The World and Everything in It - October 25, 2021

MYRNA BROWN, HOST: Good morning!

Today on Legal Docket: trying to find a balance between holding police accountable and protecting them from meritless claims.

Our second case deals with the right of the accused to confront his accuser.

NICK EICHER, HOST: Also today, the Monday Moneybeat: we’ll talk about how the tax-and-spend battle in Congress is going.

Plus the WORLD History Book. 135 years ago: the dedication of Lady Liberty.

BROWN: It’s Monday, October 25th. This is The World and Everything in It from listener-supported WORLD Radio. I’m Myrna Brown.

EICHER: And I’m Nick Eicher. Good morning!

BROWN: Up next, Kent Covington has today’s news.

KENT COVINGTON, NEWS ANCHOR: Another migrant caravan en route to U.S. border » Another migrant caravan is currently trekking through Mexico en route to the U.S. border.

Tens of thousands of migrants from Central America and Haiti have been waiting in southern Mexico for refugee or asylum papers that might allow them to travel.

But many got tired of waiting and pushed their way through a line of state police officers dressed in riot gear with plexiglass shields.

AUDIO: [Sound of caravan]

The group of thousands of mainly Central American migrants continued their mass exodus from the city of Tapachula Sunday. Many had small children in tow.

Vice President of the National Border Patrol Council Art Del Cueto said drug cartels continue to take advantage of a chaotic southern border.

CUETO: They can put a bunch of individuals in one specific area, move border patrol agents to that area. Now they have to preoccupy themselves with processing, all the while, the drug cartels are having a bonanza by crossing all their drugs into the United States.

The Border Patrol detained a record 1.7 million migrants trying to cross the southern border during the 2021 fiscal year.

U.S. urges North Korea to stop missile tests and return to talks » The Biden administration is calling on North Korea to halt missile tests and reopen nuclear talks.

Last week, the North fired a newly developed ballistic missile from a submarine.

U.S. Special Envoy for North Korea Sung Kim said recent tests have violated UN Security Council resolutions.

KIM: Pyongyang’s recent ballistic missile test, one of several in the past six weeks, is concerning and counterproductive toward making progress toward a lasting peace in the Korean Peninsula.

Kim spoke after meeting with South Korean officials about the missile tests.

South Korean officials said the submarine-fired missile appeared to be in an early stage of development. That marked the North’s first underwater-launched test since October 2019, and the most high-profile one since President Biden took office.

Missiles fired from submarines are harder to detect in advance and would provide North Korea with new attack capabilities.

FDA panel to weigh authorizing Pfizer vaccine for young children » An FDA advisory panel will meet tomorrow. On the agenda: whether to authorize the Pfizer COVID-19 vaccine for young children.

President Biden’s top medical adviser Dr. Anthony Fauci said that authorization could come soon. He told ABC’s This Week:

FAUCI: So if all goes well, and we get the regulatory approval and the recommendation from the CDC, it’s entirely possible if not very likely that vaccines will be available for children from 5 to 11 within the first week or two of November.

But serious illness from COVID-19 is rare among children. And CDC Director Dr. Rochelle Walensky acknowledged that it won’t be easy to convince many parents to get their kids vaccinated.

WALENSKY: We have a lot of parents, as you know, a third who are ready to get their children vaccinated right away. And we know we have a lot of work ahead of us just as we did with the initial vaccine.

The FDA has already authorized the Pfizer vaccine for kids 12 and older.

Investigation continues into fatal shooting on Western movie set » Law enforcement officials are still investigating a fatal shooting on the set of the upcoming Western film Rust.

Last week, actor Alec Baldwin fired a fatal gunshot from a prop gun that he had been told was safe. But it contained a live round which struck and killed 42-year-old cinematographer Halyna Hutchins.

A new report suggests that just hours before the accident, a camera crew walked off the job to protest conditions and production issues that included safety concerns.

The crew was filming just outside Santa Fe. And New Mexico Gov. Michelle Lujan Grisham pledged a thorough investigation.

GRISHAM: To figure out just exactly what happened here and to make sure that if there is an accountability issue, that happens immediately.

The gun Baldwin used was one of three that a firearms specialist, or “armorer,” had set on a cart outside the building where a scene was being rehearsed. That according to court records.

Those records indicate that an assistant director, Dave Halls, grabbed a prop gun off a cart and handed it to Baldwin. He then indicated incorrectly that the weapon didn't carry live rounds by yelling “cold gun.”

I’m Kent Covington. Straight ahead: a question of malicious prosecution.

Plus, America’s Ivy League gets its first member.

This is The World and Everything in It.

MYRNA BROWN, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 25th day of October, 2021.

Good morning to you, I’m Myrna Brown.

NICK EICHER, HOST: And I’m Nick Eicher. It’s now time for Legal Docket. Before we get to today’s arguments, and we have two of them, first we want to note that the Supreme Court did agree on Friday to take up the Texas heartbeat law that protects most unborn children from abortion.

The court will consider two questions: One, can the federal government sue Texas to stop enforcement of the law? And two, who can be sued?

You may know this law sets out private enforcement, not government enforcement. But the second question here specifically will address whether private citizens may sue anyone who aids or abets an abortionist.

BROWN: The court is moving very quickly here. The briefs of the parties are due the day after tomorrow, Wednesday, and the reply briefs are due on Friday. The high court will hear oral arguments next Monday, November 1st.

EICHER: All right. Well, Mary Reichard is away this week, so WORLD legal reporter Jenny Rough is here with today’s Supreme Court oral arguments. 

Hi, Jenny.

JENNY ROUGH, REPORTER: Hi, Nick.

EICHER: Well, let’s run through the facts of the first one: It’s Thompson v. Clark. Goes back to the year 2014, Larry Thompson was living with his then-fiancée, their baby daughter, and the fiancée’s sister in Brooklyn, New York. The couple is married now.

The conflict started when the sister called 9-1-1 after noticing red rashes on the baby’s backside. She reported child sexual abuse. Four police officers showed up. They asked to come into the apartment. Thompson said no. They came in anyway.

And according to Thompson, police tackled him and pinned him to the floor. The police say during the altercation, Thompson slapped an officer and flailed his arms.

As to the abuse claim, both EMTs and the hospital examined the baby and found only diaper rash—but no signs of abuse.

ROUGH: Nevertheless, police arrested Thompson and he spent a couple of days in jail. One police officer filed a complaint that accused Thompson of two crimes: resisting arrest and obstruction of a government investigation into the child’s welfare. The District Attorney’s Office eventually dismissed the case “in the interest of justice.”

EICHER: Things didn’t end there though. Thompson sued the police under a legal provision that allows an individual to bring a civil lawsuit against state government actors for civil-rights violations. Here, a potential violation of the Fourth Amendment, which prohibits unreasonable searches and seizures. Specifically, Thompson argued a malicious prosecution claim.

ROUGH: Here’s the key: In order to bring that claim, Thompson has to show “favorable termination” of his criminal case. Remember the term, “favorable termination.” In other words, he must show the charges of resisting arrest and obstructing the investigation ended favorably—for him.

The police argue Thompson failed to do that. They say favorable termination means Thompson must show affirmative evidence of innocence. Here, the D.A. simply dismissed the charges for a vague reason: “in the interest of justice.”

Thompson argues that dismissal is enough.

And the appeals courts in different circuits are split on the issue, which is why the case is at the Supreme Court. It will try to determine: What does “favorable termination” mean? What standard applies? Thompson’s version? Or the police officers’?

Let’s start with the fact that an individual is innocent until proven guilty. Isn’t that basic principle enough to show that a dismissal … no conviction … equals favorable termination? Thompson’s lawyer Amir Ali says yes. But Chief Justice John Roberts said, not so fast. Think about this scenario:

CHIEF JUSTICE ROBERTS: Well, what if they're dismissed pursuant to an agreement that says, okay, you were the number two person in this vicious gang and you've killed five people and all that, but we want you to testify against the number one person. And in exchange, we're going to dismiss the charges? Is that consistent with innocence?

AMIR ALI: Well, Your Honor—

ROBERTS: It's a dismissal and it's a pretty good thing for him, I guess, but I don't think anybody would look at that and say, you know, that's not inconsistent with your innocence.

Justice Stephen Breyer brought up Jean Valjean. From Les Mis! What if after he stole bread, the police let him go. Extended him mercy. Now Jean Valjean can bring a malicious prosecution claim and use the dismissal to show favorable termination?

JUSTICE STEPHEN BREYER: I stole this bread to feed my starving children, and the D.A. says okay, okay, I understand unlike, et cetera, I won't prosecute you. I mean, it's Jean Valjean. I stole it and, yeah, to feed my starving children. I'm just saying your view is, yep, there is a malicious prosecution claim. 

ALI: Well, remember, Your Honor, everyone here agrees that Petitioner's going to have to prove his claim. He still has to prove the absence of probable cause, he has to prove causation, and he has to overcome… 

On the other side, John Moore argued on behalf of the officers. And Justice Brett Kavanaugh said the idea that Thompson would have to affirmatively show innocence is an upside-down rule:

JUSTICE BRETT KAVANAUGH: Your proposed rule requiring indications of innocence would seem to have the perverse consequence of ensuring that some of the most deserving plaintiffs, those who were falsely accused and whose cases were dismissed early on, could not sue unless they could show, dig into the prosecutor's mindset, whereas those who went to trial could sue.

JOHN MOORE: Prosecutors dismiss cases for all sorts of reasons at all stages of proceedings that have very little to do with the merits. The insufficiency of the evidence is the motivating factor for a prosecutor to dismiss cases in about 10 to 15 percent of cases, which leaves 85 to 90 percent of cases dismissed for reasons wholly independent of the merits.

Another argument the officers brought up: Before deciding what “favorable termination” means, the court must first resolve a foundational question. Does the claim Thompson brought against the state police officers even exist? The officers argue Thompson is twisting together different laws to make a new one.

And Justice Samuel Alito seemed to agree with the officers on this point. When questioning Jonathan Ellis, also arguing on behalf of Thompson, the hypothetical switched from historical novels to fantasy.

JUSTICE SAMUEL ALITO: Let's say someone is questioning a medical expert, an expert on lung cancer. And the question is, Doctor, I'm going to ask you a question about a centaur, which is a creature that has the upper body of a human being and the lower body and the legs of a horse. And what I want to know is, if a centaur smokes five packs of cigarettes every day for 30 years, does the centaur run the risk of getting lung cancer? What would the medical expert say to that?

MR. ELLIS: I think he'd say that's a fanciful question that I can't answer. 

JUSTICE ALITO: What should I do if I think there is no such thing as a Fourth Amendment malicious prosecution claim?

In other words, if a claim doesn’t exist, how in the world can the court determine what the standard is?

But Justice Amy Barrett pushed back. She asked the lawyer for the officers: Are you just arguing the Fourth Amendment claim doesn’t exist because you know you’re going to lose if the Court answers the favorable termination question?

JUSTICE AMY BARRETT: So I wonder if it's fair to infer that you think that your assessment of the case is that you're on relatively weaker ground on the question presented about what counts as a favorable termination and that you think your stronger argument is the upstream argument?

In his rebuttal argument, Ali, lawyer for Thompson, took Barrett’s comment and ran with it.

ALI: All the court needs to say is something like this: The Second Circuit decided this case on the basis that the favorable termination rule requires indications of innocence. It does not. A criminal proceeding terminates in favor of the accused when it ends, and the prosecution has failed to obtain a conviction. That's the thrust of it. That's three sentences, two if you like semicolons.

So that case looks at the balance between holding police accountable for constitutional violations. But also protecting them from meritless claims.

The second case is Hemphill v. New York. In that one, a street fight broke out on Easter Sunday. Somebody shot and killed a 2-year-old. New York tried to prosecute a man named Nicholas Morris for the murder. But that ended in a mistrial. New York then cut a deal with Morris and went after Darrell Hemphill instead. Hemphill denied killing the boy. But a jury convicted him. In part because the trial court had allowed in some evidence by Morris, the first guy. But Hemphill didn’t have an opportunity to cross-examine Morris. The question in this case is whether the trial court violated Hemphill’s Sixth Amendment right preserved in its Confrontation Clause. The right to confront his accuser.

Hemphill’s attorney took a microscope to the alleged error at trial. But Justice Alito took out a telescope.

JUSTICE ALITO: We take cases for the most part to decide important legal questions and not just to determine whether there was an error in a particular criminal trial in the Supreme Court of New York for the County of the Bronx, right? So the important legal question here is whether there can be a waiver of the Confrontation Clause right either expressly or implicitly. That's the underlying, that's what's important about this case.

Mary Reichard will be back next week to bring you up to date on more oral arguments the justices have heard this term. 

For now, that’s this week’s Legal Docket. I’m Jenny Rough.

MYRNA BROWN, HOST: Police in a coastal North Carolina community recently responded to reports of an attempted break-in.

But this wasn’t exactly the kind of call the Sunset Beach Police Department is accustomed to.

The suspect wasn’t trying to break into a home, a business, or a car but rather, a swimming pool.

He was quite short, but also quite long—about 10 feet long with scaly skin, and lots of sharp teeth.

When officers arrived, they found that the alligator had powered through the fencing. But he was having a little trouble getting into the pool itself.

Police escorted the gator to a nearby pond.

Happy ending for everyone!

It’s The World and Everything in It.

MYRNA BROWN, HOST: Next up on The World and Everything in It: the Monday Moneybeat.

NICK EICHER, HOST: Financial analyst and adviser David Bahnsen joins us now for our weekly conversation and commentary on markets and the economy. 

David, good morning.

DAVID BAHNSEN, GUEST: Good morning, Nick, good to be with you.

EICHER: It is worth starting out with what’s happening in Congress? It seems as though there’s been a good bit of intrigue around what might happen with the spending and tax plan. I mean, this thing was supposed to be done by September and we keep reading that key parts are falling by the wayside.

BAHNSEN: Yeah, I mean, I think it's a fascinating week. The concessions that the moderates have gotten out of the White House that the White House is now having to sell the progressives really indicates where this thing ended up going, it's become a political emergency, that they have to get some deal done. Every focus right now is on face saving. And there isn't a single sacred cow that hasn't been sacrificed, apparently, from what we're hearing, some of which are sources I have on the hill, and others are things in the press and things they're actually explicitly saying. They're not going to raise taxes on companies, they're not going to raise taxes on high net worth individuals or on investment. If you think about where we were, for most of this process, and the things people were afraid of with the corporate tax, or the capital gain tax, the child tax credit will only be extended one year, they were talking about making it permanent, they were talking about a huge burdensome climate bill around electricity production, that entire thing has been scrapped. So we will have to wait for the ultimate version, they're gonna get a price tag of over a trillion. And I am quite sure there will be plenty of stuff to complain about and criticize and not like, but there's just no way that the conclusion of this is anything other than James Madison and Thomas Jefferson and Alexander Hamilton did us a great favor, because the way in which our government works, the separation of powers, the organizational formation of the legislature really served to limit what could have been an incredibly abusive expansion of government.

EICHER: I picture Republicans in the Senate with a bowl of popcorn watching all this play out. They have zero role here. It’s all about the various factions among Democrats, and we’re seeing open hostility between, for example, Bernie Sanders, the Senate budget chairman, trying to pressure the West Virginia moderate Democrat Joe Manchin by writing an op-ed in the biggest newspaper in the state, in West Virginia. And Manchin just blew Sanders off. Manchin issued a statement that “no op-ed from a self-declared … socialist” is going to make him drop his objection to a quote-unquote “reckless expansion” of government. Manchin’s really bold, he seems to have the upper hand.

BAHNSEN: You know, what's interesting, for our listeners, Kristen Sinema really kind of became more important in this negotiation than Manchin. Now, as a matter of technicality, anybody with 50 votes, when you have 50 senators, and you need all 50, anyone is a swing vote, if they so choose to be. It's just that other moderates who had certain things they wanted, were either willing to kind of go along to get along, or they lobbied for their case behind the scenes. But Sinema was far more influential in the bill on reforming some of the tax abusiveness that they had planned and Manchin was more influential on some of the environmental aspects. So they each kind of had different parts to the bill. Manchin also really helped to get the overall price tag down. But I think there's just both interesting parts of both of them played the warfare between Sanders and Manchin is not much of a story because there's nobody in West Virginia who cared who is fond of the more progressive Vermont side and and then nobody in Vermont who would like Manchin anyways, they weren't really meant to be a kind of coalition so to speak. They're they're already at odds just demographically and electorally, but they Yeah, they had a little spat that played out a bit in the public there. That's not going to change. There's a lot of wounds from this that are going to impact that party. And really, quite candidly, the Virginia Governor race, I can't say enough. I don't think by the way it needs to be ‘Oh, the only outcome that really ends up mattering is if the Republican candidate wins’. That is huge. It's an earthquake in American political atmosphere. But even if the Democrat wins by one or two points in a state that Joe Biden just won by over 10 points, I still think that represents a signal through the national political mood that will have a lot of impact in 2022, as a lot of House Democrats have to run for reelection next year.

EICHER: Before we go here, David, I know you wanted to wait for November, but can you say there are some early signs that the jobs picture really has improved since the extended government unemployment benefits came to an end?

BAHNSEN: I don't know if you caught my vine in my investment writing this week, but I said, I'm gonna wait one more week to fully claim victory on this. The idea that the Federal supplement rolling off clearly had unbelievable impact, because now there's no question that the average week by week of the initial jobless claims, and especially those continuing claims, is in fact really starting to drop right around the time period that we sort of forecasted it would - with the federal supplement coming off. You know, you always want to make sure after two or three weeks of data, it's good to get one more week to just kind of verify the trend we're seeing. But yes, the claims on initial jobless and the continuing claims have definitely been going down. And I think it's in the exact time pattern you would have expected after the September roll off.

EICHER: David Bahnsen, financial analyst and adviser. He writes at dividendcafe.com. You can sign up there for his good email newsletter, David, thanks!

BAHNSEN: Good as always, Nick. Thanks so much.

NICK EICHER, HOST: Today is Monday, October 25th. Good morning! This is The World and Everything in It from listener-supported WORLD Radio. I’m Nick Eicher.

MYRNA BROWN, HOST: And I’m Myrna Brown. Next up: The WORLD History Book.

Today, great beginnings: a man of letters celebrates a birthday, Lady Liberty takes her place in New York Harbor, and Harvard University gets started.

Here’s senior correspondent Katie Gaultney.

KATIE GAULTNEY, SENIOR CORRESPONDENT: The oldest university in the United States got its start 385 years ago. On October 28th, 1636, the Massachusetts Bay Colony voted to establish a theological college that would become Harvard University.

SONG: “FAIR HARVARD”

Puritans migrated to the New World en masse, and by 1636, about 17,000 of them populated the colonies. They anticipated the need for clergy to provide spiritual guidance to members of the burgeoning settlements. So, the Great and General Court of the Massachusetts Bay Colony held a vote and set the wheels in motion. It wasn’t long before the school set up a printing press‍—the first in the colonies. And two-and-a-half years later, the school adopted the name of a benefactor, clergyman John Harvard, who bequeathed the school close to £800 and 400 books.

The school may have been founded with biblical ideals in mind, but the university shed its spiritual shell over a century ago. A 2020 survey by the university’s own newspaper found that while nearly 80 percent of faculty members describe themselves as “liberal” or “very liberal,” only 1 percent align with religiously orthodox viewpoints.

Moving now from higher learning to high ideals, like liberty. Or, Lady Liberty, to be precise. President Grover Cleveland dedicated the Statue of Liberty 135 years ago, on October 28th, 1886.

MUSIC: “AMERICA,” SAMUEL FRANCIS SMITH

France gifted the 151-foot-tall copper statue—officially named Liberty Enlightening the World—as a sign of friendship, commemorating the Franco-American alliance during the American Revolution. For its home, Congress chose Bedloe’s Island in New York Harbor. That spot later became known as “Liberty Island.”

But, as you might imagine, getting French sculptor Frederic-Auguste Bartholdi’s colossal creation from France to America would be no small undertaking. First, America had to prepare the island and create a base. Then, beginning in June 1885, the statue arrived piece-by-piece, in what amounted to more than 200 packing cases. Workers reassembled the thin copper sheets over a scaffolding designed by Gustave Eiffel—of Eiffel Tower fame.

James Meigs is the former editor-in-chief of Popular Mechanics. He told the History Channel the statue’s frame was an engineering marvel.

MEIGS: It was very sophisticated, no one had ever built anything of that scale before. And it had to support this heavy copper that if the frame sagged or was out of position at all, those copper sheets themselves would sag and crumble under their own weight, so it was really a revolutionary structure.

Welders fitted the last rivet at the dedication ceremony in October 1886. Public fundraising in America and France supported the work.

In his remarks, Cleveland proclaimed on that day that “we joyously contemplate our own deity keeping watch and ward before the open gates of America and … [we] will not forget that Liberty has here made her home, nor shall her chosen altar be neglected.”

Fireworks and a parade through New York City followed the dedication. Onlookers taken with the spirit of celebration threw shredded paper from building windows, making it the city’s first “ticker tape” parade.

And for our last of today’s History Book entries, I’ll need a few letters—like H, B, and D, to wish a “happy birthday” to longtime television game show host Pat Sajak. He turns 75 on October 26th.

AUDIENCE: Wheel of Fortune! (music)

Sajak grew up in Chicago before attending the city’s Columbia College. One of his instructors helped him land a job at a radio station. Eventually, he became a disc jockey for the U.S. Army, broadcasting in Saigon during the Vietnam War.

AFVN RADIO: Nashville Blast, “I Saw the Light,” and that’s going to do it for part number one of the Dawn Buster. This is Army Specialist Pat Sajak. Ten minutes of news and sports coming up…

He said he used to have a bit of a chip on his shoulder—feeling guilty for what he called his “relatively soft duty” in ‘nam. But the guilt subsided when the young soldiers in his listening audience thanked him for giving them a taste of the rock-and-roll music they were missing in America.

SAJAK: The idea was to create a situation where if they turned on the radio, they felt as if they were at home…

Back in the States, Sajak had a couple more radio gigs, then a couple of TV news jobs before the TV weatherman landed on media mogul Merv Griffin’s radar. In 1981, drawn to what he called Sajak’s “odd” sense of humor, Griffin invited him to take over from Chuck Woolery as host of Wheel of Fortune. And the rest, of course, is history. Sajak told NBC News in 2019 that he’s humbled to be a part of so many people’s weeknight memories.

SAJAK: It’s very evocative. People identify the show with raising families, with watching it with their grandmother. People come up to me almost every day and say, “I just lost my grandmother, and my fondest memory was sitting with her watching your show,” or “My kids learned the alphabet from your show.”

Sajak holds the spot for the longest tenure as a game show host.

Off the air, Sajak stands out from many in showbiz for his conservative political views. And he’s chairman of the board of directors of liberal arts school Hillsdale College in southern Michigan.

MUSIC: WHEEL OF FORTUNE CLOSING THEME

Chances are he’s celebrating this milestone birthday with his wife of 32 years, Lesly, with whom he raised a son and a daughter.

That’s this week’s History Book. I’m Katie Gaultney.

NICK EICHER, HOST: Tomorrow: Germany’s new government. We’ll find out how Berlin’s new leaders might approach their relationship with Washington.

And, free speech in California. We’ll tell you about a new law targeting vaccine protesters and how it’s also tripping up pro-life sidewalk counselors.

That and more tomorrow.

I’m Nick Eicher.

MYRNA BROWN, HOST: And I’m Myrna Brown.

The World and Everything in It comes to you from WORLD Radio.

WORLD’s mission is biblically objective journalism that informs, educates, and inspires.

In the book of Habakkuk, the prophet wrote, ‘Though the fig tree should not blossom, nor fruit be on the vines… yet I will rejoice in the Lord. I will take joy in the God of my salvation.’

Go now in grace and peace.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.