1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grosse from Bloomberg Radio. 2 00:00:08,680 --> 00:00:13,440 Speaker 2: The pushback was swift after marilynd Federal Judge Deborah Boardman 3 00:00:13,960 --> 00:00:18,800 Speaker 2: sentence Sophie Roski, charged as Nicholas John Rosky, to just 4 00:00:18,960 --> 00:00:23,360 Speaker 2: over eight years in prison. Attorney General Pam Bondi promised 5 00:00:23,400 --> 00:00:27,080 Speaker 2: the Justice Department would appeal what she called a woefully 6 00:00:27,320 --> 00:00:31,600 Speaker 2: insufficient sentence, which was well below the minimum thirty years 7 00:00:31,640 --> 00:00:35,159 Speaker 2: the government had asked for. Other conservative critics of the 8 00:00:35,240 --> 00:00:39,280 Speaker 2: light punishment doesn't send a strong enough message. Amid the 9 00:00:39,400 --> 00:00:43,680 Speaker 2: rise in threats to federal judges, and Senator Ted Cruz, 10 00:00:44,080 --> 00:00:49,600 Speaker 2: while decrying the violence against judges quote particularly fueled by 11 00:00:49,760 --> 00:00:54,760 Speaker 2: rhetoric by irresponsible politicians, criticized the judge and called for 12 00:00:54,800 --> 00:00:55,600 Speaker 2: her impeachment. 13 00:00:56,520 --> 00:01:02,960 Speaker 3: A left wing Biden appointed judge sentence this attempted murderer, 14 00:01:03,000 --> 00:01:05,920 Speaker 3: this attempted assassin to just eight years. The Department of 15 00:01:06,080 --> 00:01:10,720 Speaker 3: Justice asked for thirty years, and that Judge Downward departed 16 00:01:10,760 --> 00:01:16,800 Speaker 3: by twenty two years. Why because this left wing judge 17 00:01:17,080 --> 00:01:20,120 Speaker 3: said that the attempted murderer was transgender. 18 00:01:20,640 --> 00:01:24,440 Speaker 2: In fact, during the day long sentencing hearing, Judge Boardman 19 00:01:24,520 --> 00:01:28,840 Speaker 2: spent two hours explaining all the factors that led her 20 00:01:28,920 --> 00:01:32,640 Speaker 2: to the eight year sentence, primarily the fact that Rosky 21 00:01:32,880 --> 00:01:37,000 Speaker 2: phoned authorities from the scene, reported the incident, and turned 22 00:01:37,000 --> 00:01:41,800 Speaker 2: herself in. My guest is former Marilyn Federal Judge Paul Grimm, 23 00:01:41,959 --> 00:01:45,160 Speaker 2: director of the Baltch Judicial Institute at Duke Law School. 24 00:01:45,440 --> 00:01:50,240 Speaker 2: Did it seem like Judge Boardman anticipated that there would 25 00:01:50,280 --> 00:01:55,160 Speaker 2: be reaction to her sentencing and an appeal, considering that 26 00:01:55,240 --> 00:01:59,760 Speaker 2: she spent two hours explaining the factors that went into it. 27 00:02:00,880 --> 00:02:04,440 Speaker 1: I will say this, Judge Portman is very diligent and 28 00:02:04,640 --> 00:02:10,240 Speaker 1: enormously experienced judge. She also spent a considerable amount of 29 00:02:10,240 --> 00:02:14,119 Speaker 1: time as a federal public defender in the District of Maryland, 30 00:02:14,560 --> 00:02:19,720 Speaker 1: and so she has done hundreds of sentencings, both as 31 00:02:19,760 --> 00:02:23,760 Speaker 1: a lawyer and as a judge. So she really knows 32 00:02:23,880 --> 00:02:29,160 Speaker 1: what goes into what's required under the sentencing guidelines and 33 00:02:29,320 --> 00:02:33,400 Speaker 1: the Statute eighteen US Code three five five three. So 34 00:02:34,000 --> 00:02:38,040 Speaker 1: she knew in advance, of course, because the government filed 35 00:02:38,040 --> 00:02:42,760 Speaker 1: a sentencing memorandum and the defense filed a sentencing memorandum 36 00:02:43,320 --> 00:02:46,440 Speaker 1: that the sentencing guidelines. Because of the way in which 37 00:02:46,480 --> 00:02:51,720 Speaker 1: the case was charged with a terrorism connection enhancement, that 38 00:02:51,880 --> 00:02:55,960 Speaker 1: the guidelines were thirty years to life, and she issued 39 00:02:56,040 --> 00:02:59,200 Speaker 1: a sentence of eight years, perhaps a little bit more 40 00:02:59,240 --> 00:03:03,000 Speaker 1: than eight years, So she knew that that was either 41 00:03:03,040 --> 00:03:07,560 Speaker 1: a significant departure or a variance below what the guideline 42 00:03:07,800 --> 00:03:13,360 Speaker 1: recommendation was. And knowing how careful and thorough Judge Boardman is, 43 00:03:14,000 --> 00:03:17,200 Speaker 1: I'm sure she expected that if the government thought the 44 00:03:17,240 --> 00:03:21,280 Speaker 1: sentence was too lenient, that there might be an appeal. 45 00:03:21,600 --> 00:03:24,919 Speaker 1: And I'm sure that she wanted to make sure that 46 00:03:24,960 --> 00:03:27,720 Speaker 1: she had dotted all of her eyes and crossed all 47 00:03:27,720 --> 00:03:32,280 Speaker 1: of her teas in explaining and complying with both the 48 00:03:32,320 --> 00:03:37,360 Speaker 1: procedural requirements of the statute, which means that you calculated 49 00:03:37,360 --> 00:03:40,120 Speaker 1: the guidelines correctly. There was a challenge if there was 50 00:03:40,120 --> 00:03:43,760 Speaker 1: an objection to the calculation of the guidelines. And part 51 00:03:43,800 --> 00:03:48,000 Speaker 1: of the procedural requirement for a judge to sentence is 52 00:03:48,040 --> 00:03:51,680 Speaker 1: that the judge goes through the pre sentence report acknowledges 53 00:03:51,720 --> 00:03:55,760 Speaker 1: what the parties submitted. If there are any challenges by 54 00:03:55,800 --> 00:03:58,680 Speaker 1: one side or the other, the rules on those gives 55 00:03:58,720 --> 00:04:01,720 Speaker 1: the rationale for that. You know, Judge Boardman is an 56 00:04:01,760 --> 00:04:06,040 Speaker 1: active judge. So during the presentation by the government and 57 00:04:06,080 --> 00:04:10,320 Speaker 1: the presentation by the defense. She likely asked questions. So 58 00:04:10,560 --> 00:04:12,480 Speaker 1: Judge Bourbman is the kind of judge who's going to 59 00:04:12,560 --> 00:04:15,600 Speaker 1: let everyone who wants to be heard be heard fully. 60 00:04:16,240 --> 00:04:21,520 Speaker 1: She'll listen respectfully and carefully. She'll ask questions, She'll make 61 00:04:21,560 --> 00:04:24,479 Speaker 1: sure she understands what the arguments are, and then she 62 00:04:24,600 --> 00:04:28,640 Speaker 1: will calculate the guidelines. She would then do what the 63 00:04:28,680 --> 00:04:33,640 Speaker 1: guidelines require is to analyze the sentencing factors that are 64 00:04:33,720 --> 00:04:37,200 Speaker 1: set forth for a judge to consider under eighteen US 65 00:04:37,240 --> 00:04:39,080 Speaker 1: Code three five five three. 66 00:04:39,279 --> 00:04:42,320 Speaker 2: Tell us about some of those sentencing factors. 67 00:04:42,640 --> 00:04:44,880 Speaker 1: There are many of them. So you have to talk 68 00:04:44,920 --> 00:04:48,880 Speaker 1: about the nature and circumstances of the offense, and she did, 69 00:04:48,960 --> 00:04:52,200 Speaker 1: and she acknowledged it was a very serious offense. You 70 00:04:52,360 --> 00:04:54,640 Speaker 1: have to look at what kind of a sentence would 71 00:04:55,080 --> 00:04:57,960 Speaker 1: be respected by the public as being a sufficient sentence 72 00:04:58,160 --> 00:05:01,520 Speaker 1: for the nature of the circums stances. Given the personal 73 00:05:01,600 --> 00:05:05,400 Speaker 1: characteristics of the defendant. You have to consider what kind 74 00:05:05,400 --> 00:05:08,480 Speaker 1: of a sentence would deter this particular defendant from committing 75 00:05:08,520 --> 00:05:12,000 Speaker 1: future crimes. And that's called specific deterrence. You have to 76 00:05:12,040 --> 00:05:15,840 Speaker 1: consider general deterrence. What would deter members of the community 77 00:05:15,839 --> 00:05:19,680 Speaker 1: from doing that given the number of threats against US 78 00:05:19,760 --> 00:05:22,760 Speaker 1: judges that have been occurring for over well over a decade, 79 00:05:22,800 --> 00:05:25,479 Speaker 1: but particularly in the last ten months, you know what 80 00:05:25,560 --> 00:05:27,760 Speaker 1: kind of a sentence would be necessary to deter people 81 00:05:27,760 --> 00:05:31,120 Speaker 1: from making threats against judges serious offense. You have to 82 00:05:31,160 --> 00:05:35,680 Speaker 1: talk about the history and characteristics of this particular defendant, 83 00:05:35,800 --> 00:05:39,320 Speaker 1: whether they have any prior convictions, what kind of convictions 84 00:05:39,320 --> 00:05:42,880 Speaker 1: those were, what type of offenses they were, And you know, 85 00:05:43,160 --> 00:05:45,760 Speaker 1: at that point you have to consider certain factors that 86 00:05:45,920 --> 00:05:49,680 Speaker 1: might be specific to the issues, such as mental health 87 00:05:49,680 --> 00:05:53,240 Speaker 1: issues or physical health issues of a particular defendant. You 88 00:05:53,320 --> 00:05:57,320 Speaker 1: have to consider whether or not a sentence should include 89 00:05:57,920 --> 00:06:02,400 Speaker 1: certain aspects that will assist the rehabilitation of a defendant, 90 00:06:02,480 --> 00:06:06,760 Speaker 1: such as drug treatment, anger management, or and then when 91 00:06:06,800 --> 00:06:11,200 Speaker 1: you've gone through all of those, you explain how you 92 00:06:11,400 --> 00:06:14,520 Speaker 1: ranked and evaluated each factor. This is, of course, comes 93 00:06:14,560 --> 00:06:17,200 Speaker 1: after you've calculated the guidelines and made a ruling on 94 00:06:17,240 --> 00:06:19,880 Speaker 1: the guidelines, and you've heard from everybody, and then the 95 00:06:19,880 --> 00:06:22,719 Speaker 1: statute says that you are to issue a sentence which 96 00:06:22,760 --> 00:06:27,520 Speaker 1: is sufficient, but not greater than necessary to accomplish the 97 00:06:27,560 --> 00:06:30,600 Speaker 1: sentencing goals of eighteen US Code Section three five to 98 00:06:30,680 --> 00:06:34,279 Speaker 1: five to three. So that's the procedural part. I'd be 99 00:06:34,400 --> 00:06:38,880 Speaker 1: shocked if procedurally, Judge Boardman did not do all of 100 00:06:38,920 --> 00:06:43,799 Speaker 1: those steps with great detail. The substantive part is whether 101 00:06:43,960 --> 00:06:48,600 Speaker 1: or not the judge, in announcing the sentence either overvalued 102 00:06:48,680 --> 00:06:51,920 Speaker 1: or undervalued one particular factor over another. 103 00:06:52,680 --> 00:06:55,040 Speaker 2: That does seem to be where the appeal will likely 104 00:06:55,080 --> 00:06:59,159 Speaker 2: be focused on, So tell us what that might look like. 105 00:07:00,160 --> 00:07:03,160 Speaker 1: So if a judge didn't say too much about deterrence 106 00:07:03,680 --> 00:07:06,720 Speaker 1: but talked a lot about rehabilitation, then an appellate court 107 00:07:06,800 --> 00:07:09,680 Speaker 1: might say, well, now, wait a minute, you gave too 108 00:07:09,760 --> 00:07:13,600 Speaker 1: much emphasis to rehabilitation, not enough emphasis to deterrent or 109 00:07:13,760 --> 00:07:17,840 Speaker 1: seriousness of the offense or the nature of punishment that 110 00:07:17,960 --> 00:07:22,200 Speaker 1: would command respect within the public, and the appellate court 111 00:07:22,280 --> 00:07:26,840 Speaker 1: will look at the sentence for both procedural and substantive correctness. 112 00:07:27,080 --> 00:07:30,520 Speaker 1: There is a deferential review standard, and only if there's 113 00:07:30,560 --> 00:07:35,080 Speaker 1: been an abusive discretion will the appellate court overrule. So 114 00:07:35,560 --> 00:07:38,920 Speaker 1: there's just a lot of moving pieces to a sentencing 115 00:07:39,400 --> 00:07:42,000 Speaker 1: in any case in federal court, but particularly for something 116 00:07:42,080 --> 00:07:45,400 Speaker 1: like this, there was a significant disagreement between what the 117 00:07:45,440 --> 00:07:48,480 Speaker 1: defense said was an appropriate sentence and what the government 118 00:07:48,520 --> 00:07:51,760 Speaker 1: was asking for the fact that she took the time 119 00:07:51,800 --> 00:07:54,840 Speaker 1: that she did. Suggest to me that she did each 120 00:07:54,960 --> 00:07:57,160 Speaker 1: in every one of the things that she was required 121 00:07:57,240 --> 00:08:00,200 Speaker 1: to do, and by that what I mean she she 122 00:08:00,320 --> 00:08:03,320 Speaker 1: calculated the guidelines, she discussed what the party said, she 123 00:08:03,440 --> 00:08:07,240 Speaker 1: resolved any disagreements. She analyzed each of the factors under 124 00:08:07,520 --> 00:08:10,480 Speaker 1: eighteen US Code Section three five five to three. She 125 00:08:10,600 --> 00:08:13,360 Speaker 1: explained the weight she was giving to each one. I 126 00:08:13,400 --> 00:08:16,400 Speaker 1: would be surprised if there was a procedural deficiency in 127 00:08:16,480 --> 00:08:21,560 Speaker 1: what she said. If there is any significant issue on appeal, 128 00:08:22,240 --> 00:08:24,640 Speaker 1: it might be more on the substantive one whether or 129 00:08:24,680 --> 00:08:27,520 Speaker 1: not some of the factors that she gave weight to 130 00:08:27,720 --> 00:08:31,520 Speaker 1: and discussed she gave excessive weight to those factors as 131 00:08:31,600 --> 00:08:36,000 Speaker 1: opposed to other aspects of the sentencing statute. So that's 132 00:08:36,360 --> 00:08:38,600 Speaker 1: likely to be an area that will be explored on appeal. 133 00:08:38,800 --> 00:08:42,280 Speaker 2: As far as appellet arguments, one would be, as you mentioned, 134 00:08:42,320 --> 00:08:46,480 Speaker 2: abused her discretion by not properly balancing the sentencing factors. 135 00:08:46,520 --> 00:08:50,440 Speaker 2: And one thing that stood out was that she gave 136 00:08:51,320 --> 00:08:56,080 Speaker 2: credit to Roskie for having called the police after deciding 137 00:08:56,080 --> 00:08:58,559 Speaker 2: not to carry out the crime. She told the nine 138 00:08:58,559 --> 00:09:02,360 Speaker 2: to eleven operators she needed psychiatric help. The judge said, 139 00:09:02,440 --> 00:09:05,520 Speaker 2: in my seventeen years of experience in federal criminal law 140 00:09:05,520 --> 00:09:08,360 Speaker 2: in the District of Maryland, as a public defender and 141 00:09:08,400 --> 00:09:10,680 Speaker 2: as a judge, I have never heard of another criminal 142 00:09:10,720 --> 00:09:15,200 Speaker 2: defendant doing that. Is that something that kind of determination 143 00:09:15,559 --> 00:09:18,800 Speaker 2: that the prosecution might use on appeal? 144 00:09:19,840 --> 00:09:24,640 Speaker 1: Well, one of the things that you have to look 145 00:09:24,679 --> 00:09:29,320 Speaker 1: at in terms of a proper sentencing under the sentencing 146 00:09:29,360 --> 00:09:34,199 Speaker 1: regime is was there acceptance of responsibility? And clearly there 147 00:09:34,280 --> 00:09:37,320 Speaker 1: was acceptance of responsibility. If a person, I mean, if 148 00:09:37,400 --> 00:09:41,200 Speaker 1: you go to law enforcement and say, hey, I did this, 149 00:09:41,720 --> 00:09:44,439 Speaker 1: I have mental health problems, I need help. I did this, 150 00:09:45,040 --> 00:09:49,360 Speaker 1: I'm acknowledging it, and then pled guilty, those are important factors. 151 00:09:49,840 --> 00:09:53,400 Speaker 1: Oftentimes the defendants don't plead guilty. They make the government 152 00:09:53,440 --> 00:09:56,319 Speaker 1: go to trial and prove the case. So acceptance of 153 00:09:56,360 --> 00:10:01,439 Speaker 1: responsibility is clearly an important factor. The fact that Judge 154 00:10:01,480 --> 00:10:04,240 Speaker 1: Boardman said that in her seventeen years in criminal law 155 00:10:04,280 --> 00:10:08,200 Speaker 1: in federal court that she had never seen another defendant 156 00:10:08,320 --> 00:10:12,240 Speaker 1: do that was essentially tantamount to saying that in her 157 00:10:12,600 --> 00:10:17,200 Speaker 1: seventeen years of experience, which is profound, that this was 158 00:10:17,800 --> 00:10:21,680 Speaker 1: not just simply acceptance of responsibility and acknowledgment of guilt, 159 00:10:21,760 --> 00:10:26,720 Speaker 1: but to a fairly extraordinary extent, And that might explain 160 00:10:26,800 --> 00:10:30,600 Speaker 1: why it was if that factor weighed heavily on the 161 00:10:30,640 --> 00:10:34,200 Speaker 1: sentence that she gave, why she valued it and waited 162 00:10:34,240 --> 00:10:38,280 Speaker 1: it so much. If the kind of acceptance of responsibility 163 00:10:38,360 --> 00:10:41,160 Speaker 1: is hew half hearted. You know, if somebody says, well, 164 00:10:41,200 --> 00:10:42,840 Speaker 1: I'm sorry that you didn't like the fact that this 165 00:10:42,920 --> 00:10:46,559 Speaker 1: clim was committed, that's not a sincere apology. If somebody 166 00:10:47,040 --> 00:10:50,800 Speaker 1: doesn't plead guilty until after the government has had to 167 00:10:51,480 --> 00:10:56,160 Speaker 1: respond to motions to dismiss, and after they filed emotion 168 00:10:56,280 --> 00:10:59,120 Speaker 1: to suppress and it's been a hearing, and this hearing 169 00:10:59,200 --> 00:11:04,560 Speaker 1: has been overruled, then the defend and that circumstances waited 170 00:11:04,640 --> 00:11:07,880 Speaker 1: until every effort they could to try to knock out 171 00:11:07,920 --> 00:11:12,040 Speaker 1: the crime was unsuccessful, and then and only then pled guilty. 172 00:11:12,240 --> 00:11:16,280 Speaker 1: You might characterize that as begrudgingly pleading guilty. And if 173 00:11:16,320 --> 00:11:20,839 Speaker 1: she believed that this person was one of the most 174 00:11:20,960 --> 00:11:25,120 Speaker 1: sincere in their acceptance of responsibility and did the most 175 00:11:25,200 --> 00:11:28,480 Speaker 1: to not put the government to a lengthy investigation and 176 00:11:29,200 --> 00:11:34,120 Speaker 1: prosecution and motions practice and all of that, then that 177 00:11:34,240 --> 00:11:37,120 Speaker 1: might be something that she would comment on in order 178 00:11:37,200 --> 00:11:41,079 Speaker 1: to explain why she gave that factor the weight that 179 00:11:41,200 --> 00:11:44,240 Speaker 1: she did in deciding her sentence. 180 00:11:44,520 --> 00:11:48,120 Speaker 2: Coming up next, I'll continue this conversation with Judge Paul Grimm. 181 00:11:48,679 --> 00:11:52,520 Speaker 2: We'll discuss the rise in threats to federal judges and 182 00:11:52,559 --> 00:11:58,559 Speaker 2: the deterrent effect of sentences. You're listening to Bloomberg Marilyn. 183 00:11:58,679 --> 00:12:02,960 Speaker 2: Federal judge Deborah Boardman sentenced the would be assassin of 184 00:12:03,040 --> 00:12:07,640 Speaker 2: Supreme Court Justice Brett Kavanaugh to just over eight years 185 00:12:07,640 --> 00:12:12,800 Speaker 2: in prison. Sophie Roski, charged as Nicholas John Roski, was 186 00:12:12,920 --> 00:12:17,199 Speaker 2: arrested near Cavanaugh's Maryland home in twenty twenty two after 187 00:12:17,240 --> 00:12:19,920 Speaker 2: the leak of a draft opinion of the Supreme Court's 188 00:12:19,920 --> 00:12:25,280 Speaker 2: opinion overturning the constitutional right to abortion. During sentencing, Boardman 189 00:12:25,400 --> 00:12:29,440 Speaker 2: gave Roski credit for having called police after deciding not 190 00:12:29,600 --> 00:12:33,559 Speaker 2: to carry out the crime, saying that otherwise authorities may 191 00:12:33,559 --> 00:12:37,880 Speaker 2: have never known about the plot. Conservatives have seized on 192 00:12:38,080 --> 00:12:41,959 Speaker 2: questions that the judge asked about treatment options for Roski 193 00:12:42,120 --> 00:12:46,120 Speaker 2: in a male federal penitentiary as she's a transgender woman. 194 00:12:46,480 --> 00:12:49,800 Speaker 2: I've been talking to former Maryland judge Paul Grimm, a 195 00:12:49,840 --> 00:12:54,760 Speaker 2: professor at Duke Law School. Threats against federal judges, as 196 00:12:54,760 --> 00:12:58,680 Speaker 2: you mentioned, have risen dramatically, with this year on track 197 00:12:58,800 --> 00:13:02,640 Speaker 2: to become a record uar for such threats, and the 198 00:13:02,679 --> 00:13:06,840 Speaker 2: government here argued that a harsh sentence was necessary to 199 00:13:06,920 --> 00:13:11,920 Speaker 2: deter further threats or attacks against judges or other public officials. 200 00:13:12,400 --> 00:13:16,400 Speaker 2: What role does the impact of a sentence beyond the 201 00:13:16,440 --> 00:13:18,800 Speaker 2: defendant have in a sentencing. 202 00:13:19,280 --> 00:13:22,439 Speaker 1: That's a great question. You know, the people who study 203 00:13:22,520 --> 00:13:26,679 Speaker 1: criminal law, there's enough writing that if you stack them 204 00:13:26,679 --> 00:13:30,560 Speaker 1: all the articles and the books one on top of another, 205 00:13:30,679 --> 00:13:35,080 Speaker 1: would probably equal a pretty good sized skyscraper. You know. 206 00:13:35,200 --> 00:13:40,400 Speaker 1: The theory of criminal sentencing that goes back decades and 207 00:13:40,440 --> 00:13:43,840 Speaker 1: decades and decades is that what do you give a 208 00:13:43,880 --> 00:13:47,080 Speaker 1: criminal sentence to do? And there are multiple theories. One 209 00:13:47,160 --> 00:13:50,480 Speaker 1: is you could give a sentence that will deter that 210 00:13:50,559 --> 00:13:56,440 Speaker 1: particular defendant and other similar defendants from committing crimes of 211 00:13:56,480 --> 00:13:59,959 Speaker 1: that nature in the future. One of it is to rebuild. 212 00:14:00,200 --> 00:14:03,760 Speaker 1: Take the defendant, you sentenced them so that they have 213 00:14:03,840 --> 00:14:06,240 Speaker 1: a period of imprisonment, and then you put things in 214 00:14:06,280 --> 00:14:08,680 Speaker 1: place to make sure that when they finished that that 215 00:14:08,760 --> 00:14:12,720 Speaker 1: they have the skills and the likely avenue to succeed 216 00:14:12,920 --> 00:14:15,280 Speaker 1: and be law abiding. That's certainly in the public interest. 217 00:14:15,440 --> 00:14:17,280 Speaker 1: And then another one is is that you're just doing 218 00:14:17,280 --> 00:14:22,200 Speaker 1: it to punish for retribution. So they are competing theories. 219 00:14:22,400 --> 00:14:24,560 Speaker 1: Some people say, well, no, it shouldn't be this theory, 220 00:14:24,600 --> 00:14:27,040 Speaker 1: it should be that theory. But there's a lot of 221 00:14:27,120 --> 00:14:31,880 Speaker 1: debate about whether or not specific deterrence and general deterrence 222 00:14:32,280 --> 00:14:35,680 Speaker 1: actually are effective in doing that. So let me give 223 00:14:35,680 --> 00:14:38,840 Speaker 1: you an example. If you have a crime that was 224 00:14:38,880 --> 00:14:43,040 Speaker 1: committed in the heat of passion and this person's anger 225 00:14:43,360 --> 00:14:48,040 Speaker 1: or hatred was inflamed and then they did it, there's 226 00:14:48,080 --> 00:14:52,840 Speaker 1: a lot of research that suggests that the deterrence is 227 00:14:52,840 --> 00:14:55,760 Speaker 1: not that great because if you're you know, if you're reasoning, 228 00:14:55,880 --> 00:14:57,680 Speaker 1: you know the idea of that, well, you know, if 229 00:14:58,000 --> 00:15:01,080 Speaker 1: I send this email threatening this judge, judge, maybe I'm 230 00:15:01,080 --> 00:15:02,800 Speaker 1: going to get a thirty year sentence, so I won't 231 00:15:02,800 --> 00:15:06,120 Speaker 1: do it. That's the theory. But why do people send 232 00:15:06,120 --> 00:15:09,280 Speaker 1: those emails? And one of the reasons why there's so 233 00:15:09,400 --> 00:15:12,840 Speaker 1: many threats against judges is that for the last ten 234 00:15:12,920 --> 00:15:17,240 Speaker 1: years at least, and specifically in the last ten months, 235 00:15:17,920 --> 00:15:24,320 Speaker 1: there have been unprecedented amounts of threats against judges and 236 00:15:24,440 --> 00:15:26,800 Speaker 1: the Martial Service. I think the last data that I 237 00:15:26,840 --> 00:15:29,480 Speaker 1: saw was that as of September, there were over five 238 00:15:29,600 --> 00:15:33,600 Speaker 1: hundred credible threats that the Marshall Service found against federal judges, 239 00:15:34,080 --> 00:15:37,760 Speaker 1: and that somehow more than three hundred judges federal judges 240 00:15:37,800 --> 00:15:41,080 Speaker 1: have been threatened. You know, they're only about seven hundred 241 00:15:41,120 --> 00:15:44,480 Speaker 1: federal judges in the entire judiciary, so three hundred have 242 00:15:44,600 --> 00:15:47,720 Speaker 1: been threatened. Then that's almost half of the sitting judges 243 00:15:47,760 --> 00:15:50,120 Speaker 1: have been threatened. Then you go back and say, well, 244 00:15:50,160 --> 00:15:53,120 Speaker 1: who's doing the threats? And when you see the kind 245 00:15:53,160 --> 00:15:57,640 Speaker 1: of language that political figures and commentators have been using, 246 00:15:58,120 --> 00:16:01,240 Speaker 1: the kind of language that they are accusing judges who 247 00:16:01,280 --> 00:16:04,480 Speaker 1: are just simply trying to do their job of being 248 00:16:04,560 --> 00:16:12,080 Speaker 1: traders or radical or extreme or unpatriotic or treason This 249 00:16:12,720 --> 00:16:15,840 Speaker 1: if you look at footnote two of the opinion issued 250 00:16:15,880 --> 00:16:19,640 Speaker 1: by the US district judge who dismissed the government's lawsuit 251 00:16:19,720 --> 00:16:21,920 Speaker 1: against all the judges of the U S District Court 252 00:16:21,960 --> 00:16:26,200 Speaker 1: for the District of Maryland. In that the judge said, 253 00:16:26,360 --> 00:16:29,560 Speaker 1: you know, in the last few months, since the beginning 254 00:16:29,600 --> 00:16:33,640 Speaker 1: of the year, either public officials or representatives of public 255 00:16:33,680 --> 00:16:37,520 Speaker 1: officials have accused federal judges of the following and listed 256 00:16:37,960 --> 00:16:41,680 Speaker 1: about seven or eight of very extreme language used to 257 00:16:41,680 --> 00:16:46,960 Speaker 1: describe federal judges and in very extreme ways, and found 258 00:16:47,040 --> 00:16:49,520 Speaker 1: that it was essentially a concerted effort on the part 259 00:16:49,520 --> 00:16:51,880 Speaker 1: of the administration to do that. That's a finding of 260 00:16:51,880 --> 00:16:55,120 Speaker 1: a federal judge in an actual case, and that was 261 00:16:55,160 --> 00:16:59,680 Speaker 1: a judge appointed by a Republican president. So what I'm 262 00:16:59,720 --> 00:17:03,800 Speaker 1: saying is is that if the government as an entity 263 00:17:04,000 --> 00:17:08,120 Speaker 1: is concerned about preventing threats against judges, and you're trying 264 00:17:08,119 --> 00:17:11,280 Speaker 1: to find the most effective way of doing that, then 265 00:17:11,600 --> 00:17:15,560 Speaker 1: you know, reasonable minds can disagree about whether having one 266 00:17:15,680 --> 00:17:19,000 Speaker 1: thirty year sentence for a person with mental health who 267 00:17:19,520 --> 00:17:24,400 Speaker 1: has no significant prior record of criminal activity is certainly 268 00:17:24,480 --> 00:17:27,919 Speaker 1: violent activity with mental health issues, whether that's going to 269 00:17:27,960 --> 00:17:32,119 Speaker 1: deter or whether perhaps the administration is should stop making 270 00:17:32,160 --> 00:17:38,680 Speaker 1: these personal, extraordinarily emotional attacks against judges if they disagree 271 00:17:38,720 --> 00:17:40,760 Speaker 1: with the judges' rulings, which is going to be more 272 00:17:40,800 --> 00:17:44,040 Speaker 1: effective in the long run. Well, you know, some people 273 00:17:44,040 --> 00:17:46,280 Speaker 1: would say you need a belt and suspenders, do them both. 274 00:17:46,440 --> 00:17:50,479 Speaker 1: But the Department of Justice was serious about deterring threats 275 00:17:50,560 --> 00:17:55,600 Speaker 1: against federal judges, then they would encourage the spokespeople within 276 00:17:55,920 --> 00:17:59,120 Speaker 1: the Department of Justice, as well as others within the government, 277 00:17:59,600 --> 00:18:03,359 Speaker 1: to stop using the kind of intemperate, incendiary language that 278 00:18:03,440 --> 00:18:08,080 Speaker 1: has been used repeatedly in the last ten months to 279 00:18:08,240 --> 00:18:10,640 Speaker 1: vilify and intimidate federal judges. 280 00:18:11,160 --> 00:18:15,119 Speaker 2: Judges have a lot of discretion in sentencing. So what 281 00:18:15,240 --> 00:18:19,000 Speaker 2: does it take for a federal appellate court to reverse 282 00:18:19,160 --> 00:18:23,240 Speaker 2: a judge's sentencing decision. I know, the Fourth Circuit did 283 00:18:23,600 --> 00:18:29,080 Speaker 2: vacate a seventeen day time serve sentence that Judge Brinckema 284 00:18:29,200 --> 00:18:32,240 Speaker 2: handed down. Now, that was a difference between a seventeen 285 00:18:32,359 --> 00:18:36,520 Speaker 2: day time served sentence and the guidelines that call for 286 00:18:36,640 --> 00:18:40,359 Speaker 2: sixteen years to nineteen years. And this case will also 287 00:18:40,440 --> 00:18:43,639 Speaker 2: be decided by the Fourth Circuit. I mean, is it 288 00:18:43,760 --> 00:18:45,800 Speaker 2: unusual to have a sentence reversed? 289 00:18:46,280 --> 00:18:49,359 Speaker 1: Well, let me put it this way, It's not unusual 290 00:18:49,520 --> 00:18:52,080 Speaker 1: the appellate court if they do the two step analysis 291 00:18:52,160 --> 00:18:55,720 Speaker 1: procedural and substantive, and they find that there was a 292 00:18:55,760 --> 00:18:58,159 Speaker 1: failure in either one or the other. You know, if 293 00:18:58,200 --> 00:19:01,359 Speaker 1: it's a procedural defect, then of course the judge didn't 294 00:19:01,359 --> 00:19:03,399 Speaker 1: do what was required. If the judge does do all 295 00:19:03,440 --> 00:19:06,800 Speaker 1: this required, but then the pell Court feels substantively that 296 00:19:06,840 --> 00:19:09,480 Speaker 1: the judge gave too much credit on one factor but 297 00:19:09,560 --> 00:19:12,399 Speaker 1: not another. You know that obviously in the one that 298 00:19:12,440 --> 00:19:16,080 Speaker 1: you made reference to with Judge Brikhama. Okay, so sixteen 299 00:19:16,160 --> 00:19:19,800 Speaker 1: to nineteen and a half was the guidelines recommendation, and 300 00:19:19,920 --> 00:19:23,320 Speaker 1: she gave seventeen days time served, and the fourth cicket 301 00:19:23,359 --> 00:19:27,600 Speaker 1: said that was an abusive discretion. She resentenced and I 302 00:19:27,640 --> 00:19:29,600 Speaker 1: think the re sentence was to like three years. Yeah, 303 00:19:30,720 --> 00:19:34,960 Speaker 1: still a significant departure below the you know, sixteen to 304 00:19:35,040 --> 00:19:38,720 Speaker 1: nineteen year And remember these are guidelines. You know, they're 305 00:19:38,760 --> 00:19:42,040 Speaker 1: not mandatory, and you had a United States Supreme Court 306 00:19:42,119 --> 00:19:44,680 Speaker 1: say that if the guidelines were interpreted as mandatory, that 307 00:19:44,760 --> 00:19:48,000 Speaker 1: there may be a separation of powers, violation of the Constitution, 308 00:19:48,520 --> 00:19:51,920 Speaker 1: and in order to preserve the structure of the sentencing guidelines, 309 00:19:52,240 --> 00:19:56,480 Speaker 1: they should be interpreted as discretionary. Discretion has to be 310 00:19:56,560 --> 00:19:59,040 Speaker 1: used in a way that's not abusive. But you know, 311 00:19:59,240 --> 00:20:02,640 Speaker 1: Congress has a if they wanted to say that making 312 00:20:02,720 --> 00:20:06,600 Speaker 1: a threat against a federal judge was punishable by a 313 00:20:06,640 --> 00:20:11,480 Speaker 1: mandatory sentence of fifteen to twenty years, then they could 314 00:20:11,520 --> 00:20:14,560 Speaker 1: certainly do that Congress has not done that, and so 315 00:20:14,960 --> 00:20:17,520 Speaker 1: the way in which that sentencing of thirty years to 316 00:20:17,600 --> 00:20:20,639 Speaker 1: life came out was a function of guidelines and certain 317 00:20:20,680 --> 00:20:24,200 Speaker 1: factors in that. And you know, even in the after 318 00:20:24,240 --> 00:20:27,240 Speaker 1: a reversal, it doesn't mean that the judge lacks the 319 00:20:27,280 --> 00:20:30,879 Speaker 1: discretion to be able to depart below what the guidelines 320 00:20:30,920 --> 00:20:34,680 Speaker 1: recommendations are if they believe that a guideline sentence would 321 00:20:34,720 --> 00:20:37,840 Speaker 1: be more than what's sufficient but no more than necessary 322 00:20:38,280 --> 00:20:42,360 Speaker 1: to accomplish the overall goals of federal sentencing, the appellate 323 00:20:42,359 --> 00:20:47,320 Speaker 1: court will be mindful of the you know, the nature 324 00:20:47,359 --> 00:20:51,879 Speaker 1: of this. It's not insignificant that Supreme Court justice was 325 00:20:51,880 --> 00:20:55,480 Speaker 1: the one threatened, but you know, child court judges are 326 00:20:55,480 --> 00:20:58,159 Speaker 1: getting threatened constantly, and I would say, how many of 327 00:20:58,200 --> 00:21:01,760 Speaker 1: those five hundred plus threats are against Supreme Court justices 328 00:21:01,760 --> 00:21:05,600 Speaker 1: as opposed to trial judges. There's just an extraordinary large 329 00:21:05,680 --> 00:21:08,160 Speaker 1: number of these threats coming down the pike with language 330 00:21:08,200 --> 00:21:11,200 Speaker 1: that is so intemperate from people who are in high 331 00:21:11,200 --> 00:21:15,040 Speaker 1: positions in government, who have traditionally had more moderation in 332 00:21:15,080 --> 00:21:17,520 Speaker 1: the way in which they discussed this. So there's a 333 00:21:17,560 --> 00:21:20,800 Speaker 1: lot of interest in this. The panel that gets it will, 334 00:21:20,880 --> 00:21:23,199 Speaker 1: I'm sure do a very thorough job of going through it. 335 00:21:23,520 --> 00:21:26,240 Speaker 1: I can tell you this, there will be plenty of 336 00:21:26,960 --> 00:21:30,119 Speaker 1: appellate briefing by both the defense and the government, and 337 00:21:30,720 --> 00:21:33,840 Speaker 1: there may even be anekas briefs by various groups or 338 00:21:33,960 --> 00:21:36,359 Speaker 1: entities that think that they have an insight that would 339 00:21:36,400 --> 00:21:39,880 Speaker 1: help the court in deciding the appeal. You're right, this 340 00:21:39,960 --> 00:21:42,919 Speaker 1: is a high profile case, and I suspect that George 341 00:21:42,960 --> 00:21:45,119 Speaker 1: Boardman was aware that it was high profile from the 342 00:21:45,200 --> 00:21:47,919 Speaker 1: get go, and that's probably why she was as careful 343 00:21:47,960 --> 00:21:50,120 Speaker 1: as she was in her Roally. 344 00:21:50,480 --> 00:21:53,399 Speaker 2: This will be a closely watched appeal. Thank you so much, 345 00:21:53,520 --> 00:21:57,680 Speaker 2: Judge grim that's former federal judge Paul Grimm of Duke 346 00:21:57,760 --> 00:22:01,240 Speaker 2: Law School, coming up next on the Bloomberg Law Show. 347 00:22:01,760 --> 00:22:05,080 Speaker 2: Pets are treated like children in divorces in New York, 348 00:22:05,600 --> 00:22:08,640 Speaker 2: but not so in other areas of the law. I'm 349 00:22:08,720 --> 00:22:13,120 Speaker 2: June Grosso. When you're listening to Bloomberg, you may think 350 00:22:13,160 --> 00:22:16,240 Speaker 2: of your dog or other pets as a cherished member 351 00:22:16,280 --> 00:22:20,520 Speaker 2: of the family. After all, they often have designer clothes, 352 00:22:20,840 --> 00:22:24,480 Speaker 2: special meals delivered, and toys that any kid would love. 353 00:22:25,160 --> 00:22:27,440 Speaker 2: But even though New York law has come a long 354 00:22:27,480 --> 00:22:30,640 Speaker 2: way in recognizing pets as part of the family. When 355 00:22:30,640 --> 00:22:34,520 Speaker 2: there's a divorce or an accident, they're still treated as 356 00:22:34,640 --> 00:22:38,400 Speaker 2: property in the family will my guest is Suzanne, though 357 00:22:38,600 --> 00:22:42,440 Speaker 2: a trust and a states lawyer. In most states, how 358 00:22:42,480 --> 00:22:47,280 Speaker 2: are pets treated. Are they treated as personal property or 359 00:22:47,640 --> 00:22:48,359 Speaker 2: something else? 360 00:22:48,880 --> 00:22:51,239 Speaker 4: For a long standing principles, pets have been treated as 361 00:22:51,280 --> 00:22:55,040 Speaker 4: some form of personal property, and certainly New York pets 362 00:22:55,040 --> 00:22:57,920 Speaker 4: are treated as tangible personal property. So I'm an a 363 00:22:57,960 --> 00:23:01,520 Speaker 4: state's lawyer. I oftentimes special provisions for pets, but they're 364 00:23:01,520 --> 00:23:05,720 Speaker 4: within the article that's generally covered tangible personal property that 365 00:23:06,000 --> 00:23:09,320 Speaker 4: covers things like your furniture or valuable artwork or antiques. 366 00:23:09,680 --> 00:23:11,719 Speaker 4: And I definitely do have clients to take offense to that. 367 00:23:11,960 --> 00:23:16,560 Speaker 4: But unfortunately, in New York, pets are personal property like 368 00:23:16,600 --> 00:23:19,840 Speaker 4: you're furnishings. And that is the trend in most states 369 00:23:19,920 --> 00:23:22,760 Speaker 4: is seeing pets as a form of personal property. But 370 00:23:22,800 --> 00:23:26,760 Speaker 4: there's definitely aspects of law where that is changing. But 371 00:23:27,119 --> 00:23:30,400 Speaker 4: it's changing in different aspects of state law, as opposed 372 00:23:30,440 --> 00:23:33,960 Speaker 4: to a general change in the standing of pets in 373 00:23:34,000 --> 00:23:37,400 Speaker 4: every aspect of state law. It's coming in patchwork sections 374 00:23:37,400 --> 00:23:38,560 Speaker 4: of different states laws. 375 00:23:38,640 --> 00:23:42,399 Speaker 2: Susan tell Us about this landmark New York Supreme Court 376 00:23:42,480 --> 00:23:47,920 Speaker 2: case that established that pet owners can recover emotional damages 377 00:23:48,359 --> 00:23:50,800 Speaker 2: for the death of their pets as if they were 378 00:23:51,200 --> 00:23:55,040 Speaker 2: part of their human family, but in certain limited circumstances. 379 00:23:55,560 --> 00:23:58,400 Speaker 4: A woman and her son were walking the sun's dog 380 00:23:58,640 --> 00:24:01,639 Speaker 4: in a Neighbouringham, Brooklyn. They got to an intersection that 381 00:24:01,680 --> 00:24:05,480 Speaker 4: contained her crosswalk and a stop sign, and the mom 382 00:24:06,000 --> 00:24:08,959 Speaker 4: was actually holding the leash. So the mom is holding 383 00:24:09,000 --> 00:24:13,120 Speaker 4: the leash, steps into the crosswalk, looks both sides, doesn't 384 00:24:13,119 --> 00:24:16,960 Speaker 4: see anyone coming, steps into the crosswalk. Her adult son 385 00:24:17,040 --> 00:24:19,680 Speaker 4: is next to her, but she's holding the leash. They 386 00:24:19,720 --> 00:24:23,800 Speaker 4: get more than halfway through the crosswalk when a vehicle 387 00:24:24,560 --> 00:24:28,720 Speaker 4: crosses the stop sign without stopping, doesn't turn his turn 388 00:24:28,840 --> 00:24:33,560 Speaker 4: signal on and turns directly into them, and the mom 389 00:24:33,680 --> 00:24:36,399 Speaker 4: sees the car coming has enough time to at least 390 00:24:36,800 --> 00:24:39,520 Speaker 4: turn around and attempt to get back to the sidewalk, 391 00:24:39,840 --> 00:24:43,000 Speaker 4: but unfortunately, the dog is struck and killed by the 392 00:24:43,119 --> 00:24:46,919 Speaker 4: driver of the truck. So then a civil lawsuit, the 393 00:24:46,960 --> 00:24:50,760 Speaker 4: mother sued the driver of the truck for civil damages, 394 00:24:51,000 --> 00:24:54,639 Speaker 4: and her claims were for compensation because the dog was killed, 395 00:24:54,840 --> 00:24:58,600 Speaker 4: for the cost of the dog and for veterinary care. 396 00:24:58,920 --> 00:25:01,919 Speaker 4: But also the more interesting claim was she claimed the 397 00:25:01,960 --> 00:25:07,120 Speaker 4: mom claimed emotional damages for negcellent infliction of emotional distress 398 00:25:07,160 --> 00:25:11,360 Speaker 4: because she suffered having to watch her son's dog essentially 399 00:25:11,400 --> 00:25:14,360 Speaker 4: be negligently murdered in front of her. And the son 400 00:25:14,480 --> 00:25:17,560 Speaker 4: also sued for negilent infliction of emotional distress because even 401 00:25:17,560 --> 00:25:20,600 Speaker 4: though he wasn't holding the leash, he also had to 402 00:25:20,680 --> 00:25:25,000 Speaker 4: see his dog be killed. So there is so not 403 00:25:25,080 --> 00:25:28,399 Speaker 4: just for monetary damages for the dog's death builds, but 404 00:25:28,440 --> 00:25:31,880 Speaker 4: also for the emotional damages of having to bear witness 405 00:25:31,600 --> 00:25:32,960 Speaker 4: to the dog suffering. 406 00:25:33,880 --> 00:25:38,000 Speaker 2: So does that case where emotional damages for the pet 407 00:25:38,080 --> 00:25:42,280 Speaker 2: owner in certain circumstances are recognized, does that change anything 408 00:25:42,359 --> 00:25:46,960 Speaker 2: else or is it just as far as those particular circumstances. 409 00:25:47,200 --> 00:25:51,400 Speaker 4: Very limited holding and it only applies to torque cases 410 00:25:51,800 --> 00:25:55,639 Speaker 4: where there's a civil claim for emotional damages relating to 411 00:25:55,720 --> 00:25:57,960 Speaker 4: the death of a pet. And the holding of the 412 00:25:57,960 --> 00:26:01,680 Speaker 4: court was very aware that this was a significant holding 413 00:26:01,840 --> 00:26:04,719 Speaker 4: and that it would be cited by other states and 414 00:26:04,840 --> 00:26:07,600 Speaker 4: potentially used in New York for the purposes, so the 415 00:26:07,720 --> 00:26:12,960 Speaker 4: court made it only applicable and very very very limited circumstances. 416 00:26:13,400 --> 00:26:16,320 Speaker 4: I think that was a reflection of realizing that it 417 00:26:16,359 --> 00:26:19,000 Speaker 4: was changing past precedent and also not wanting to be 418 00:26:19,080 --> 00:26:22,280 Speaker 4: overturned on appeal. And also there was a lot, a 419 00:26:22,320 --> 00:26:26,080 Speaker 4: lot of briefs filed by different pet organizations, some for 420 00:26:26,160 --> 00:26:28,800 Speaker 4: the pet owner and some actually for the defendant, and 421 00:26:28,840 --> 00:26:31,439 Speaker 4: some organizations you wouldn't have expected to be filing and 422 00:26:31,560 --> 00:26:34,840 Speaker 4: for the defendant. So the judge in this case was 423 00:26:34,880 --> 00:26:38,360 Speaker 4: trying to weigh all these different concerns, including public policy concerns, 424 00:26:38,359 --> 00:26:40,760 Speaker 4: and that led to this very narrow holding. 425 00:26:41,280 --> 00:26:45,159 Speaker 2: Which organizations were against the pet owner recovering damages. 426 00:26:45,880 --> 00:26:49,080 Speaker 4: So the organizations against the pet owner recovering was actually 427 00:26:49,119 --> 00:26:53,000 Speaker 4: the American Chemical Club, the New York State Veterinary Medical Society, 428 00:26:53,480 --> 00:26:57,479 Speaker 4: the Animal Health Instituted, the American Veterinary Medical Association, the 429 00:26:57,520 --> 00:27:03,040 Speaker 4: American Animal Hospital Association, and the American Pet Pet Products Association, 430 00:27:03,560 --> 00:27:07,240 Speaker 4: and the Pet Industry Joint Advisory Council. Because the concern 431 00:27:07,359 --> 00:27:11,240 Speaker 4: expressed among those different organizations was that a holding in 432 00:27:11,280 --> 00:27:15,560 Speaker 4: favor of the pet owner would lead to increased costs 433 00:27:15,600 --> 00:27:19,800 Speaker 4: for that care or pet products, which would lead pen 434 00:27:19,880 --> 00:27:23,439 Speaker 4: owners not to get services for pets and lead to 435 00:27:23,520 --> 00:27:28,280 Speaker 4: increased that bills or pet insurance costs. So now that's 436 00:27:28,320 --> 00:27:31,840 Speaker 4: often been a concern even when pet trust were first 437 00:27:32,200 --> 00:27:35,160 Speaker 4: or first on the stage, and New York's pet trust 438 00:27:35,160 --> 00:27:37,240 Speaker 4: statue did not actually lead to any of those things. 439 00:27:37,320 --> 00:27:41,480 Speaker 2: So before we get to pet trusts, let's talk about 440 00:27:41,600 --> 00:27:45,760 Speaker 2: divorce because you often hear about couples fighting over who 441 00:27:45,760 --> 00:27:49,080 Speaker 2: gets the dog or the cat or the bird. So 442 00:27:49,160 --> 00:27:52,679 Speaker 2: what's the rule about who gets the pet in a 443 00:27:52,720 --> 00:27:53,920 Speaker 2: divorce in New York. 444 00:27:54,400 --> 00:27:56,080 Speaker 4: That's a great question because New York has a new 445 00:27:56,119 --> 00:27:58,560 Speaker 4: statue that was an acted in twenty twenty one that 446 00:27:58,640 --> 00:28:01,280 Speaker 4: says a judge in a warning costoy of the family 447 00:28:01,320 --> 00:28:04,119 Speaker 4: pet can actually take into account the best interests of 448 00:28:04,119 --> 00:28:07,320 Speaker 4: the pet, just like an awarding custody of a child, 449 00:28:07,400 --> 00:28:09,840 Speaker 4: the judge takes into account the best interests of the child. 450 00:28:10,000 --> 00:28:12,600 Speaker 4: And in the leading case in this area, the judge 451 00:28:12,640 --> 00:28:15,800 Speaker 4: actually said pets are just like children for this purpose, 452 00:28:16,200 --> 00:28:19,760 Speaker 4: and that's a significant statement, and the judge and the 453 00:28:19,840 --> 00:28:22,679 Speaker 4: Diblas holding actually leaned on that statement in coming to 454 00:28:22,720 --> 00:28:25,880 Speaker 4: this holding. So you see how the cases are evolving. 455 00:28:26,320 --> 00:28:29,520 Speaker 4: And the judge in Dublas actually said the law needs 456 00:28:29,520 --> 00:28:32,280 Speaker 4: to evolve with the treatment of pets, and the Dablas 457 00:28:32,359 --> 00:28:37,159 Speaker 4: judge cited statistics showing the growing importance of pets in 458 00:28:37,160 --> 00:28:39,880 Speaker 4: our life, like how many more households today own pets 459 00:28:39,920 --> 00:28:43,320 Speaker 4: compared to the past. But going back to divorce law, 460 00:28:43,720 --> 00:28:46,520 Speaker 4: so now in New York divorce cases, when there's a 461 00:28:46,520 --> 00:28:49,000 Speaker 4: pet involved in awarding coustody of the pet, you have 462 00:28:49,080 --> 00:28:51,760 Speaker 4: to consider the pets best interest just like you would 463 00:28:51,840 --> 00:28:54,600 Speaker 4: a child. And there's other states that have similar statutes, 464 00:28:54,840 --> 00:28:59,440 Speaker 4: like Alaska has a similar statute in custody cases. Actually, 465 00:29:00,120 --> 00:29:03,800 Speaker 4: from Law Commission is taking this up and it's taking 466 00:29:03,840 --> 00:29:09,160 Speaker 4: comments to decide whether to draft uniform legislation on awarding 467 00:29:09,440 --> 00:29:13,440 Speaker 4: possession and custody of pets and family disputes. So that's 468 00:29:13,440 --> 00:29:15,720 Speaker 4: how important a concern it is that even the Uniform 469 00:29:15,760 --> 00:29:17,960 Speaker 4: Law Commission is considering taking it up right now. 470 00:29:18,120 --> 00:29:23,440 Speaker 2: So if it's considered in divorces, is it considered in 471 00:29:23,520 --> 00:29:25,360 Speaker 2: a state after a person dies. 472 00:29:25,720 --> 00:29:27,720 Speaker 4: That's so interesting to me because I see so many 473 00:29:27,760 --> 00:29:30,000 Speaker 4: parallels as I've been practicing trust in states for over 474 00:29:30,080 --> 00:29:32,520 Speaker 4: twenty years now, and there's so many parallels between death 475 00:29:32,560 --> 00:29:36,880 Speaker 4: and divorce. I mean, there's significant life milestones. And even 476 00:29:36,920 --> 00:29:39,440 Speaker 4: though when I draft a will or a trust that 477 00:29:39,560 --> 00:29:44,160 Speaker 4: essentially serves as a will, I don't contemplate explicitly constantly divorced. 478 00:29:44,160 --> 00:29:46,680 Speaker 4: But when I'm representing someone who's been divorced, I often 479 00:29:46,760 --> 00:29:49,440 Speaker 4: have to tie into a prenuptial or post natural agreement 480 00:29:49,520 --> 00:29:52,520 Speaker 4: certain contractual obligations. But even when I do a trust, 481 00:29:52,880 --> 00:29:55,840 Speaker 4: I say, well, I'll leave this mentor's spouse if she's 482 00:29:55,840 --> 00:29:57,920 Speaker 4: still my spouse at my death, and if she's not, 483 00:29:58,080 --> 00:30:00,920 Speaker 4: then property goes a certain way. So the two events 484 00:30:01,480 --> 00:30:05,040 Speaker 4: definitely are related. And as I was reading the cases 485 00:30:05,480 --> 00:30:08,520 Speaker 4: about whether a pet is property and the Dubla's case 486 00:30:08,600 --> 00:30:11,400 Speaker 4: is citing back to the divorce cases, you see similar 487 00:30:11,440 --> 00:30:13,600 Speaker 4: concerns about do you consider the pet's best interests or 488 00:30:13,600 --> 00:30:15,680 Speaker 4: do you consider the pet owner's best interests? Do you 489 00:30:15,720 --> 00:30:18,280 Speaker 4: consider the child's best interests? Who might the miner might 490 00:30:18,280 --> 00:30:20,960 Speaker 4: be the main custodian of a sense of the pet? 491 00:30:21,400 --> 00:30:24,160 Speaker 4: Do you consider the family relationships? Is paramount all these 492 00:30:24,360 --> 00:30:26,520 Speaker 4: competing concerns, But those are the concerns when a pet 493 00:30:26,520 --> 00:30:28,000 Speaker 4: owner dies too. 494 00:30:28,160 --> 00:30:31,680 Speaker 2: So is the law as far as wills the same 495 00:30:31,760 --> 00:30:36,680 Speaker 2: as the law as far as divorce. Where pets are concerned. 496 00:30:36,720 --> 00:30:40,760 Speaker 4: It's very different. So a pet owner has very little 497 00:30:40,760 --> 00:30:43,200 Speaker 4: options in terms of providing for her pet or his 498 00:30:43,240 --> 00:30:46,040 Speaker 4: pet when he or she dies. The last piece of 499 00:30:46,120 --> 00:30:49,720 Speaker 4: legislation specifically addressing this was the pet trust. You recommended 500 00:30:49,880 --> 00:30:52,640 Speaker 4: the state's Powers and Trust law to provide for a 501 00:30:52,680 --> 00:30:56,200 Speaker 4: pet trust, where just like you can create a trust 502 00:30:56,280 --> 00:30:58,320 Speaker 4: for your child and say, I want to set aside 503 00:30:58,320 --> 00:31:01,560 Speaker 4: a certain pool of money that earmarked as just being 504 00:31:01,600 --> 00:31:04,360 Speaker 4: for my child after I die, and I appoint a 505 00:31:04,400 --> 00:31:08,280 Speaker 4: trustee to manage that pool of money and decide if 506 00:31:08,320 --> 00:31:12,200 Speaker 4: and when my child will receive distributions from that trust, 507 00:31:12,760 --> 00:31:15,600 Speaker 4: or the trust may pay expenses on behalf of my child. 508 00:31:16,200 --> 00:31:17,760 Speaker 4: Now you can do the same thing. You say, I'm 509 00:31:17,800 --> 00:31:20,240 Speaker 4: going to set aside one hundred thousand dollars or two 510 00:31:20,280 --> 00:31:23,400 Speaker 4: hundred thousand dollars in an account just for my pet, 511 00:31:23,840 --> 00:31:26,720 Speaker 4: and then I name a trustee who can make distributions 512 00:31:26,760 --> 00:31:29,800 Speaker 4: out of that pool of money just for my pet. 513 00:31:29,800 --> 00:31:30,360 Speaker 4: Pet trust. 514 00:31:30,640 --> 00:31:33,040 Speaker 2: So, in other words, if someone comes to you and 515 00:31:33,080 --> 00:31:35,480 Speaker 2: wants to draw up a will and wants to take 516 00:31:35,520 --> 00:31:38,680 Speaker 2: care of his or her pet, you say we have 517 00:31:38,720 --> 00:31:39,480 Speaker 2: to do a trust. 518 00:31:40,160 --> 00:31:42,360 Speaker 4: Is that that we don't often say it because to 519 00:31:42,360 --> 00:31:44,760 Speaker 4: do a pet trust, in my mind, to do any 520 00:31:44,840 --> 00:31:47,479 Speaker 4: kind of trust, you need a certain amount of money, 521 00:31:47,680 --> 00:31:49,800 Speaker 4: and in my mind the minimums do a trust is 522 00:31:49,840 --> 00:31:53,000 Speaker 4: around two hundred thousand dollars because I keep in mind 523 00:31:53,040 --> 00:31:55,080 Speaker 4: the trust for a pet or a child doesn't come 524 00:31:55,080 --> 00:31:57,600 Speaker 4: into being until after you, the person who wrote that 525 00:31:57,840 --> 00:32:01,160 Speaker 4: the will is deceased to die. That trust is a 526 00:32:01,200 --> 00:32:04,720 Speaker 4: separate income tax paying entity, so that means the trustee 527 00:32:04,720 --> 00:32:07,720 Speaker 4: has to found income tax returns every year. The trustee 528 00:32:07,760 --> 00:32:10,240 Speaker 4: has to hire a financial advisor to invest the money 529 00:32:10,240 --> 00:32:13,240 Speaker 4: for that trust to generate interests and dive an end income. 530 00:32:13,680 --> 00:32:15,680 Speaker 4: So there's a lot of compliance that goes along with 531 00:32:15,680 --> 00:32:18,720 Speaker 4: the formal trust arrangement, and there's people taking fees. The 532 00:32:18,960 --> 00:32:22,280 Speaker 4: accountant who prepares income tax return is charging annual fee, 533 00:32:22,400 --> 00:32:25,680 Speaker 4: the investment advisor who's investing it is charging annual fee. 534 00:32:26,000 --> 00:32:28,600 Speaker 4: The trustee usually takes a commission for this work that 535 00:32:28,680 --> 00:32:32,320 Speaker 4: he's doing. So to actually prepare a trust, you need 536 00:32:32,760 --> 00:32:35,680 Speaker 4: a decent amount of money to justify those annual fees, 537 00:32:36,080 --> 00:32:38,560 Speaker 4: which in my mind is a minimum two hundred thousand 538 00:32:38,600 --> 00:32:40,920 Speaker 4: to two hundred and fifty thousand, and a lot of 539 00:32:40,960 --> 00:32:45,640 Speaker 4: clients just don't have. They're envisioning leaving maybe ten twenty 540 00:32:45,720 --> 00:32:48,800 Speaker 4: fifty thousand dollars for their pets. They're not envisioning two 541 00:32:48,960 --> 00:32:52,680 Speaker 4: hundred thousand dollars or joining fifty thousand dollars. A yeah, yeah, 542 00:32:52,760 --> 00:32:55,400 Speaker 4: So a pet trust, in my mind, is for my 543 00:32:55,480 --> 00:33:00,760 Speaker 4: high net worth clients. It's not for your average upper 544 00:33:00,760 --> 00:33:02,960 Speaker 4: middle class families who are just seeking to make sure 545 00:33:03,000 --> 00:33:05,280 Speaker 4: that a pet is provided for and that the level 546 00:33:05,320 --> 00:33:08,240 Speaker 4: of care they provided will be provided for when they die. 547 00:33:08,520 --> 00:33:09,480 Speaker 4: Sale trust is not that. 548 00:33:09,960 --> 00:33:12,360 Speaker 2: So what do you do for your clients or what 549 00:33:12,440 --> 00:33:15,600 Speaker 2: can you do for your clients that don't have that 550 00:33:15,840 --> 00:33:17,680 Speaker 2: money to make a pet trust? 551 00:33:18,040 --> 00:33:19,480 Speaker 4: So the alternative that I do for a lot of 552 00:33:19,480 --> 00:33:21,480 Speaker 4: my clients is honestly, it's very rare that I draft 553 00:33:21,520 --> 00:33:23,000 Speaker 4: a pet trust, but I represent a lot of behind 554 00:33:23,040 --> 00:33:24,040 Speaker 4: networth individuals. 555 00:33:24,360 --> 00:33:25,080 Speaker 1: Is just a. 556 00:33:25,080 --> 00:33:28,520 Speaker 4: Simple naming of a pet caretaker, which is not a 557 00:33:28,560 --> 00:33:31,479 Speaker 4: fiduciary role. I mean, the trustee of a pet trust 558 00:33:31,640 --> 00:33:34,400 Speaker 4: is a fiduciary. That's the benefit of having a pet 559 00:33:34,440 --> 00:33:37,240 Speaker 4: trust statute. If the trustee of the pet trust of 560 00:33:37,400 --> 00:33:40,880 Speaker 4: sconds with the money or takes a distribution out and 561 00:33:40,920 --> 00:33:43,680 Speaker 4: buys him or herself a new car. He or she 562 00:33:43,880 --> 00:33:46,880 Speaker 4: can be held up in court and asked to put 563 00:33:46,880 --> 00:33:49,760 Speaker 4: that money back into the trust can be personally surcharged. 564 00:33:50,200 --> 00:33:53,719 Speaker 4: That's the benefit of a trustee. It's a fiduciary obligation 565 00:33:53,840 --> 00:33:56,080 Speaker 4: that carries legal risk and legal obligation. 566 00:33:56,640 --> 00:33:57,120 Speaker 1: What I do. 567 00:33:57,160 --> 00:34:00,000 Speaker 4: Instead is I name an informal caretaker for the pets 568 00:34:00,400 --> 00:34:03,320 Speaker 4: that doesn't carry any of that enforcement that comes along 569 00:34:03,320 --> 00:34:06,000 Speaker 4: with the true fiduciary. I have a dog, Norris, and 570 00:34:06,040 --> 00:34:07,760 Speaker 4: I say, okay, I'm going to give I have two dogs, 571 00:34:07,800 --> 00:34:10,000 Speaker 4: one of them is Norris. I'm going to give Norris 572 00:34:10,239 --> 00:34:12,920 Speaker 4: to my friend Michael. He's going to be the caretaker, 573 00:34:13,000 --> 00:34:15,799 Speaker 4: Norris's caretaker, and I'm going to say that as long 574 00:34:15,840 --> 00:34:18,239 Speaker 4: as Michael agrees take custy of Norris after my death, 575 00:34:18,280 --> 00:34:21,239 Speaker 4: I'll give Michael twenty thousand dollars that I wish for 576 00:34:21,360 --> 00:34:24,440 Speaker 4: him to use towards Norris's care. But that's a wish 577 00:34:24,760 --> 00:34:27,520 Speaker 4: right If I die and Michael takes Norris and then 578 00:34:28,080 --> 00:34:31,280 Speaker 4: instead of using the ten thousand dollars to maintain Norris's 579 00:34:31,320 --> 00:34:34,439 Speaker 4: Farmer's Dog subscription and the organic treats that I buy 580 00:34:34,520 --> 00:34:36,920 Speaker 4: him and the private vet, they take him to that 581 00:34:37,360 --> 00:34:40,120 Speaker 4: the dog insurance I maintained only covers half of the bills. 582 00:34:40,600 --> 00:34:43,759 Speaker 4: Michael might take Norris and buy some cheap food and 583 00:34:44,120 --> 00:34:46,840 Speaker 4: use a free clinic and not maintain anywhere near the 584 00:34:46,920 --> 00:34:49,200 Speaker 4: level of care. That was the purpose of that twenty 585 00:34:49,280 --> 00:34:51,719 Speaker 4: thousand dollars, and there's no way of stopping that. 586 00:34:52,160 --> 00:34:55,560 Speaker 2: What would be a solution to this disparate treatment of 587 00:34:56,320 --> 00:34:58,760 Speaker 2: pets for one reason and not for another? 588 00:34:59,320 --> 00:35:02,839 Speaker 4: Of course, there could a global standard of treating pets's 589 00:35:03,239 --> 00:35:06,799 Speaker 4: humans and then saying every law has been interpret in 590 00:35:07,080 --> 00:35:08,960 Speaker 4: under that lens. But I don't see that. So I 591 00:35:09,000 --> 00:35:12,640 Speaker 4: see a continuation of piecemeal legislation. And for the trust 592 00:35:12,719 --> 00:35:16,879 Speaker 4: and State's purpose, I see an amendment to New York's law, 593 00:35:16,960 --> 00:35:19,520 Speaker 4: much like we have the Uniform Transferred to Miners Act. 594 00:35:20,200 --> 00:35:23,320 Speaker 4: I see an amendment like that, some type of transfer 595 00:35:23,440 --> 00:35:26,879 Speaker 4: to Pets Act, so that for individuals who don't have 596 00:35:27,000 --> 00:35:29,000 Speaker 4: two hundred, two hundred and fifty thousand dollars to put 597 00:35:29,000 --> 00:35:31,000 Speaker 4: in a pet trust, they can put in a pet 598 00:35:31,040 --> 00:35:36,080 Speaker 4: custodial account. Because custodians, when you put say fifty thousand dollars, 599 00:35:36,120 --> 00:35:38,120 Speaker 4: you go to city Bank, you say, I want to 600 00:35:38,160 --> 00:35:40,560 Speaker 4: put fifty thousand dollars in a custodial account for my 601 00:35:40,640 --> 00:35:42,920 Speaker 4: minor child when they're fourteen, and it stays in that 602 00:35:42,960 --> 00:35:46,000 Speaker 4: coustoleic account until they're twenty one. You similarly don't have 603 00:35:46,040 --> 00:35:48,080 Speaker 4: two hundred and fifty thousand to put a trust for 604 00:35:48,120 --> 00:35:50,960 Speaker 4: your child. This is a less expensive alternative that banks 605 00:35:51,000 --> 00:35:53,759 Speaker 4: offer to trust for your children. I would like to 606 00:35:53,800 --> 00:35:55,960 Speaker 4: see the same thing for a pet, for a dog 607 00:35:56,120 --> 00:35:58,640 Speaker 4: or a cat, and that way you can name a 608 00:35:58,680 --> 00:36:03,440 Speaker 4: custodian and the custodian is bound to the same fiduciary 609 00:36:03,560 --> 00:36:06,080 Speaker 4: role that a trustee is. So I'd like to see 610 00:36:06,120 --> 00:36:09,160 Speaker 4: legislation that creates a custodial account for pets where the 611 00:36:09,200 --> 00:36:13,080 Speaker 4: custodian can be taken to court and bound to return 612 00:36:13,200 --> 00:36:15,840 Speaker 4: any money that is not actually used for the pets 613 00:36:15,880 --> 00:36:19,920 Speaker 4: care and support in the same manner that you expressed 614 00:36:19,960 --> 00:36:22,000 Speaker 4: in your letter of intent you wanted the pets to 615 00:36:22,040 --> 00:36:26,880 Speaker 4: be cared for. I see the arguments coming that legislation 616 00:36:26,960 --> 00:36:30,319 Speaker 4: like this can end up increase in liability. I see 617 00:36:30,360 --> 00:36:33,319 Speaker 4: the same organizations that I mentioned objecting saying this can 618 00:36:33,400 --> 00:36:38,839 Speaker 4: cause increases and services, and but that argument never bears out. 619 00:36:39,080 --> 00:36:41,200 Speaker 4: We've seen it agose under which the custodian can be 620 00:36:41,239 --> 00:36:46,480 Speaker 4: held legally accountable. We've never seen those increases in pet costs. 621 00:36:46,719 --> 00:36:50,200 Speaker 2: Thanks so much, Suzanne. That's trust in a state's attorney, 622 00:36:50,320 --> 00:36:52,800 Speaker 2: Susanne Thaw. And that's it for this edition of The 623 00:36:52,800 --> 00:36:55,760 Speaker 2: Bloomberg Law Show. Remember you can always get the latest 624 00:36:55,800 --> 00:36:58,919 Speaker 2: legal news on our Bloomberg Law Podcast. You can find 625 00:36:58,960 --> 00:37:03,520 Speaker 2: them on Apple podcast, Spotify, and at www dot bloomberg 626 00:37:03,600 --> 00:37:07,359 Speaker 2: dot com, slash podcast, slash Law, and remember to tune 627 00:37:07,400 --> 00:37:10,600 Speaker 2: into The Bloomberg Law Show every weeknight at ten pm 628 00:37:10,680 --> 00:37:14,239 Speaker 2: Wall Street Time. I'm June Grosso and you're listening to 629 00:37:14,280 --> 00:37:14,840 Speaker 2: Bloomberg