What’s the First Step in the Investigation into Cuomo?

Governor Andrew Cuomo is facing two investigations into his conduct — but where should investigators start? 

Following multiple allegations of sexual harassment against New York Governor Andrew Cuomo, New York Attorney General Letitia James announced the appointment of two attorneys,  former Acting U.S. Attorney for SDNY Joon Kim and employment discrimination attorney Anne Clark, to lead the investigation into Cuomo’s behavior. Preet and Anne discuss the first steps of the investigation, and what evidence they would look for as investigators.

Meanwhile, all eyes are on Minneapolis as jury selection starts for the trial of former police officer Derek Chauvin — who’s charged for the death of George Floyd. Preet and Anne analyze the charges against Chauvin, and the challenges of selecting impartial jurors.

And, there has been an alarming rise in hate crimes against Asian Americans over the past year. Preet and Anne break down the staggering statistics, and law enforcement efforts to combat the violence.

3/9/2021

Preet Bharara:

From CAFE, welcome to CAFE Insider. I’m Preet Bharara.

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

Hi Ann, how are you?

Anne Milgram:

I’m good. How are you doing?

Preet Bharara:

Before we get to all the stuff we need to talk about, I have a public service announcement. We have a live Zoom event for folks with noted historians, Heather Cox Richardson, who has been a guest on the Stay Tuned show, and Joanne Freeman, this Thursday, March 11th, 6:00 PM. It’s free. Sign up at CAFE.com/live, that’s CAFE.com/live. So we’re recording this on the morning of March 9th. And Anne, before we started taping, we chit chat a little bit before we hit the record button to loosen up, see how each other are doing.

Anne Milgram:

And actually eat our breakfast also, if we’re honest.

Preet Bharara:

Don’t tell them everything, Anne. The healthy breakfast of champions that we both have as we begin to tape. And it was a year ago when really the world changed. It started to change before a year ago, but I think I mentioned this before, you were prescient enough that in the beginning of March of last year, you talked to the team about getting us our own mics at home because you realize maybe we wouldn’t be going to the studio anymore, and you were very right. What I remember about March 9th and March 8th, it was the 8th, a Sunday, when you knew bad things were happening and you were seeing what was happening in Europe, but it didn’t quite hit home yet.

Preet Bharara:

And for me, it was the Sunday evening when my boys’ high school just shut down abruptly because someone tested positive for COVID-19. And on the 9th, I went to teach my seminar at NYU Law School, and that was the last time I was in that building. So a lot of things changed a year ago.

Anne Milgram:

Yeah. In some ways, I remember it like it was yesterday, and in another ways, the past year is just a blur. But I remember you and I did a photo shoot to do the cover art for CAFE Insider, and at that point, we were giving each other elbow greetings, but that was really one of the last professional things I think I did, that and the podcast that weekend. And we’d started talking earlier about-

Preet Bharara:

It was like a week earlier, right?

Anne Milgram:

Right. About how to get to go remote. But I think watching Europe and in Washington state, I had a sense that something was coming, but I have to say, truthfully, I don’t think any of us knew what was coming or what the year would bring. And I feel it’s been a really heartbreaking and difficult year. I also feel really grateful to you, to the Insider team, to our listeners, to family and friends, people have been amazing in the past year. And now people are getting vaccinated, which is just a really positive. It’s an extraordinary thing that we’re here a year later. It’s been such a hard year, but it’s also amazing where we’ve gotten.

Preet Bharara:

Yeah. There’s a lot of people who aren’t here. Can I say one frivolous thing with respect to that photo shoot? I think it’s lovely, I think we both look okay, but there’ve been a couple of mean people who said it looks like a photo for an ad for personal injury lawyers, Preet Bharara and Anne Milgram.

Anne Milgram:

Yes, 1-800-

Preet Bharara:

We have good fans.

Anne Milgram:

… Call auto insurance.

Preet Bharara:

If you’ve been harmed, Anne Milgram and Preet Bharara can help you. No, it’s been a very tough year. And when you say this thing about how it was hard to expect how bad it would be, and there were some models that were… Ian Bremmer, who’s been on the show posted a prediction that was from a year ago from some outfit that predicted potentially 400,000 deaths and higher. My guest on Stay Tuned this week is a very prominent, noted, super smart physician, Atul Gawande, he has training, and he said, sort of confessed, that a year ago, it didn’t occur to him in a deep way that it could get this bad. But we see the light at the end of the tunnel, I hope. Did you see yesterday that there are more people who have been vaccinated than there are cases of COVID at the moment?

Anne Milgram:

It really is amazing. And we have a lot of friends in New York who are helping. People get appointments, seniors, vulnerable people. It’s really an amazing and an inspiring thing to see what’s happening. Can I say one thing about Atul Gawande? He’s written one of my favorite books of the last five years that I’ve read, which was Being Mortal.

Preet Bharara:

Was it Complications?

Anne Milgram:

No, Being Mortal. Have you read that?

Preet Bharara:

I read Complications. It was actually a model from my book, as I mentioned to him.

Anne Milgram:

Yeah. I’m really looking forward to listening to that podcast.

Preet Bharara:

So Being Mortal, what about it?

Anne Milgram:

It’s a really important and beautiful book. Half of it is about what’s happening with long-term care and nursing homes, which we’re about to talk about today in the context of Governor Cuomo, and the other half is about his personal experience with his father who was ill with cancer and passed away, and just navigating it, and how to think about these end of life conversations and how to do what is a natural part of humanity, living and dying. How do you do it in the best way possible for the person and for the family? And I read it for a variety of reasons. It was recommended to me just by a bunch of folks. It’s just an amazing book, it really is. I would really recommend it to everyone.

Preet Bharara:

Good. By the way, as we are speaking, I have the TV on in the background on mute on C-SPAN 2. And the reason I, and I think you have the TV on tuned to CSPAN 2, is that our good friends, brilliant lawyers and leaders, Lisa Monaco, and Vanita Gupta, who I think listeners know pretty well. They’ve been on the show a bunch of times, and Lisa had a podcast with us, are having their confirmation hearing for deputy attorney general and associate attorney general respectively. And so I wish them luck, I hope and expect they will get confirmed, and it will make a big difference at the department.

Anne Milgram:

Yeah. I’m excited to tune in after we’re done.

Preet Bharara:

It’s just a little hard to say about that.

Anne Milgram:

What I really want to say is that I wish I could be watching that instead of-

Preet Bharara:

Talking to me?

Anne Milgram:

… just because I really want to watch it, but it’s okay.

Preet Bharara:

Thanks, Anne.

Anne Milgram:

It’s okay. You can’t always do everything. I’ll catch the highlights later, but yes, wishing them-

Preet Bharara:

Well, I’m recording it on the DVR. I’ll let you watch it after I do. So you mentioned, Anne, Governor Cuomo, multiple investigations swirling around him with respect to the sexual misconduct, sexual harassment allegations. We have been waiting for the attorney general of New York, Letitia James, to make an outside appointment to something called a 63b referral. The attorney general, with the consent of the governor, which has been given, she has the authority to appoint an outside independent lawyer or lawyers to look at something that’s in the public interest to make a review, to issue a report, to make other recommendations, etc. So after a number of days, she has made that appointment.

Preet Bharara:

And it’s interesting because one of the people I know very well, she has appointed Anne Clark, who is a lawyer who for a long time has been involved in representing people, and she’s been a long-time lawyer in the area of sexual harassment and sexual misconduct and employment law. And the other person is my dear, dear friend, Joon Kim, who was the deputy US Attorney when I was in office and became the acting US Attorney in the Southern District of New York when I got fired. I’ve known him for 20 years. He’s brilliant. He’s hardworking. He’s completely ethical. He has a lot of integrity. And so I have a lot of confidence that he will do a great job.

Preet Bharara:

I don’t know Ann, but I hear good things about Ann Clark as well. And the other thing that Joon knows is, he was in the top leadership at SDNY when we were investigating, and people forget this, when we were investigating the governor himself and people around him. And Joon oversaw the ultimate conviction of Joe Percoco, who was basically Andrew Cuomo’s top aide for a variety of public corruption crimes. So he’s familiar with how to do high profile investigations, he’s familiar in particular with some of the ways that Andrew Cuomo and his lawyers deal with things, so I think it’s a perfect choice.

Anne Milgram:

What’s interesting to me is that you would expect this to be a senior female lawyer. And I do a lot of internal investigations into sexual harassment, and I often work with companies that basically say, “Look, we’d like to have a female lead,” in part, because it is really important to have a senior woman as part of the team, as what they’ve done here is bring Anne Clark in, who’s very experienced in this space, the idea of being you want women to be totally comfortable and hear the complainants, the women who have come forward saying that they were sexually harassed by Governor Cuomo, they are women.

Anne Milgram:

And so this idea that there’s a level of comfort, whether that’s fair or not or whether that’s a question of perception, I think we could discuss, but there are actually a lot of really amazing significant female lawyers who’ve held positions of authority in government over the past five years. And so I thought Joon, he’s tremendous. I don’t know him like you know, but I know him by reputation. I’ve met him a couple of times, and in some ways, I think it have happened to a nicer guy. It’s going to be a lot of work and it’s going to be real. This is going to be a tough assignment in some ways.

Anne Milgram:

But part of me actually thinks that the reason he was selected in something where you would expect a little bit maybe that they would have gone a different direction is that he’s investigated Cuomo and Cuomo’s folks and he has experience in dealing with this. And I think that that’s probably not an insignificant calculation in the city and state where Andrew Cuomo has been governor. He’s in his third term, he’s extraordinarily powerful. You’re looking for someone who’s not going to be afraid to call balls and strikes on him, and Joon already has a track record of having done that. And so that to me explains a little bit. And again, I think he’s an exceptional lawyer.

Anne Milgram:

I don’t know if he’s done this kind of work, but again, Anne Clark really has. And so, as a team, I think they’ll make a great team.

Preet Bharara:

Yeah. So are you saying it’s a good marriage? I don’t know, this is all speculation. I think Tish James was trying to send a message in addition to appointing people who could do the work, and the message is that one of the leaders of the investigation is fearless and not afraid of Andrew Cuomo and all sorts of things that he may try or stunts that his lawyers might try because he’s been known to do that kind of thing. And also, to make sure that people understand that this person is in no way in the tank for Andrew Cuomo. Remember, at the beginning, Cuomo tried to try to pick the person who is going to investigate him, and initially picked someone with a great reputation, Barbara Jones.

Preet Bharara:

But Barbara Jones looked like she had some connection to someone who was very close to the governor, Steve Cohen at the law firm. Then he tried to get someone who also owes him her job, Janet DiFiore, the chief judge of the court of appeals in New York to be the one to pick the outside person. So I think to contravene any suspicions that the person would not be fully independent, she picked someone like Joon to go along with Anne Clark to show this person doesn’t owe Andrew Cuomo anything and has been strong with respect to the governor’s office before. And we’ll see how that goes.

Anne Milgram:

I think she was also sending another message because Joon is the former acting US Attorney. And so you expect people will cooperate with investigations, but there are times where people don’t cooperate, and if there were obstruction or other things to happen, you’re basically sending a message that you’re sending in someone who is experienced in criminal prosecutions. They have a very strong background. Joon will know how to wield the subpoena power to get documents and evidence. And so in the end, I think that this is going to have turned out to have been a very good choice with the two of them, and I have no question as to their independence.

Anne Milgram:

My gut is that you’re right. But at first, I had to step back and think, “Well, it wasn’t exactly what I would have expected.”

Preet Bharara:

Can we talk for a minute about the investigation itself?

Anne Milgram:

Yes.

Preet Bharara:

You’ve done these kinds of things, and I’ve been thinking about what are the sorts of steps that you would take? Would you immediately interview the identified victims who have come forward? Would you immediately subpoena the governor’s office and any other entity that might have in their possession, written complaints, formal complaints? Would you ask for the emails right away? What’s the order in which you might do this?

Anne Milgram:

I think the answer is yes to all the above.

Preet Bharara:

You’d do everything at once, right?

Anne Milgram:

Yeah. Well, part of the challenge, and just so folks understand what’s internal investigations is that you need to get all that internal information. Here, you’ll probably have people who had government-issued cell phones, used to be blackberries, but now they’re probably iPhones or Android devices, you’ll want access to those, you’ll want access to all the emails that were sent, you’ll want access to all the logs of who was in the governor’s office. You’ll also want to see the hiring and staffing. The governor’s office can often be a number of people, but there’s a small inner staff that’s made up of executive assistants, like one of these women, and folks who would come in contact with the governor’s office a lot.

Anne Milgram:

You’re going to want to understand, on the days and times that the women say they were in a certain place with Governor Cuomo, who else was there? Do the record confirm that they were there? So that takes time to get those documents. So basically, day one, they’re going to start asking for all of that stuff. And simultaneously, they’re going to set up times to talk with these women. And also, there’s a few pieces here. One is, are there other complainants, are there other individuals who may have been, whether they themselves were the subject of potential behavior or they witnessed potential behavior?

Anne Milgram:

And also, there’s a big question here, Preet, like in every investigation, of, “Well, who else did you tell?” Or, “When you came into the governor’s office, did anyone ever say to you, like try not to work late at night by yourself or anything like that?” And again, that’s totally a hypothetical from other matters I’ve handled. We don’t know what the facts are going to be here, but in a situation like this over time, and we now have five women who’ve made allegations, four of whom worked with the governor, the fifth was at a wedding. And I would put that to the side at the beginning of the investigation because sexual harassment really involves harming women’s ability to work.

Anne Milgram:

And so that would really be the focus here, are the women who were at work. I’ll tell you what else I would look at something like this, Preet, and I’d be curious to hear you on this. The response by the governor’s office…. Some of the questions will be, of all the women who have made complaints, and if any new women who might come forward, did they say anything to the governor’s staff? Did they make formal or informal complaints? Who did they go to? And what did the governor’s office leadership do about it? There’s at least one instance where we know that one of the women made a complaint to one of the governor’s senior staff members and then ultimately told another one and then was transferred to another office. That’s a very old school thing to have done.

Preet Bharara:

But I think the question is going to be… a couple of questions. One is, did they follow protocol? And the second is, with respect to all these things that the governor has been saying, is he truthful? Is he credible? Because at the end of the day, part of the consequence here is going to be political. Joon and Anne are going to provide a report, presumably that becomes public. And they’re not just going to examine the allegations and the underlying conduct, but also the response, as you say, by the governor. And there are a couple of things where I think the governor may already be in trouble. One of those is his immediate response in connection with his apology has been to say, “I had no idea that I offended anyone, that I made anyone uncomfortable.”

Preet Bharara:

And I got to say, even without seeing the results of any exhaustive investigation, that seems to be a bunch of BS, because with respect to at least one case, if this is corroborated, as you just pointed out, this woman went to the staff, she was transferred. She’s the one who had been known to the governor. Is there any universe in which Andrew Cuomo, who is a severe micromanager and knows what’s going on in his office, would not have been told that something was up and that something strange had happened? I can’t imagine. And the second thing just quickly, and this may be a minor point, I’m curious what you think about it, is, he was asked the question, “Did you take the same sexual harassment training as every other state employee has to take?” And he said-

Andrew Cuomo:

“Short answer is yes.”

Preet Bharara:

And then there are also reports that say that he had a staffer take that training for him. And that’s not the biggest thing in the world, but the more his credibility gets beaten up in a final report, the worse it is for him, do you agree?

Anne Milgram:

Yeah. So just to break down a few things. First, you’re right, the question will be, did they follow protocol which is dictated by sexual harassment law? So this is going to be the question of, did they do what is legally required to be done? And as a rule, in sexual harassment, we don’t let people just complain and then walk away, we don’t give them the option. And it seems heavy handed when you talk about it, but the idea is like, just take Charlotte Bennett, she’s 25 years old, she’s an executive assistant. The governor is like 20 levels senior to her, as you said, and so there’s just this huge disparity in power. And so if you ask someone like that, would they want to proceed with a formal investigation? The answer is almost always going to be no because of that power imbalance.

Anne Milgram:

And so I think it is a really important question of, did they do this by the book or did they not do it by the book? My instinct, I see issues here. And that would be something I would spend a lot of time understanding. In terms of what he would have known and said, this is a moment where she’s one of his executive assistants, and so he’s going to see her frequently when he’s in the office. And so let’s say, hypothetically, that there’s a situation where no one tells him anything, which I personally find very hard to believe, it’s implausible to think he wouldn’t have asked, “Hey, where did she go? Why did she leave? She was a good employee, why did she disappear overnight?”

Preet Bharara:

He’s the most serious micromanager of any public official that I am aware of, by reputation, and I know this from personal experience with him as well.

Anne Milgram:

And on training, I think that you’re right that it is a big issue. And I think it’s a big issue. Look, you and I, we take the sexual harassment training for NYU. It’s long, it’s online, you have to watch videos. There are hypotheticals that are very specific as to what you can and cannot do. It would be clear from if it were similar to the NYU training, and I would guess that the state training is very serious as well because they take this seriously.

Preet Bharara:

It might be identical. I think these trainings are vetted and probably have some degree of consistency.

Anne Milgram:

And a lot of the hypotheticals will be similar to some of the things that we’re hearing, some of the allegations we’re hearing here. So one thing that’s also fascinating is, it’s not a who done it. These women have said Governor Cuomo did this. And he’s basically said, “Yeah, I did a lot of it, but I never intended to cause the harm. He’s denied the physical, the unwanted kissing, but he hasn’t denied the other things. And so that puts us in this, you already have some admissions, and then the question is going to be some of these pieces around is, he credible in saying that he had no idea people didn’t like it and no one ever said anything to him? I think when it comes time to things like the training, what training he did, conversations he will have had with staff or others, he’s going to get pushed really hard on that. And I think your instincts are going to be right.

Preet Bharara:

A couple other things I want to say. And I know that some people in the country who are listening have only just come to know Andrew Cuomo in the last number of months, and they enjoyed his statements and his press conferences about COVID, and he appeared to be a strong leader. Andrew Cuomo has been around for a long time and I have a lot of experience with him directly because we investigated various things. I don’t want to belabor the point and go over ancient history, but there was an anti-corruption commission, the Moreland Commission that was stood up because of the work of my office.

Preet Bharara:

Because we were arresting, prosecuting and convicting legislator after legislator in New York, both Democrats and Republicans, the governor felt that he had to do something about it because he’s responsive and realizes it didn’t look good that the governor wasn’t taking public corruption seriously. So he sets up this Moreland Commission and then he disbands it under weird circumstances, in my view, prematurely. I exchanged words in public, and I will just say that among the challenges of investigating powerful people is, if those powerful people wield their power or are known to wield their power in a particular way, meaning they made clear that there’ll be hell to pay if you cross him.

Preet Bharara:

And there are various reports, just even in the last number of weeks where the governor has called up another politician and said, “I will ruin your reputation.” This is the kind of thing he does. I remember being taken aback when we were having a public disagreement about the closing of the Moreland Commission, multiple people wrote to me, including one journalist with some concern and said, “You know that the governor engages in retaliation?” I’m like, “I don’t know what kind of retaliation he’s going to engage in against me, I’m the sitting United States Attorney.” And people joke, “Do you have an armored vehicle? Do you have body guards?”

Preet Bharara:

And those were jokes, but they were jokes that arose from a perception, not imagined, but real, that this is a person who doesn’t like anyone to cross him. So that’s a dynamic. I hate to say, that’s at play here as well. Notwithstanding how jovial he may have seemed in some of these press conferences that he did, which also by the way, have been undermined by this other issue, the undercounting of people who died in nursing homes as well. So Andrew Cuomo did not arrive anew in the country as this benevolent hero, he has a long history of doing certain kinds of things and acting a certain kind of way and averting his eyes to certain kinds of things in this state for a long time.

Preet Bharara:

If we say those kinds of things about Republicans, we have to say those things about Democrats too.

Anne Milgram:

I want to talk about the healthcare piece because I personally think that this is also really important. And one of the things we’re seeing here, which is unusual, is that a lot of times, when you and I talk about an issue or an investigation, Preet, it’s one thing. And here, there’s two very significant investigations ongoing, and they’re both important. They’re different, but they’re both really important, and they do go to core questions of credibility and leadership and integrity in government. But the healthcare thing, and you and I have talked a little bit about it, the allegation made by the state AG that Governor Cuomo’s office, the Health Department and the Cuomo administration were undercounting the number of nursing home deaths because they were only counting for the purposes of a July report that they released and then they did not provide information that they were requested to provide by the state legislature until a judge ordered them in February.

Anne Milgram:

They did not disclose that the number of people who were living in assisted care, long-term facilities, nursing homes, who then got sick and then were transferred to the hospital and passed away at the hospital. So they only counted people who’d passed away in the nursing homes and not people who had been living in nursing homes or long-term facilities and then transferred to the hospital. And that’s inconsistent with how other states did it. The majority of other States, I’m not sure whether any other states did what New York did, but most of them basically counted everybody.

Anne Milgram:

And was just came out over the course of the past week, is that there was a point in time in July where the Health Department, the state Health Department, sent a draft report to the governor’s office, which is not uncommon. A lot of times you’re going to issue a big report on something that’s obviously the number one priority for, let’s say COVID and the pandemic. So you’re going to have the governor’s office be aware of it and look at it. And often, governor’s offices will make some suggestions on maybe language or policy, but here they did something different, they took out those numbers. So they kept in the numbers of the individuals who’d passed away in nursing homes. And they took out the number of people who they believed had died after having been transferred out of the nursing home.

Anne Milgram:

And this to me, I wanted to get your gut on it, but this to me, it’s really significant for a number of reasons, but it’s evidence of that was there, and doctors, healthcare professionals prepare those reports, the governor’s office is a political place and the political folks took out that data. So what’s your read on that?

Preet Bharara:

Well, I think it’s very serious. I don’t know if it constitutes the crime of obstruction or making a false statement, but again, I don’t think that’s the standard for elected officials, and it’s particularly egregious in a way given two things. One, this is around the time he was thinking about writing a book and getting clearance from ethics officials to write a book that was going to be a mission accomplished victory lap, even though still hundreds of thousands of people were at risk and continue to die from COVID-19. And then the second thing is, he was doing this, and again, it needs to be corroborated and investigated fully, but if the allegations bear out, this was a time when Andrew Cuomo himself at those press conferences was chiding the President of the United States for not following the science, for not paying attention to the experts, for ignoring the doctors.

Preet Bharara:

And if you believe the reporting with respect to this nursing home issue, Andrew Cuomo’s staff, whether his direction or with the understanding that Andrew Cuomo would have liked this, were doing precisely that. The reporting is that many health officials, some of them, I think left office, but many health officials were upset and were disputing the way that the governor’s office wanted to count these numbers. So it’s hard to stomach someone who is criticizing the leader of the country for doing all sorts of things that were upsetting the doctors and the professionals and the experts when the leader of the state was doing some of those same things behind the scenes.

Preet Bharara:

There are a lot of other things happening as we speak, and the jury selection in one of the most significant trials in a long time and certainly of its kind, is happening right now in Hennepin County, Minnesota, and that’s the trial of Derek Chauvin, who everyone will remember last May was seen on video, essentially killing George Floyd, the black American, Derek Chauvin, a white officer. He and three other officers were charged with felonies. Derek Chauvin is going to trial alone, the other three officers are going to trial later. And the judge as might be expected in a case like this, and maybe people don’t fully appreciate the difficulty of jury selection in a high profile case, he’s allotted something like three weeks to pick 12 jurors and four alternates who can be fair and fair minded in connection with this trial.

Anne Milgram:

One of the things we’ve seen is jury selection was supposed to start yesterday and it was put over it and it was put over because the trial judge dismissed last fall the third degree murder charge, which is essentially depraved indifference charge. And not that charge basically went to that Chauvin had basically caused the death of George Floyd, but the underlying law, there was a question as to whether you had to be presenting a harm to others. And in the course of that, someone died.

Preet Bharara:

Let’s just take a step back for a second. People should understand that Derek Chauvin was charged with murder in the second degree and murder in the third degree, but the judge threw out the third degree murder. And that seems odd to folks potentially, why’d you throw out the lesser charge, not the higher charge? It usually doesn’t work that way. Well, to prove murder in the second degree under Minnesota statute, you have to show that someone has caused the death of a human being with “intent” to effect the death of that person or another, but without premeditation. That means in the moment your intent was to cause the death.

Preet Bharara:

Murder under third degree under Minnesota statute says, whoever without intent to affect the death of any person causes the death of another by perpetrating an act eminently dangerous to others and evincing depraved mind without regard for human life is guilty of murder in the third degree. And so with respect to that issue of an act eminently dangerous to others, what do you make of that?

Anne Milgram:

And this has been back and forth. So Judge Cahill, who’s the trial judge, he dismissed the third degree murder charge last October, basically agreeing with Chauvin’s defense team who basically said, “No one else was put at risk other than George Floyd.” So arguing the law actually requires that there be others at risk, that it can’t just be one individual at risk.

Preet Bharara:

And not just one other. So that language-

Anne Milgram:

And not just one other. Yes.

Preet Bharara:

So their lawyers are arguing that you have to take that word very seriously, and the plural is the plural. And in this case, I guess the only person who was in harm was George Floyd. Yes, okay.

Anne Milgram:

That’s right. But in this case, the court of appeals in Minnesota upheld third degree murder charges against another former police officer, Mohammed Noor, who had shot entailed a woman while on duty. And that was basically a similar situation, Noor argued that his actions were directed at the victim alone, there were no others at risk. And the court basically found that Noor could be held accountable and he was convicted and they upheld that conviction under third degree murder. So the judge here in the Derek Chauvin case, basically, who had dismissed that third degree murder count, the appellate court has now said to this judge, “You need to consider that third degree murder charge in light of our ruling in the Mohammed Noor case.”

Anne Milgram:

And this happens frequently where there could be a statute that isn’t used often, it gets used, it goes to a higher court. The higher court makes a finding and then basically says to the judge, “Look, your read of the laws inaccurate. We’re telling you what the right reading of the law is.” And I take it to mean that the third degree charge will be added here, but that’s something where the judge agreed to put off the jury selection for a day or two. But what’s interesting about this, there’s a second degree murder charge, there’s a question about a third degree murder charge, and there’s a manslaughter charge.

Anne Milgram:

One of the reasons why I think that the judge is very much moving to do jury selection even before this issue is resolved as to third degree murder, I think that’s a mistake. And I’m curious to hear what you think because in state court, and in Minneapolis, the lawyers will get to ask questions of the jurors and the judge often reads what the charges are. It’s often a part of this selection of the jury that the jury gets to understand the nature of the charges against the defendant.

Preet Bharara:

Yeah. You have to frame the charges that are actually going to be the ones that the trial is going to try to prove. So I agree with you, I think you should have squared away before the process of voir dire happens, and maybe that will be the case, but you need to square away what the particular charges are. In my experience, and I don’t have a lot of experience in state court, but in federal court, the jurors are made to understand the nature of the charges, the basics of the facts. So the determination can be made about whether or not they can be fair, not knowing every single fact, obviously, that’s the purpose of the trial, but knowing the basics, and not knowing whether or not a particular charge is going to be in or not and have that come in later, I think undermines the seamlessness of the jury process.

Preet Bharara:

And it might also be confusing to folks. Why is it that the prosecutors are fighting so hard to get a lesser charge back into the case? Usually you’re fighting to get the higher charge, that’s the thing you see on television a lot. And the reason is I suspect, that the second degree murder charge is a harder one to prove, as we referenced earlier, you need to show intent to effect the death. And it could be that some jurors will find, depending on how the facts come out at trial, Derek Chauvin did a terrible thing and he wasn’t quite intending for the death, but boy, he had a depraved mind.

Preet Bharara:

He didn’t have regard for the human life of George Floyd and the conduct made better fit in the minds of some jurors murdering the third degree. And so you want the jurors to have that option.

Anne Milgram:

What do you think also, I’ve been thinking about this three weeks, I think it totally makes sense. I actually feel like this is going to be a really hard case to pick a jury in. First of all, there’s been an incredible international media exposure. I would be surprised if you found anyone, and the perspective jurors have already done a written questionnaire even before they’ll walk into the courtroom to be questioned. And it’s possible that some of the folks, the defense and prosecution can be-

Preet Bharara:

I just saw that before we started taping, based on the written questionnaires as of this morning, Tuesday morning, 16 jurors were already dismissed.

Anne Milgram:

Exactly. And so there are going to be a number of others that both the prosecution and defense will just agree outright to excuse. And there are a variety of reasons why that could be the case. It could even be as simple as somebody saying, “Look, I come from a family of police officers and I wouldn’t feel right about this.” And everyone would agree, obviously, they’re not going to be fair and put aside their personal experience to judge the facts and the evidence. I also though think, Preet, I was thinking about this a little bit, also in the context, even of the Roger Stone case, which seems a little bit far field, but remember a number of those jurors spoke out after the trial.

Anne Milgram:

And remember that there was an attack, I believe, on the jury foreperson, who had had some tweets related to Donald Trump, and there were allegations of bias. And so, as I was thinking about this, I was thinking about how critically important it is going to be to get people who will really, and truly be able to evaluate the evidence and be fair and not walk in with a bias, and to really understand make sure that people are being forthright about that. There are a number of people who will want to be selected for this jury, that’s the way that these things often go, because they want to do their civic duty, because they feel strongly about it.

Anne Milgram:

But I actually think that this is going to be a huge amount of responsibility on the prosecution team, as well as the defense team to make sure that everybody who gets on there is fair and unbiased and can listen to the evidence.

Preet Bharara:

It’s a funny thing, because no matter how famous or how much attention a particular event has gotten, there’ll always going to be people in America and some community who just did not pay a lot of attention to it. In the case of a famous celebrity being murdered and people wonder, are you going to get a fair jury because there’s been a lot of news about it? There are some people that just don’t watch the news. And those are the kinds of people often who end up serving on the jury. Now, in this case, for defense counsel allude to this, it’s not just some celebrity, this was a killing that has significant impact on how we think about rule of law and law and order in this country and policing in this country.

Preet Bharara:

And so ordinarily, you would say, “Well, maybe there are a few people in Hennepin County that didn’t pay attention, didn’t care about the case, and they will come with no bias and we’ll have an open mind. But the defense lawyers are saying such people as that, in their words, I think, don’t meet the standard of civic engagement that you would want for jurors to sit on a case like this. What kind of person was so incurious or so not caring as to not know a thing about the killing of George Floyd. Almost by definition I think the defense lawyers have been suggesting publicly, such people are not fit to serve on the jury.

Preet Bharara:

I thought that’s an interesting twist on this idea of having people who have no knowledge of the facts serve. What do you think?

Anne Milgram:

It’s really interesting because I also think you’re right, that there could be some people who don’t read newspapers, don’t listen to news, but this is something where this is being tried in the city where this happened. And I would find it very hard to believe that even if somebody didn’t read the news or newspaper that they weren’t told by somebody else, that they didn’t have some awareness. And again, they may not know George Floyd’s name, they may not know Derek Chauvin’s name, but the idea that they would have zero awareness, it feels to me almost impossible.

Preet Bharara:

Is that credible? You’re saying?

Anne Milgram:

Yeah, exactly.

Preet Bharara:

And you would find that to be a red flag just in terms of credibility, you’re saying?

Anne Milgram:

I would ask a lot of questions. And when I was in the Manhattan DA’s office and sometimes you know I’m a consultant, a technical advisor to law and order. And every once in a while they do jury selection. And I love it when they do that, because it is really fascinating to watch a state or local jury selection proceeding, where the lawyers are able to ask questions of the prospective jurors. And you really are raising the central themes of the case, you’re not asking directly about this defendant with this victim, you’re saying, “Do you understand that intent can be formed in an instant?”

Anne Milgram:

So you could leave your house intending to go to school and then decide, “Oh, I want to go into the coffee shop before I go to school.” And you formed an intent to go into the coffee shop. So even if you didn’t leave thinking that you were going to do something, you ended up doing it anyway. And that might be the kind of thing that becomes really important, where someone goes out and there’s evidence that they’ve planned a robbery and in the middle of it, they end up stealing a car. And so you’re trying to prove the intent that they stole a car. These are the kinds of things that you do to just get the jury thinking in these ways.

Anne Milgram:

And also it’s frequently very helpful, for example, if you have circumstantial evidence where you don’t have direct evidence of a crime. And so again, you’re figuring out and talking to the jury about some of the themes that they’re going to see. And here it’s going to be really interesting. So I think we’re going to know before the trial starts what Derek Chauvin’s defense will be because we’re going to know it through his lawyers who are going to ask the jury questions about whatever that defense or those themes might be. So I think it’s really important. I think even three weeks might not be enough.

Anne Milgram:

And the prosecutors need to be vigilant here too, they need to protect a potential conviction. And so that’s something you think about with high profile cases and you know this, but you want to make sure that everything is done by the book because you don’t want an appellate court to look back later and say something was done wrong, so we’re reversing the case for a new trial. And so they’re going to be really careful.

Preet Bharara:

You make a good point. I don’t know if probably because you’re a consultant, they do a better job of this on one order, but you see all the time. And I saw a show recently where the judge is bending over backwards in favor of the prosecution, and the prosecution doesn’t do anything or say anything. In real life, good prosecutors would disabuse the judge of the notion that they had to do that thing because it doesn’t help you to win at the trial level and to lose on appeal. And so good prosecutors, unlike what you might see on television sometimes, make sure not to take advantage of a judge who’s maybe going beyond what he or she should do to help the prosecutors, because that’s just going to hurt on appeal.

Anne Milgram:

100%. I’m with you.

Preet Bharara:

One more thing, and that I’ve mentioned on Stay Tuned, and I think people are hearing about in the news, but you and I have not talked about it, and it’s very upsetting for a lot of reasons, but also because I happened to be Asian-American. There has been this really terrible rise in hate crimes against Asian-Americans all over the country in the last year, but particularly against older Asian-Americans. The FBI defines a hate crime as I quote, “Criminal offense against a person or property motivated in whole or in part find offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”

Preet Bharara:

And then various states have hate crimes laws including New York, that include national origin, and the numbers are just shocking. There’s one organization that has documented 2,808 incidents of anti-Asian discrimination from March to December of 2020. And some people, and I agree with these people, think that it’s in part related to how people have made a racial or ethnic issue out of COVID-19.

Anne Milgram:

I would say, even the 2,800 incidents that have been documented, there are probably many more. And so I think it is alarming, I think it is something everyone needs to be paying attention to including local law enforcement. And to get a sense of the scope of how horrifically bad, I think this has become in terms of hate crimes, the NYPD has formed an Asian Hate Crimes Task Force. For the NYPD, they already have a hate crimes group, groups of folks that do civil rights crimes and hate crimes, for them to form a specific Asian Hate Crimes Task Force is a sign to me that they’re seeing a real uptick and a real problem.

Anne Milgram:

And I agree with you on the language, Donald Trump frequently did refer to coronavirus and to say really negative things, both about China, and use what I would consider, be ethnic slurs in describing coronavirus. And I think words matter, and here the choice of those words and the use of those words has engendered a feeling of blame. And as my six-year-old would say, “If you want to blame anyone blame the pangolin and the bat.” He wants to ask us like, who do you blame for coronavirus? And we were having this whole conversation about, we don’t know exactly how it transferred from an animal likely to a human. And so he, I think, is on the lookout for pangolin and bats.

Anne Milgram:

But look, this is not the first coronavirus to transfer from animals to people, and the idea that you would blame anyone specific group of people or country, it’s just deeply problematic. And by the way, that doesn’t mean you can’t be critical of the response and argue that the Chinese government should have alerted the World Health Organization earlier. There was a lack of transparency at the beginning and at a time when it could have been critical for greater transparency. So I think you can both wish that things had happened differently and believe that there should be a certain amount of accountability, but also this is a totally different question.

Anne Milgram:

And I think it’s really important just for you and I to acknowledge that what we’re seeing nationally, it’s deeply disturbing. And I think that a lot of cases will be prosecuted as hate crimes over the course of the next year.

Preet Bharara:

Yeah. We’ll have to monitor. By the way, folks who have listened to the show for a long time know that there’s certain things that we talk about, certain interests that we have, chief among them, and has a pension for penguins, anytime, which I love about our listeners. Anytime there’s something interesting having to do with a penguin, Anthony Fauci is wearing a penguin mask, for example. People tweet or send letters.

Anne Milgram:

I have a penguin mask.

Preet Bharara:

You do?

Anne Milgram:

I do.

Preet Bharara:

Well, I haven’t seen you in a very long time, so I wouldn’t know that. But when stuff comes up relating to penguins, people tweeted me and Anne or send letters or notes or emails. And we saw a tweet from Twitter user @AlexanderBoban,

Anne Milgram:

Before I get to Alexander Boban, can I say one thing, which is that some of our great listeners over the holidays had apparently sent me a small gift that had gone to NYU and it somehow must’ve kicked around the NYU mail system, which is like Byzantine. So we only recently got it. And I opened it up and I was actually going to send you a message saying, “Did you get… ” It was a really thoughtful gift of dryer balls like tennis balls that you can put in your dryer. And I thought, “Oh, I didn’t know I needed them.” But then of course, I use them when I wash my son’s jacket, and I thought they’re amazing.

Preet Bharara:

What does that have to do with penguins?

Anne Milgram:

Wait, wait, wait. But when I first got them, I was like, “Oh, I didn’t know I needed them, but maybe I do.” And I didn’t think anything of it. I put them down, the next week I had to wash my son’s coat and I opened them up and I screamed. Do you know why? Do you know what they are? They’re penguins.

Preet Bharara:

They’re actual penguins?

Anne Milgram:

They’re penguin dryer balls. I’ll have to take a picture and send them to you, but they’re phenomenal, and I love them so much. And so thank you to our listeners. It took three months for them to get to me or two months to get to me, but they got to me. So Alexander Boban writes. “@annemilgram, a woman finds a penguin at her doorstep, her friends tell her to take it to the zoo. Later, they see her walking down the street, still carrying the penguin. They ask, ‘Weren’t you going to take it to the zoo?’ And she replies, ‘I did. Now, I’m taking it to the movies.'” I still laugh. Every time, I laugh.

Preet Bharara:

It’s so dumb and yet so funny.

Anne Milgram:

It’s so good. Thank you, Alexander. By the way, what was with me not using a penguin hypothetical today, I used a robbery?

Preet Bharara:

I don’t know.

Anne Milgram:

It is a robbery hypo.

Preet Bharara:

Maybe you knew we were going to read this tweet at the end. If I told that joke at the dinner table, my kids would get up and leave.

Anne Milgram:

They would say it was a dad joke and growl.

Preet Bharara:

It was a dad joke. Yeah.

Anne Milgram:

It’s so good. Thank you.

Preet Bharara:

The Chauvin trial, we’ll see how that goes, we’ll see what goes on. With the Cuomo investigation, I’m sure there’ll be other news as well. Also just a reminder, tune in for our live show on Zoom this Thursday 6:00 PM Eastern, cafe.com/live with Heather Cox Richardson and Joanne Freeman. And I’ll talk to you next week.

Anne Milgram:

I’ll talk to you soon.

Outro:

That’s it for this week’s CAFE Insider Podcast, your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Jennifer Korn, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley.