
[7:49] Speaker 2: is going to turn to interrupting the flow of drugs
[7:53] Speaker 2: on land in Venezuela. How much of a step up
[7:57] Speaker 2: is that and where do they get the authority for that?
[8:00] Speaker 1: Yeah, that would be a major escalation and would pose
[8:05] Speaker 1: additional legal problems. And it raises additional legal issues because
[8:10] Speaker 1: the United Nations Charter prohibits the use of military force
[8:15] Speaker 1: against the territorial integrity of UN member states. That's one
[8:20] Speaker 1: of the kind of bedrock ideas in the UN Charter.
[8:26] Speaker 1: And so unless another state consents to the use of
[8:31] Speaker 1: US military force on their territory, the United States would
[8:34] Speaker 1: need to sug justify doing so. And I suppose the
[8:39] Speaker 1: best theory, the best argument would be either that Venezuela
[8:45] Speaker 1: itself has attacked the United States. We haven't really seen
[8:51] Speaker 1: any evidence of that. In fact, I think the best
[8:54] Speaker 1: indication of what the intelligence community has been reporting is
[8:58] Speaker 1: that the Venezuela and government has not been directing attacks
[9:03] Speaker 1: against the United States. Another argument, though, might be that
[9:07] Speaker 1: the government of Venezuela has been unwilling or unable to
[9:13] Speaker 1: stem the flow of drugs from its own territory headed
[9:17] Speaker 1: towards the United States. I think that's probably what the
[9:21] Speaker 1: Trump administration would argue. There Again, you come back to
[9:25] Speaker 1: this problem though, that under international law there's a right
[9:29] Speaker 1: of self defense against military attacks, so called armed attacks,
[9:35] Speaker 1: but there isn't a right of self defense against other
[9:40] Speaker 1: kinds of harms. They could be environmental harms, they could
[9:44] Speaker 1: be dangerous drugs, they could be ransomware. There are lots
[9:50] Speaker 1: of harmful activities that cross borders. International law does not
[9:56] Speaker 1: recognize a right of armed self defense against those harms.
[10:01] Speaker 1: The right of self defense is really limited to armed attacks.
[10:06] Speaker 2: Where does it fit in or how does it complicate?
[10:09] Speaker 2: Matters that the Trump administration has called President Maduro and
[10:13] Speaker 2: narco terrorists whose orchestrated drug trafficking, and the US has
[10:19] Speaker 2: offered fifty million dollars for information leading to his arrest.
[10:24] Speaker 4: Yeah.
[10:24] Speaker 1: You know, one challenge here for lawyers and those who
[10:28] Speaker 1: are trying to analyze the situation is it's very hard
[10:32] Speaker 1: to distinguish between administration rhetoric and administration sort of public
[10:38] Speaker 1: posturing and its actual legal arguments. The administration has said
[10:42] Speaker 1: very very little about its legal theory. It's said very
[10:47] Speaker 1: little about the facts that would support its claims of
[10:52] Speaker 1: self defense that would underlie this claim that the United
[10:56] Speaker 1: States is engaged in an armed conflict. And until we
[10:59] Speaker 1: have more of those facts, until we have greater clarity
[11:03] Speaker 1: on what the Trump administration is arguing, it's very difficult
[11:08] Speaker 1: to draw much in the way of conclusions. I think
[11:11] Speaker 1: the Trump administration is making an error in not being
[11:15] Speaker 1: more forthcoming. I think it's incumbent on the United States
[11:20] Speaker 1: to make clear its legal justifications, especially when it comes
[11:25] Speaker 1: to military actions abroad, and I think it's undermining any
[11:31] Speaker 1: chance it has to try to persuade partners, allies, other states,
[11:36] Speaker 1: other actors of the legitimacy of its actions by being
[11:40] Speaker 1: so opaqued in its legal arguments, so opaqued in the
[11:46] Speaker 1: basic facts that it's basing its actions on.
[11:50] Speaker 2: Coming up next, where a linked memo fits in this
[11:53] Speaker 2: is Bloomberg. The US military has carried out four deadly
[11:59] Speaker 2: strikes against alleged drug carrying votes in the waters off Venezuela,
[12:04] Speaker 2: in what President Trump has declared an armed conflict with cartels.
[12:09] Speaker 2: The Trump administration has told lawmakers the President is treating
[12:13] Speaker 2: drug traffickers as unlawful combatants and military force was required
[12:18] Speaker 2: to combat them. I've been talking to Columbia Law School
[12:22] Speaker 2: professor Matthew Waxman. What's the import of that leaked memo
[12:26] Speaker 2: that the Trump administration sent to Congress saying that the
[12:30] Speaker 2: government had decided it was in a non international armed
[12:34] Speaker 2: conflict with the designated terrorist groups from Venezuela.
[12:40] Speaker 1: That, as far as I know, the most extensive explanation
[12:45] Speaker 1: of its legal arguments. And I think it's telling that
[12:49] Speaker 1: we only know about it because it was leaked and
[12:52] Speaker 1: then reported I leave first in the New York Times.
[12:55] Speaker 1: And that's an example of where I think it would
[12:58] Speaker 1: behoove the Trump administration to at least explain publicly its actions.
[13:04] Speaker 1: I think that's would not only be the smart thing
[13:07] Speaker 1: to do from a policy and legal standpoint, but I
[13:11] Speaker 1: think it's also the right thing to do in a
[13:14] Speaker 1: rule of law democracy. While I'm critical here of the
[13:19] Speaker 1: Trump Administration's legal claims, I don't want to cast any
[13:24] Speaker 1: doubt on the grave harms that narcotics trafficking is causing
[13:30] Speaker 1: here in the United States, untold numbers of death, violent crime,
[13:37] Speaker 1: and we are talking about narcotics traffickers who do reeld
[13:42] Speaker 1: violence in a very brutal way, not against the United
[13:47] Speaker 1: States government, but against individuals, and it is a problem
[13:54] Speaker 1: that is a tragic one. The Trump administration is right
[13:58] Speaker 1: to take very very aggressive actions to try to stem
[14:04] Speaker 1: the tide of narcotics trafficking, especially coming across our southern border.
[14:10] Speaker 1: But there are some deep legal problems, or at least
[14:16] Speaker 1: big question marks about some of the specific methods it's
[14:21] Speaker 1: been using and the way it's tried to justify them.
[14:25] Speaker 2: What do you think will come from Trump designating Antifa
[14:30] Speaker 2: as a major terrorist organization?
[14:33] Speaker 1: Well, that's different for a couple of reasons. One is
[14:37] Speaker 1: that's just not a thing in law. There are statutes
[14:41] Speaker 1: that create a designation of a foreign terrorist organization and
[14:46] Speaker 1: that carries some legal consequences. There is no parallel for
[14:52] Speaker 1: what one might label domestic terrorist organizations, and I think
[14:57] Speaker 1: the Antifa case shows one reason why, which is very
[15:04] Speaker 1: susceptible to politicization how one labels a domestic group or
[15:10] Speaker 1: a domestic political movement. And one thing that I think
[15:16] Speaker 1: would be especially damaging to the political process here within
[15:21] Speaker 1: the United States would be the use of terrorist designation
[15:27] Speaker 1: to try to go after political enemies. And I'm not
[15:31] Speaker 1: making a judgment here about Antifa and what it is
[15:36] Speaker 1: or isn't. I'm just saying that I think there are
[15:39] Speaker 1: good reasons why the United States government has created such
[15:44] Speaker 1: a category of foreign terrorist organizations but not taken a
[15:50] Speaker 1: parallel step in the past for domestic terrorist organizations. Are
[15:55] Speaker 1: so called domestic terrorist organizations.
[15:58] Speaker 2: Do you think that the president having broad latitude and
[16:01] Speaker 2: matters of national security and determining what that is would
[16:06] Speaker 2: play in here if this was somehow challenged.
[16:10] Speaker 1: I think it would. But you know, historically, the president
[16:15] Speaker 1: has had a lot of flexibility to determine threats to
[16:22] Speaker 1: the US national security, national defense, and I think there
[16:26] Speaker 1: are good reasons for that. The presidents of the United
[16:29] Speaker 1: States has the power of the agility to act quickly.
[16:33] Speaker 1: The president has access to valuable information to try to
[16:39] Speaker 1: make those kinds of assessments. But deferring to the executive
[16:44] Speaker 1: branch to the president on these kinds of matters has
[16:47] Speaker 1: always carried a big danger, which is the president might overreach,
[16:54] Speaker 1: the president might abuse those powers. And this has been
[16:58] Speaker 1: a challenge since the the birth of the republic. And
[17:02] Speaker 1: I think one thing we're seeing from the Trump administration
[17:06] Speaker 1: is really the worst kind of overreach across a range
[17:12] Speaker 1: of issues, and so I think it's calling into big
[17:18] Speaker 1: doubt whether the system of checks and balances that we've
[17:22] Speaker 1: relied on really are continuing to function in the Trump era.
[17:28] Speaker 2: That's a question that many have asked recently. Thanks so much, Matthew.
[17:33] Speaker 2: That's Professor Matthew Waxman of Columbia Law School, turning now
[17:37] Speaker 2: to other legal news. It's the most difficult decision a
[17:41] Speaker 2: criminal defendant has to make a trial, whether or not
[17:44] Speaker 2: to take the stand. And when a defendant does decide
[17:48] Speaker 2: to take the risk of testifying, how can his attorney
[17:51] Speaker 2: advise him during that testimony. That question was at the
[17:55] Speaker 2: heart of oral arguments before the Supreme Court on the
[17:59] Speaker 2: first the term. David Villarreal took the stand during his
[18:03] Speaker 2: trial for murdering his boyfriend. When there was an overnight
[18:07] Speaker 2: break in his testimony, the judge barred Villarrial's attorney from
[18:12] Speaker 2: discussing his testimony with him. Villarreal was convicted and sentenced
[18:16] Speaker 2: to sixty years, but he says that his constitutional right
[18:20] Speaker 2: to counsel was violated by the judge's order, and he's
[18:24] Speaker 2: asking the Supreme Court to overturn his conviction. During the
[18:28] Speaker 2: oral arguments, the justices questioned just what kind of broader
[18:33] Speaker 2: trial strategies a lawyer could talk to his client about
[18:37] Speaker 2: during an overnight break without crossing over into coaching the
[18:41] Speaker 2: client's testimony. Chief Justice John Roberts posed a hypothetical to
[18:46] Speaker 2: the lawyer for the State of Texas about a defendant
[18:50] Speaker 2: asking his attorney whether he should stop testifying about Fred
[18:54] Speaker 2: when he got back on the stand.
[18:57] Speaker 4: And I noticed every time I do that, jur number
[19:00] Speaker 4: eight gets a big frown and shakes his head. He
[19:03] Speaker 4: doesn't look to me like he likes the idea of
[19:05] Speaker 4: talking about Fred at all. So I think that's a
[19:08] Speaker 4: bad idea. Now talking about Fred was your idea? Do
[19:11] Speaker 4: you still think it's a good idea? Can the lawyer
[19:15] Speaker 4: respond to that question.
[19:17] Speaker 5: No, they you would have to tell them my mom
[19:20] Speaker 5: to a core order not to out to answer.
[19:22] Speaker 4: So at that point he tells the defendant, who's facing
[19:24] Speaker 4: a capital sentence, I'm not going to tell you. It's
[19:27] Speaker 4: a very simple thing. Don't talk about He's not saying
[19:30] Speaker 4: particular things, but let's stop talking about Fred whenever we can.
[19:34] Speaker 2: Just as Elena Kagan's hypothetical was more along the lines
[19:38] Speaker 2: of how the defendant performed during his testimony.
[19:42] Speaker 3: Do you think that counsel can say, listen, I've been
[19:47] Speaker 3: noticing that you've been mumbling, and you're also not making
[19:52] Speaker 3: eye contact with the questioner, And it would just be
[19:56] Speaker 3: a good idea if you stopped mumbling and made eye
[19:58] Speaker 3: contact the the lawyer do that and then overnight recess.
[20:02] Speaker 2: My guest is former Manhattan prosecutor and criminal defense attorney
[20:06] Speaker 2: Paul Callan of counsel at Edelman and Edelman. Paul tell
[20:10] Speaker 2: us about the facts here.
[20:12] Speaker 5: The defendant, David Villarreal, was a meth addict allegedly who
[20:17] Speaker 5: stabs his boyfriend to death, and he goes to trial,
[20:21] Speaker 5: and something happened in that trial, and it's something that's
[20:25] Speaker 5: very common in the trial of civil and criminal cases,
[20:29] Speaker 5: and that is he was on the witness stand testifying
[20:33] Speaker 5: and the judge decided to break for the day. It
[20:37] Speaker 5: was about one o'clock in the afternoon, and the judge
[20:41] Speaker 5: gave an instruction, which defense attorneys have said was a
[20:44] Speaker 5: limited instruction, which suggested that the defense attorney should not
[20:49] Speaker 5: discuss testimony overnight with his clients because he was on
[20:54] Speaker 5: the witness stand, and later on he's convicted, sentenced to
[20:58] Speaker 5: sixty years in prison, and now he's seeking to reverse
[21:02] Speaker 5: the case, saying that instruction impeded his right to consult
[21:06] Speaker 5: with counsel pursue to the sixth Amendment.
[21:09] Speaker 2: So there was a lot of talk during the oral
[21:11] Speaker 2: arguments about coaching your client, or somebody called it managing
[21:16] Speaker 2: your client's testimony. Is there a clear line between what's
[21:20] Speaker 2: permissible and what's impermissible when coaching a client or preparing
[21:26] Speaker 2: a client to testify.
[21:29] Speaker 5: Well, there's a line across and we call it subornation
[21:33] Speaker 5: of perjury if a lawyer goes too far in giving
[21:37] Speaker 5: advice to his client about how he should shape his testimony.
[21:41] Speaker 5: And so lawyers always have to deal with this situation
[21:45] Speaker 5: that they can't give advice that would constitute subornation of perjury.
[21:50] Speaker 5: Lawyers do, and it's their job to give a client
[21:53] Speaker 5: advice though about how to testify and a witness stand,
[21:56] Speaker 5: how to conduct himself on the witness stand, how to reactive.
[22:00] Speaker 5: There's an objection made in court all kinds of technical
[22:03] Speaker 5: aspects of testimony like that. Clearly lawyers are allowed to
[22:07] Speaker 5: give that kind of advice. But this is a situation
[22:10] Speaker 5: that comes up all the time in both civil and
[22:11] Speaker 5: criminal cases. When there's a recess in the case, the
[22:14] Speaker 5: client wants to talk to the lawyer how am I doing?
[22:17] Speaker 5: Am I doing okay on the witness stand, and the
[22:19] Speaker 5: lawyer wants to encourage them and say, yes, yes, you're
[22:22] Speaker 5: doing great, you know, or no, that was a stupid
[22:26] Speaker 5: answer you gave, you know, try to listen to the
[22:28] Speaker 5: questions that are being asked. So there are a variety
[22:31] Speaker 5: of ways that lawyers approach this thing, so the courts
[22:35] Speaker 5: really have gone back and forth on it. There are
[22:38] Speaker 5: some court decisions saying that during the course of testimony,
[22:42] Speaker 5: if there's a brief recess fifteen twenty minute recess, you
[22:46] Speaker 5: can talk to your client, but you shouldn't discuss testimony
[22:48] Speaker 5: during that time period. When there's a long adjournment like overnight,
[22:53] Speaker 5: then it gets really tricky because really most lawyers think
[22:56] Speaker 5: they shouldn't be discussing testimony with the client, But there
[23:01] Speaker 5: may be other things that have to be discussed. Should
[23:03] Speaker 5: I recommend a plead because the testimony is going so badly?
[23:07] Speaker 5: Should I tell the witness that if he's going to
[23:10] Speaker 5: stick with this kind of a story. We need another witness.
[23:13] Speaker 5: You know, maybe he's got a friend who was refusing
[23:15] Speaker 5: to testify, but now you say, you know, he's got
[23:18] Speaker 5: to come in and testify given the way your testimony
[23:20] Speaker 5: is going. So there's sort of an interreaction between testimony
[23:24] Speaker 5: and even testimony that you're not trying to shape, and
[23:28] Speaker 5: how it affects other aspects of the case as the
[23:31] Speaker 5: case proceeds. So this is a really tricky question for lawyers,
[23:35] Speaker 5: and this will be a closely watched case if the
[23:37] Speaker 5: Supreme Court hands down a clear decision on it. That
[23:41] Speaker 5: had been decisions in the past, but they've been sort
[23:44] Speaker 5: of vague, and they've kind of gone both ways in
[23:46] Speaker 5: terms of whether you can talk to a client while
[23:49] Speaker 5: he's on the stand.
[23:50] Speaker 2: Paul, the Justice has posed all kinds of hypotheticals of
[23:55] Speaker 2: what a lawyer might say to a client during an
[23:59] Speaker 2: extended and his testimony. Listen to the Chief Justice is
[24:03] Speaker 2: hypothetical and tell me what you think.
[24:06] Speaker 4: And the defendant says something like, counsel, you remember when
[24:10] Speaker 4: we were preparing for this, we both agreed we should
[24:13] Speaker 4: try to get the jury to focus on Fred and
[24:15] Speaker 4: whenever it's reasonable, I should mention Fred, and I've been
[24:19] Speaker 4: doing that, and I notice every time I do that,
[24:21] Speaker 4: you know, Jury number eight gets a big frown and
[24:24] Speaker 4: shakes his head. He doesn't look to me like he
[24:26] Speaker 4: likes the idea of talking about Fred at all. So
[24:29] Speaker 4: I think that's a bad idea. Now, talking about Fred
[24:32] Speaker 4: was your idea? Do you still think it's a good idea?
[24:36] Speaker 4: Can the lawyer respond to that question?
[24:39] Speaker 5: That's a tough one. That's a really tough one. And
[24:42] Speaker 5: as a matter of fact, that issue has come up
[24:45] Speaker 5: as these cases have been briefed by the various parties
[24:48] Speaker 5: because remember, the right to counsel in state cases only
[24:53] Speaker 5: really was reserved to the states as well as the
[24:55] Speaker 5: federal government in the fourteenth Amendment in the eighteen hundreds.
[24:59] Speaker 5: Before that time, the law was, it was all federal law,
[25:02] Speaker 5: and it was that you really could talk to your
[25:05] Speaker 5: client while he was on the witness stand. Now, sometimes
[25:08] Speaker 5: it was hard to do that because the clients were
[25:10] Speaker 5: kept in page in the middle of the courtroom, so
[25:13] Speaker 5: it would be very hard, you know, to send signals
[25:15] Speaker 5: to him during court recesses if he's you know, sitting
[25:19] Speaker 5: in a cell. Essentially that was a box in the
[25:22] Speaker 5: middle of the courtroom. That's how some colonial courts were
[25:24] Speaker 5: set up. So this really is an evolving case law.
[25:28] Speaker 5: After the Fourteenth Amendment applied the sixth Amendment to the States,
[25:33] Speaker 5: so and state courts and federal courts have gone in
[25:37] Speaker 5: different directions and a lot of respects on this. Some
[25:39] Speaker 5: of the state courts have said, it's okay, it's all right,
[25:41] Speaker 5: you have a constitucial right to confer with your client
[25:44] Speaker 5: at any point in time, and other courts have said,
[25:47] Speaker 5: no reasonable restrictions are acceptable with this.
[25:51] Speaker 2: Order of you know, you can talk to your client,
[25:54] Speaker 2: but you can't discuss directly discuss the testimony. And the
[25:57] Speaker 2: justices discussed this a lot because Yal's lawyer argued that
[26:02] Speaker 2: that no direct discussion of testimony rule is unworkable in
[26:06] Speaker 2: the real world because if you're discussing a plea agreement,
[26:10] Speaker 2: for example, because you think that your client did lousey
[26:13] Speaker 2: on the stand, and your client says, well, why should
[26:16] Speaker 2: I take a plea, that it's very hard to draw
[26:19] Speaker 2: a clear line in these cases.
[26:23] Speaker 5: Villaryal's lawyer made a very compelling argument in that regard
[26:26] Speaker 5: because so much of the client's testimony. I mean, if
[26:30] Speaker 5: you put a defendant on the witness stand in a
[26:32] Speaker 5: criminal case. His testimony is now the key evidence of
[26:36] Speaker 5: the entire case, and if it triggers problems, that may
[26:40] Speaker 5: cause you as a lawyer to have to go out
[26:42] Speaker 5: and get another witness or maybe bring in some kind
[26:46] Speaker 5: of an expert, because he's raised something about the impossibility
[26:50] Speaker 5: of how a bullet was fired or was aimed when
[26:52] Speaker 5: the murders shot was fired, or a stab wound it
[26:55] Speaker 5: would be in this case. Yeah, the testimony interacts, from
[26:59] Speaker 5: the legal standpoint, with all of the evidence in the case.
[27:02] Speaker 5: So you restrict the lawyer's ability to talk to the client.
[27:07] Speaker 5: You can't just keep it down to the testimony alone.
[27:09] Speaker 5: Everything interacts with everything else. That's what build in the
[27:12] Speaker 5: way his lawyers are arguing so that the conviction here
[27:15] Speaker 5: will be reversed.
[27:17] Speaker 2: Justice Elena Kagan asked this of Texas's lawyer. Do you
[27:22] Speaker 2: think that counsel can say, listen, I've been noticing that
[27:25] Speaker 2: you've been mumbling, and you're also not making eye contact
[27:28] Speaker 2: with the questioner, and it would just be a good
[27:31] Speaker 2: idea if you'd stop mumbling and made eye contact. Can
[27:34] Speaker 2: the lawyer do that in an overnight recess? And the
[27:38] Speaker 2: Texas's attorney said, no, I would consider that to be
[27:41] Speaker 2: coaching their testimony as far as how you present yourself
[27:45] Speaker 2: to the jury. Of course, he's arguing for Texas, so
[27:49] Speaker 2: his view is very limited about what should be said.
[27:53] Speaker 2: But do you think that that would be coaching.
[27:55] Speaker 5: Well, whether it's coaching or not, I don't know. It
[27:58] Speaker 5: probably is coaching, but in that kind of coaching is
[28:01] Speaker 5: exactly what you get hired to do as a lawyer,
[28:04] Speaker 5: to school your client in how he can present his
[28:08] Speaker 5: truthful testimony in the best way possible to the jury.
[28:12] Speaker 5: And I think most lawyers view this situation where a
[28:17] Speaker 5: client is on the witness stand that they will not
[28:20] Speaker 5: often hamper with the content of the testimony in their
[28:25] Speaker 5: discussions with the client, but they may say, listen, stop
[28:29] Speaker 5: looking down. It's making you look guilty. Look at a
[28:32] Speaker 5: guy who's asking you the question, and it's okay to
[28:35] Speaker 5: glance over at the jurors from time to time with
[28:38] Speaker 5: your head up. And I mean, this just has to
[28:40] Speaker 5: do with presentation of the testimony to the jury, as
[28:44] Speaker 5: opposed to the truth or falsity of the testimony. And
[28:47] Speaker 5: I think that's perfectly proper. That kind of instruction to
[28:51] Speaker 5: a client during testimony.
[28:52] Speaker 2: Of course, you can never tell for sure from oral
[28:55] Speaker 2: arguments how the justices will rule, but it seemed to
[28:59] Speaker 2: me like the defendant didn't have the votes here that
[29:04] Speaker 2: the majority of the justice is were skeptical that not
[29:08] Speaker 2: being able to talk to his counsel about his testimony
[29:12] Speaker 2: during the overnight break violated his constitutional rights.
[29:17] Speaker 5: Well, I'll tell you, And my suspicion is maybe they
[29:21] Speaker 5: just want to stay away from the whole thing, because
[29:24] Speaker 5: I suspect that the truth of the matter is there's
[29:27] Speaker 5: nobody in that room at night when the lawyer is
[29:30] Speaker 5: discussing the testimony with the client, and this rule is
[29:35] Speaker 5: a really hard rule to enforce. I suppose you might
[29:39] Speaker 5: have a lot more appeals in cases from defendants who
[29:43] Speaker 5: would say I was on the stand and I needed
[29:46] Speaker 5: advice and the lawyer refused to talk to me, and
[29:50] Speaker 5: that's why I've been convicted, you know what Philip Reality
[29:53] Speaker 5: is saying. So it's a touchy subject and it'll be
[29:57] Speaker 5: interesting to see how the court rules are this thing
[30:00] Speaker 5: case that trial lawyers across the country will be watching
[30:03] Speaker 5: very very carefully because there are lots of diffuse it
[30:07] Speaker 5: happens to the civil cases too. During depositions, you know, you're
[30:10] Speaker 5: you have a civil case and the guys being deposed
[30:13] Speaker 5: and then they wanted to take a break, and the
[30:16] Speaker 5: lawyer says, well, don't talk to him during the break.
[30:18] Speaker 5: And the lawyer says, well, you have no right to
[30:20] Speaker 5: restrict what I can say to my client during the break.
[30:22] Speaker 5: And I've seen fights among lawyers, oral arguments among lawyers
[30:26] Speaker 5: at depositions about this very subject. So this one will
[30:29] Speaker 5: spill over into civil practice as well. I think if
[30:32] Speaker 5: they make a definitive ruling on the issue, Paul, is it.
[30:36] Speaker 2: Is it an ethical rule that you shouldn't talk to
[30:39] Speaker 2: your client during, you know, a break in testimony. Is
[30:43] Speaker 2: there any real rule there?
[30:45] Speaker 5: There are no ethical rules about it, other than of course,
[30:50] Speaker 5: a lawyer cannot suborn perjury. So if you're giving the
[30:55] Speaker 5: client advice, you know he's serving, say self defense in
[30:59] Speaker 5: a case, and he tells you a story in which
[31:02] Speaker 5: he's not under threat from the person he killed at all,
[31:06] Speaker 5: and you say to him, well, you know it would
[31:08] Speaker 5: help if you thought he was trying to strangle you
[31:11] Speaker 5: when you pulled out the knife and started, you know,
[31:13] Speaker 5: stabbing him, Well, that would be unethical, your supporting perjury.
[31:17] Speaker 5: You're telling him tell a lie, say that you were
[31:20] Speaker 5: in fear of your life, that's why you killed him.
[31:22] Speaker 5: So you know, those are the only ethical rules that
[31:25] Speaker 5: apply in terms of shaping testimony. By saying, be more
[31:29] Speaker 5: polite when you're you know, you're yelling at the prosecutor.
[31:33] Speaker 5: Don't do that. It makes you look aggressive and bad.
[31:36] Speaker 5: I'm talking about stylistic questions and advice from the attorney,
[31:41] Speaker 5: you know. I think that's something that all lawyers do
[31:43] Speaker 5: to a certain extent with clients, and it's probably okay,
[31:47] Speaker 5: and matter of fact, the courts may like it because
[31:49] Speaker 5: if you get a long winded client, it won't give
[31:51] Speaker 5: you a straight answer to a question. A lot of
[31:54] Speaker 5: times the judges are quite happy if the client listens
[31:57] Speaker 5: carefully to the question and answers it succinctly, as opposed
[32:01] Speaker 5: to wandering around and telling all of these lengthy stories, which,
[32:04] Speaker 5: by the way, just open up new avenues across examination
[32:08] Speaker 5: for the prosecutor. You know, clients testifying is one of
[32:12] Speaker 5: the most complex issues of criminal law and always will be,
[32:15] Speaker 5: and I.
[32:16] Speaker 2: Believe only justice Katanji Brown Jackson was a criminal defense
[32:21] Speaker 2: lawyer who might have faced some of these problems. Justice
[32:25] Speaker 2: Sonya Sotomayor is the only other trial lawyer on the court,
[32:29] Speaker 2: and she was a Manhattan district attorney like you, Paul,
[32:33] Speaker 2: thanks so much for joining me today. That's former Manhattan
[32:36] Speaker 2: prosecutor and criminal defense attorney Paul Callen, and that's it
[32:40] Speaker 2: for this edition of The Bloomberg Law Show. Remember you
[32:43] Speaker 2: can always get the latest legal news on our Bloomberg
[32:45] Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify,
[32:49] Speaker 2: and at www dot Bloomberg dot com slash podcast Slash Law,
[32:55] Speaker 2: And remember to tune into The Bloomberg Law Show every
[32:57] Speaker 2: week night at ten pm Wall Street Time. I'm June
[33:01] Speaker 2: Grosso and you're listening to Bloomberg. Mhm.

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