WEBVTT - Sentencing Backlash & Pets Are Still Property 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grosse from Bloomberg Radio. 0:00:08.680 --> 0:00:13.440 The pushback was swift after marilynd Federal Judge Deborah Boardman 0:00:13.960 --> 0:00:18.800 sentence Sophie Roski, charged as Nicholas John Rosky, to just 0:00:18.960 --> 0:00:23.360 over eight years in prison. Attorney General Pam Bondi promised 0:00:23.400 --> 0:00:27.080 the Justice Department would appeal what she called a woefully 0:00:27.320 --> 0:00:31.600 insufficient sentence, which was well below the minimum thirty years 0:00:31.640 --> 0:00:35.159 the government had asked for. Other conservative critics of the 0:00:35.240 --> 0:00:39.280 light punishment doesn't send a strong enough message. Amid the 0:00:39.400 --> 0:00:43.680 rise in threats to federal judges, and Senator Ted Cruz, 0:00:44.080 --> 0:00:49.600 while decrying the violence against judges quote particularly fueled by 0:00:49.760 --> 0:00:54.760 rhetoric by irresponsible politicians, criticized the judge and called for 0:00:54.800 --> 0:00:55.600 her impeachment. 0:00:56.520 --> 0:01:02.960 A left wing Biden appointed judge sentence this attempted murderer, 0:01:03.000 --> 0:01:05.920 this attempted assassin to just eight years. The Department of 0:01:06.080 --> 0:01:10.720 Justice asked for thirty years, and that Judge Downward departed 0:01:10.760 --> 0:01:16.800 by twenty two years. Why because this left wing judge 0:01:17.080 --> 0:01:20.120 said that the attempted murderer was transgender. 0:01:20.640 --> 0:01:24.440 In fact, during the day long sentencing hearing, Judge Boardman 0:01:24.520 --> 0:01:28.840 spent two hours explaining all the factors that led her 0:01:28.920 --> 0:01:32.640 to the eight year sentence, primarily the fact that Rosky 0:01:32.880 --> 0:01:37.000 phoned authorities from the scene, reported the incident, and turned 0:01:37.000 --> 0:01:41.800 herself in. My guest is former Marilyn Federal Judge Paul Grimm, 0:01:41.959 --> 0:01:45.160 director of the Baltch Judicial Institute at Duke Law School. 0:01:45.440 --> 0:01:50.240 Did it seem like Judge Boardman anticipated that there would 0:01:50.280 --> 0:01:55.160 be reaction to her sentencing and an appeal, considering that 0:01:55.240 --> 0:01:59.760 she spent two hours explaining the factors that went into it. 0:02:00.880 --> 0:02:04.440 I will say this, Judge Portman is very diligent and 0:02:04.640 --> 0:02:10.240 enormously experienced judge. She also spent a considerable amount of 0:02:10.240 --> 0:02:14.119 time as a federal public defender in the District of Maryland, 0:02:14.560 --> 0:02:19.720 and so she has done hundreds of sentencings, both as 0:02:19.760 --> 0:02:23.760 a lawyer and as a judge. So she really knows 0:02:23.880 --> 0:02:29.160 what goes into what's required under the sentencing guidelines and 0:02:29.320 --> 0:02:33.400 the Statute eighteen US Code three five five three. So 0:02:34.000 --> 0:02:38.040 she knew in advance, of course, because the government filed 0:02:38.040 --> 0:02:42.760 a sentencing memorandum and the defense filed a sentencing memorandum 0:02:43.320 --> 0:02:46.440 that the sentencing guidelines. Because of the way in which 0:02:46.480 --> 0:02:51.720 the case was charged with a terrorism connection enhancement, that 0:02:51.880 --> 0:02:55.960 the guidelines were thirty years to life, and she issued 0:02:56.040 --> 0:02:59.200 a sentence of eight years, perhaps a little bit more 0:02:59.240 --> 0:03:03.000 than eight years, So she knew that that was either 0:03:03.040 --> 0:03:07.560 a significant departure or a variance below what the guideline 0:03:07.800 --> 0:03:13.360 recommendation was. And knowing how careful and thorough Judge Boardman is, 0:03:14.000 --> 0:03:17.200 I'm sure she expected that if the government thought the 0:03:17.240 --> 0:03:21.280 sentence was too lenient, that there might be an appeal. 0:03:21.600 --> 0:03:24.919 And I'm sure that she wanted to make sure that 0:03:24.960 --> 0:03:27.720 she had dotted all of her eyes and crossed all 0:03:27.720 --> 0:03:32.280 of her teas in explaining and complying with both the 0:03:32.320 --> 0:03:37.360 procedural requirements of the statute, which means that you calculated 0:03:37.360 --> 0:03:40.120 the guidelines correctly. There was a challenge if there was 0:03:40.120 --> 0:03:43.760 an objection to the calculation of the guidelines. And part 0:03:43.800 --> 0:03:48.000 of the procedural requirement for a judge to sentence is 0:03:48.040 --> 0:03:51.680 that the judge goes through the pre sentence report acknowledges 0:03:51.720 --> 0:03:55.760 what the parties submitted. If there are any challenges by 0:03:55.800 --> 0:03:58.680 one side or the other, the rules on those gives 0:03:58.720 --> 0:04:01.720 the rationale for that. You know, Judge Boardman is an 0:04:01.760 --> 0:04:06.040 active judge. So during the presentation by the government and 0:04:06.080 --> 0:04:10.320 the presentation by the defense. She likely asked questions. So 0:04:10.560 --> 0:04:12.480 Judge Bourbman is the kind of judge who's going to 0:04:12.560 --> 0:04:15.600 let everyone who wants to be heard be heard fully. 0:04:16.240 --> 0:04:21.520 She'll listen respectfully and carefully. She'll ask questions, She'll make 0:04:21.560 --> 0:04:24.479 sure she understands what the arguments are, and then she 0:04:24.600 --> 0:04:28.640 will calculate the guidelines. She would then do what the 0:04:28.680 --> 0:04:33.640 guidelines require is to analyze the sentencing factors that are 0:04:33.720 --> 0:04:37.200 set forth for a judge to consider under eighteen US 0:04:37.240 --> 0:04:39.080 Code three five five three. 0:04:39.279 --> 0:04:42.320 Tell us about some of those sentencing factors. 0:04:42.640 --> 0:04:44.880 There are many of them. So you have to talk 0:04:44.920 --> 0:04:48.880 about the nature and circumstances of the offense, and she did, 0:04:48.960 --> 0:04:52.200 and she acknowledged it was a very serious offense. You 0:04:52.360 --> 0:04:54.640 have to look at what kind of a sentence would 0:04:55.080 --> 0:04:57.960 be respected by the public as being a sufficient sentence 0:04:58.160 --> 0:05:01.520 for the nature of the circums stances. Given the personal 0:05:01.600 --> 0:05:05.400 characteristics of the defendant. You have to consider what kind 0:05:05.400 --> 0:05:08.480 of a sentence would deter this particular defendant from committing 0:05:08.520 --> 0:05:12.000 future crimes. And that's called specific deterrence. You have to 0:05:12.040 --> 0:05:15.840 consider general deterrence. What would deter members of the community 0:05:15.839 --> 0:05:19.680 from doing that given the number of threats against US 0:05:19.760 --> 0:05:22.760 judges that have been occurring for over well over a decade, 0:05:22.800 --> 0:05:25.479 but particularly in the last ten months, you know what 0:05:25.560 --> 0:05:27.760 kind of a sentence would be necessary to deter people 0:05:27.760 --> 0:05:31.120 from making threats against judges serious offense. You have to 0:05:31.160 --> 0:05:35.680 talk about the history and characteristics of this particular defendant, 0:05:35.800 --> 0:05:39.320 whether they have any prior convictions, what kind of convictions 0:05:39.320 --> 0:05:42.880 those were, what type of offenses they were, And you know, 0:05:43.160 --> 0:05:45.760 at that point you have to consider certain factors that 0:05:45.920 --> 0:05:49.680 might be specific to the issues, such as mental health 0:05:49.680 --> 0:05:53.240 issues or physical health issues of a particular defendant. You 0:05:53.320 --> 0:05:57.320 have to consider whether or not a sentence should include 0:05:57.920 --> 0:06:02.400 certain aspects that will assist the rehabilitation of a defendant, 0:06:02.480 --> 0:06:06.760 such as drug treatment, anger management, or and then when 0:06:06.800 --> 0:06:11.200 you've gone through all of those, you explain how you 0:06:11.400 --> 0:06:14.520 ranked and evaluated each factor. This is, of course, comes 0:06:14.560 --> 0:06:17.200 after you've calculated the guidelines and made a ruling on 0:06:17.240 --> 0:06:19.880 the guidelines, and you've heard from everybody, and then the 0:06:19.880 --> 0:06:22.719 statute says that you are to issue a sentence which 0:06:22.760 --> 0:06:27.520 is sufficient, but not greater than necessary to accomplish the 0:06:27.560 --> 0:06:30.600 sentencing goals of eighteen US Code Section three five to 0:06:30.680 --> 0:06:34.279 five to three. So that's the procedural part. I'd be 0:06:34.400 --> 0:06:38.880 shocked if procedurally, Judge Boardman did not do all of 0:06:38.920 --> 0:06:43.799 those steps with great detail. The substantive part is whether 0:06:43.960 --> 0:06:48.600 or not the judge, in announcing the sentence either overvalued 0:06:48.680 --> 0:06:51.920 or undervalued one particular factor over another. 0:06:52.680 --> 0:06:55.040 That does seem to be where the appeal will likely 0:06:55.080 --> 0:06:59.159 be focused on, So tell us what that might look like. 0:07:00.160 --> 0:07:03.160 So if a judge didn't say too much about deterrence 0:07:03.680 --> 0:07:06.720 but talked a lot about rehabilitation, then an appellate court 0:07:06.800 --> 0:07:09.680 might say, well, now, wait a minute, you gave too 0:07:09.760 --> 0:07:13.600 much emphasis to rehabilitation, not enough emphasis to deterrent or 0:07:13.760 --> 0:07:17.840 seriousness of the offense or the nature of punishment that 0:07:17.960 --> 0:07:22.200 would command respect within the public, and the appellate court 0:07:22.280 --> 0:07:26.840 will look at the sentence for both procedural and substantive correctness. 0:07:27.080 --> 0:07:30.520 There is a deferential review standard, and only if there's 0:07:30.560 --> 0:07:35.080 been an abusive discretion will the appellate court overrule. So 0:07:35.560 --> 0:07:38.920 there's just a lot of moving pieces to a sentencing 0:07:39.400 --> 0:07:42.000 in any case in federal court, but particularly for something 0:07:42.080 --> 0:07:45.400 like this, there was a significant disagreement between what the 0:07:45.440 --> 0:07:48.480 defense said was an appropriate sentence and what the government 0:07:48.520 --> 0:07:51.760 was asking for the fact that she took the time 0:07:51.800 --> 0:07:54.840 that she did. Suggest to me that she did each 0:07:54.960 --> 0:07:57.160 in every one of the things that she was required 0:07:57.240 --> 0:08:00.200 to do, and by that what I mean she she 0:08:00.320 --> 0:08:03.320 calculated the guidelines, she discussed what the party said, she 0:08:03.440 --> 0:08:07.240 resolved any disagreements. She analyzed each of the factors under 0:08:07.520 --> 0:08:10.480 eighteen US Code Section three five five to three. She 0:08:10.600 --> 0:08:13.360 explained the weight she was giving to each one. I 0:08:13.400 --> 0:08:16.400 would be surprised if there was a procedural deficiency in 0:08:16.480 --> 0:08:21.560 what she said. If there is any significant issue on appeal, 0:08:22.240 --> 0:08:24.640 it might be more on the substantive one whether or 0:08:24.680 --> 0:08:27.520 not some of the factors that she gave weight to 0:08:27.720 --> 0:08:31.520 and discussed she gave excessive weight to those factors as 0:08:31.600 --> 0:08:36.000 opposed to other aspects of the sentencing statute. So that's 0:08:36.360 --> 0:08:38.600 likely to be an area that will be explored on appeal. 0:08:38.800 --> 0:08:42.280 As far as appellet arguments, one would be, as you mentioned, 0:08:42.320 --> 0:08:46.480 abused her discretion by not properly balancing the sentencing factors. 0:08:46.520 --> 0:08:50.440 And one thing that stood out was that she gave 0:08:51.320 --> 0:08:56.080 credit to Roskie for having called the police after deciding 0:08:56.080 --> 0:08:58.559 not to carry out the crime. She told the nine 0:08:58.559 --> 0:09:02.360 to eleven operators she needed psychiatric help. The judge said, 0:09:02.440 --> 0:09:05.520 in my seventeen years of experience in federal criminal law 0:09:05.520 --> 0:09:08.360 in the District of Maryland, as a public defender and 0:09:08.400 --> 0:09:10.680 as a judge, I have never heard of another criminal 0:09:10.720 --> 0:09:15.200 defendant doing that. Is that something that kind of determination 0:09:15.559 --> 0:09:18.800 that the prosecution might use on appeal? 0:09:19.840 --> 0:09:24.640 Well, one of the things that you have to look 0:09:24.679 --> 0:09:29.320 at in terms of a proper sentencing under the sentencing 0:09:29.360 --> 0:09:34.199 regime is was there acceptance of responsibility? And clearly there 0:09:34.280 --> 0:09:37.320 was acceptance of responsibility. If a person, I mean, if 0:09:37.400 --> 0:09:41.200 you go to law enforcement and say, hey, I did this, 0:09:41.720 --> 0:09:44.439 I have mental health problems, I need help. I did this, 0:09:45.040 --> 0:09:49.360 I'm acknowledging it, and then pled guilty, those are important factors. 0:09:49.840 --> 0:09:53.400 Oftentimes the defendants don't plead guilty. They make the government 0:09:53.440 --> 0:09:56.319 go to trial and prove the case. So acceptance of 0:09:56.360 --> 0:10:01.439 responsibility is clearly an important factor. The fact that Judge 0:10:01.480 --> 0:10:04.240 Boardman said that in her seventeen years in criminal law 0:10:04.280 --> 0:10:08.200 in federal court that she had never seen another defendant 0:10:08.320 --> 0:10:12.240 do that was essentially tantamount to saying that in her 0:10:12.600 --> 0:10:17.200 seventeen years of experience, which is profound, that this was 0:10:17.800 --> 0:10:21.680 not just simply acceptance of responsibility and acknowledgment of guilt, 0:10:21.760 --> 0:10:26.720 but to a fairly extraordinary extent, And that might explain 0:10:26.800 --> 0:10:30.600 why it was if that factor weighed heavily on the 0:10:30.640 --> 0:10:34.200 sentence that she gave, why she valued it and waited 0:10:34.240 --> 0:10:38.280 it so much. If the kind of acceptance of responsibility 0:10:38.360 --> 0:10:41.160 is hew half hearted. You know, if somebody says, well, 0:10:41.200 --> 0:10:42.840 I'm sorry that you didn't like the fact that this 0:10:42.920 --> 0:10:46.559 clim was committed, that's not a sincere apology. If somebody 0:10:47.040 --> 0:10:50.800 doesn't plead guilty until after the government has had to 0:10:51.480 --> 0:10:56.160 respond to motions to dismiss, and after they filed emotion 0:10:56.280 --> 0:10:59.120 to suppress and it's been a hearing, and this hearing 0:10:59.200 --> 0:11:04.560 has been overruled, then the defend and that circumstances waited 0:11:04.640 --> 0:11:07.880 until every effort they could to try to knock out 0:11:07.920 --> 0:11:12.040 the crime was unsuccessful, and then and only then pled guilty. 0:11:12.240 --> 0:11:16.280 You might characterize that as begrudgingly pleading guilty. And if 0:11:16.320 --> 0:11:20.839 she believed that this person was one of the most 0:11:20.960 --> 0:11:25.120 sincere in their acceptance of responsibility and did the most 0:11:25.200 --> 0:11:28.480 to not put the government to a lengthy investigation and 0:11:29.200 --> 0:11:34.120 prosecution and motions practice and all of that, then that 0:11:34.240 --> 0:11:37.120 might be something that she would comment on in order 0:11:37.200 --> 0:11:41.079 to explain why she gave that factor the weight that 0:11:41.200 --> 0:11:44.240 she did in deciding her sentence. 0:11:44.520 --> 0:11:48.120 Coming up next, I'll continue this conversation with Judge Paul Grimm. 0:11:48.679 --> 0:11:52.520 We'll discuss the rise in threats to federal judges and 0:11:52.559 --> 0:11:58.559 the deterrent effect of sentences. You're listening to Bloomberg Marilyn. 0:11:58.679 --> 0:12:02.960 Federal judge Deborah Boardman sentenced the would be assassin of 0:12:03.040 --> 0:12:07.640 Supreme Court Justice Brett Kavanaugh to just over eight years 0:12:07.640 --> 0:12:12.800 in prison. Sophie Roski, charged as Nicholas John Roski, was 0:12:12.920 --> 0:12:17.199 arrested near Cavanaugh's Maryland home in twenty twenty two after 0:12:17.240 --> 0:12:19.920 the leak of a draft opinion of the Supreme Court's 0:12:19.920 --> 0:12:25.280 opinion overturning the constitutional right to abortion. During sentencing, Boardman 0:12:25.400 --> 0:12:29.440 gave Roski credit for having called police after deciding not 0:12:29.600 --> 0:12:33.559 to carry out the crime, saying that otherwise authorities may 0:12:33.559 --> 0:12:37.880 have never known about the plot. Conservatives have seized on 0:12:38.080 --> 0:12:41.959 questions that the judge asked about treatment options for Roski 0:12:42.120 --> 0:12:46.120 in a male federal penitentiary as she's a transgender woman. 0:12:46.480 --> 0:12:49.800 I've been talking to former Maryland judge Paul Grimm, a 0:12:49.840 --> 0:12:54.760 professor at Duke Law School. Threats against federal judges, as 0:12:54.760 --> 0:12:58.680 you mentioned, have risen dramatically, with this year on track 0:12:58.800 --> 0:13:02.640 to become a record uar for such threats, and the 0:13:02.679 --> 0:13:06.840 government here argued that a harsh sentence was necessary to 0:13:06.920 --> 0:13:11.920 deter further threats or attacks against judges or other public officials. 0:13:12.400 --> 0:13:16.400 What role does the impact of a sentence beyond the 0:13:16.440 --> 0:13:18.800 defendant have in a sentencing. 0:13:19.280 --> 0:13:22.439 That's a great question. You know, the people who study 0:13:22.520 --> 0:13:26.679 criminal law, there's enough writing that if you stack them 0:13:26.679 --> 0:13:30.560 all the articles and the books one on top of another, 0:13:30.679 --> 0:13:35.080 would probably equal a pretty good sized skyscraper. You know. 0:13:35.200 --> 0:13:40.400 The theory of criminal sentencing that goes back decades and 0:13:40.440 --> 0:13:43.840 decades and decades is that what do you give a 0:13:43.880 --> 0:13:47.080 criminal sentence to do? And there are multiple theories. One 0:13:47.160 --> 0:13:50.480 is you could give a sentence that will deter that 0:13:50.559 --> 0:13:56.440 particular defendant and other similar defendants from committing crimes of 0:13:56.480 --> 0:13:59.959 that nature in the future. One of it is to rebuild. 0:14:00.200 --> 0:14:03.760 Take the defendant, you sentenced them so that they have 0:14:03.840 --> 0:14:06.240 a period of imprisonment, and then you put things in 0:14:06.280 --> 0:14:08.680 place to make sure that when they finished that that 0:14:08.760 --> 0:14:12.720 they have the skills and the likely avenue to succeed 0:14:12.920 --> 0:14:15.280 and be law abiding. That's certainly in the public interest. 0:14:15.440 --> 0:14:17.280 And then another one is is that you're just doing 0:14:17.280 --> 0:14:22.200 it to punish for retribution. So they are competing theories. 0:14:22.400 --> 0:14:24.560 Some people say, well, no, it shouldn't be this theory, 0:14:24.600 --> 0:14:27.040 it should be that theory. But there's a lot of 0:14:27.120 --> 0:14:31.880 debate about whether or not specific deterrence and general deterrence 0:14:32.280 --> 0:14:35.680 actually are effective in doing that. So let me give 0:14:35.680 --> 0:14:38.840 you an example. If you have a crime that was 0:14:38.880 --> 0:14:43.040 committed in the heat of passion and this person's anger 0:14:43.360 --> 0:14:48.040 or hatred was inflamed and then they did it, there's 0:14:48.080 --> 0:14:52.840 a lot of research that suggests that the deterrence is 0:14:52.840 --> 0:14:55.760 not that great because if you're you know, if you're reasoning, 0:14:55.880 --> 0:14:57.680 you know the idea of that, well, you know, if 0:14:58.000 --> 0:15:01.080 I send this email threatening this judge, judge, maybe I'm 0:15:01.080 --> 0:15:02.800 going to get a thirty year sentence, so I won't 0:15:02.800 --> 0:15:06.120 do it. That's the theory. But why do people send 0:15:06.120 --> 0:15:09.280 those emails? And one of the reasons why there's so 0:15:09.400 --> 0:15:12.840 many threats against judges is that for the last ten 0:15:12.920 --> 0:15:17.240 years at least, and specifically in the last ten months, 0:15:17.920 --> 0:15:24.320 there have been unprecedented amounts of threats against judges and 0:15:24.440 --> 0:15:26.800 the Martial Service. I think the last data that I 0:15:26.840 --> 0:15:29.480 saw was that as of September, there were over five 0:15:29.600 --> 0:15:33.600 hundred credible threats that the Marshall Service found against federal judges, 0:15:34.080 --> 0:15:37.760 and that somehow more than three hundred judges federal judges 0:15:37.800 --> 0:15:41.080 have been threatened. You know, they're only about seven hundred 0:15:41.120 --> 0:15:44.480 federal judges in the entire judiciary, so three hundred have 0:15:44.600 --> 0:15:47.720 been threatened. Then that's almost half of the sitting judges 0:15:47.760 --> 0:15:50.120 have been threatened. Then you go back and say, well, 0:15:50.160 --> 0:15:53.120 who's doing the threats? And when you see the kind 0:15:53.160 --> 0:15:57.640 of language that political figures and commentators have been using, 0:15:58.120 --> 0:16:01.240 the kind of language that they are accusing judges who 0:16:01.280 --> 0:16:04.480 are just simply trying to do their job of being 0:16:04.560 --> 0:16:12.080 traders or radical or extreme or unpatriotic or treason This 0:16:12.720 --> 0:16:15.840 if you look at footnote two of the opinion issued 0:16:15.880 --> 0:16:19.640 by the US district judge who dismissed the government's lawsuit 0:16:19.720 --> 0:16:21.920 against all the judges of the U S District Court 0:16:21.960 --> 0:16:26.200 for the District of Maryland. In that the judge said, 0:16:26.360 --> 0:16:29.560 you know, in the last few months, since the beginning 0:16:29.600 --> 0:16:33.640 of the year, either public officials or representatives of public 0:16:33.680 --> 0:16:37.520 officials have accused federal judges of the following and listed 0:16:37.960 --> 0:16:41.680 about seven or eight of very extreme language used to 0:16:41.680 --> 0:16:46.960 describe federal judges and in very extreme ways, and found 0:16:47.040 --> 0:16:49.520 that it was essentially a concerted effort on the part 0:16:49.520 --> 0:16:51.880 of the administration to do that. That's a finding of 0:16:51.880 --> 0:16:55.120 a federal judge in an actual case, and that was 0:16:55.160 --> 0:16:59.680 a judge appointed by a Republican president. So what I'm 0:16:59.720 --> 0:17:03.800 saying is is that if the government as an entity 0:17:04.000 --> 0:17:08.120 is concerned about preventing threats against judges, and you're trying 0:17:08.119 --> 0:17:11.280 to find the most effective way of doing that, then 0:17:11.600 --> 0:17:15.560 you know, reasonable minds can disagree about whether having one 0:17:15.680 --> 0:17:19.000 thirty year sentence for a person with mental health who 0:17:19.520 --> 0:17:24.400 has no significant prior record of criminal activity is certainly 0:17:24.480 --> 0:17:27.919 violent activity with mental health issues, whether that's going to 0:17:27.960 --> 0:17:32.119 deter or whether perhaps the administration is should stop making 0:17:32.160 --> 0:17:38.680 these personal, extraordinarily emotional attacks against judges if they disagree 0:17:38.720 --> 0:17:40.760 with the judges' rulings, which is going to be more 0:17:40.800 --> 0:17:44.040 effective in the long run. Well, you know, some people 0:17:44.040 --> 0:17:46.280 would say you need a belt and suspenders, do them both. 0:17:46.440 --> 0:17:50.479 But the Department of Justice was serious about deterring threats 0:17:50.560 --> 0:17:55.600 against federal judges, then they would encourage the spokespeople within 0:17:55.920 --> 0:17:59.120 the Department of Justice, as well as others within the government, 0:17:59.600 --> 0:18:03.359 to stop using the kind of intemperate, incendiary language that 0:18:03.440 --> 0:18:08.080 has been used repeatedly in the last ten months to 0:18:08.240 --> 0:18:10.640 vilify and intimidate federal judges. 0:18:11.160 --> 0:18:15.119 Judges have a lot of discretion in sentencing. So what 0:18:15.240 --> 0:18:19.000 does it take for a federal appellate court to reverse 0:18:19.160 --> 0:18:23.240 a judge's sentencing decision. I know, the Fourth Circuit did 0:18:23.600 --> 0:18:29.080 vacate a seventeen day time serve sentence that Judge Brinckema 0:18:29.200 --> 0:18:32.240 handed down. Now, that was a difference between a seventeen 0:18:32.359 --> 0:18:36.520 day time served sentence and the guidelines that call for 0:18:36.640 --> 0:18:40.359 sixteen years to nineteen years. And this case will also 0:18:40.440 --> 0:18:43.639 be decided by the Fourth Circuit. I mean, is it 0:18:43.760 --> 0:18:45.800 unusual to have a sentence reversed? 0:18:46.280 --> 0:18:49.359 Well, let me put it this way, It's not unusual 0:18:49.520 --> 0:18:52.080 the appellate court if they do the two step analysis 0:18:52.160 --> 0:18:55.720 procedural and substantive, and they find that there was a 0:18:55.760 --> 0:18:58.159 failure in either one or the other. You know, if 0:18:58.200 --> 0:19:01.359 it's a procedural defect, then of course the judge didn't 0:19:01.359 --> 0:19:03.399 do what was required. If the judge does do all 0:19:03.440 --> 0:19:06.800 this required, but then the pell Court feels substantively that 0:19:06.840 --> 0:19:09.480 the judge gave too much credit on one factor but 0:19:09.560 --> 0:19:12.399 not another. You know that obviously in the one that 0:19:12.440 --> 0:19:16.080 you made reference to with Judge Brikhama. Okay, so sixteen 0:19:16.160 --> 0:19:19.800 to nineteen and a half was the guidelines recommendation, and 0:19:19.920 --> 0:19:23.320 she gave seventeen days time served, and the fourth cicket 0:19:23.359 --> 0:19:27.600 said that was an abusive discretion. She resentenced and I 0:19:27.640 --> 0:19:29.600 think the re sentence was to like three years. Yeah, 0:19:30.720 --> 0:19:34.960 still a significant departure below the you know, sixteen to 0:19:35.040 --> 0:19:38.720 nineteen year And remember these are guidelines. You know, they're 0:19:38.760 --> 0:19:42.040 not mandatory, and you had a United States Supreme Court 0:19:42.119 --> 0:19:44.680 say that if the guidelines were interpreted as mandatory, that 0:19:44.760 --> 0:19:48.000 there may be a separation of powers, violation of the Constitution, 0:19:48.520 --> 0:19:51.920 and in order to preserve the structure of the sentencing guidelines, 0:19:52.240 --> 0:19:56.480 they should be interpreted as discretionary. Discretion has to be 0:19:56.560 --> 0:19:59.040 used in a way that's not abusive. But you know, 0:19:59.240 --> 0:20:02.640 Congress has a if they wanted to say that making 0:20:02.720 --> 0:20:06.600 a threat against a federal judge was punishable by a 0:20:06.640 --> 0:20:11.480 mandatory sentence of fifteen to twenty years, then they could 0:20:11.520 --> 0:20:14.560 certainly do that Congress has not done that, and so 0:20:14.960 --> 0:20:17.520 the way in which that sentencing of thirty years to 0:20:17.600 --> 0:20:20.639 life came out was a function of guidelines and certain 0:20:20.680 --> 0:20:24.200 factors in that. And you know, even in the after 0:20:24.240 --> 0:20:27.240 a reversal, it doesn't mean that the judge lacks the 0:20:27.280 --> 0:20:30.879 discretion to be able to depart below what the guidelines 0:20:30.920 --> 0:20:34.680 recommendations are if they believe that a guideline sentence would 0:20:34.720 --> 0:20:37.840 be more than what's sufficient but no more than necessary 0:20:38.280 --> 0:20:42.360 to accomplish the overall goals of federal sentencing, the appellate 0:20:42.359 --> 0:20:47.320 court will be mindful of the you know, the nature 0:20:47.359 --> 0:20:51.879 of this. It's not insignificant that Supreme Court justice was 0:20:51.880 --> 0:20:55.480 the one threatened, but you know, child court judges are 0:20:55.480 --> 0:20:58.159 getting threatened constantly, and I would say, how many of 0:20:58.200 --> 0:21:01.760 those five hundred plus threats are against Supreme Court justices 0:21:01.760 --> 0:21:05.600 as opposed to trial judges. There's just an extraordinary large 0:21:05.680 --> 0:21:08.160 number of these threats coming down the pike with language 0:21:08.200 --> 0:21:11.200 that is so intemperate from people who are in high 0:21:11.200 --> 0:21:15.040 positions in government, who have traditionally had more moderation in 0:21:15.080 --> 0:21:17.520 the way in which they discussed this. So there's a 0:21:17.560 --> 0:21:20.800 lot of interest in this. The panel that gets it will, 0:21:20.880 --> 0:21:23.199 I'm sure do a very thorough job of going through it. 0:21:23.520 --> 0:21:26.240 I can tell you this, there will be plenty of 0:21:26.960 --> 0:21:30.119 appellate briefing by both the defense and the government, and 0:21:30.720 --> 0:21:33.840 there may even be anekas briefs by various groups or 0:21:33.960 --> 0:21:36.359 entities that think that they have an insight that would 0:21:36.400 --> 0:21:39.880 help the court in deciding the appeal. You're right, this 0:21:39.960 --> 0:21:42.919 is a high profile case, and I suspect that George 0:21:42.960 --> 0:21:45.119 Boardman was aware that it was high profile from the 0:21:45.200 --> 0:21:47.919 get go, and that's probably why she was as careful 0:21:47.960 --> 0:21:50.120 as she was in her Roally. 0:21:50.480 --> 0:21:53.399 This will be a closely watched appeal. Thank you so much, 0:21:53.520 --> 0:21:57.680 Judge grim that's former federal judge Paul Grimm of Duke 0:21:57.760 --> 0:22:01.240 Law School, coming up next on the Bloomberg Law Show. 0:22:01.760 --> 0:22:05.080 Pets are treated like children in divorces in New York, 0:22:05.600 --> 0:22:08.640 but not so in other areas of the law. I'm 0:22:08.720 --> 0:22:13.120 June Grosso. When you're listening to Bloomberg, you may think 0:22:13.160 --> 0:22:16.240 of your dog or other pets as a cherished member 0:22:16.280 --> 0:22:20.520 of the family. After all, they often have designer clothes, 0:22:20.840 --> 0:22:24.480 special meals delivered, and toys that any kid would love. 0:22:25.160 --> 0:22:27.440 But even though New York law has come a long 0:22:27.480 --> 0:22:30.640 way in recognizing pets as part of the family. When 0:22:30.640 --> 0:22:34.520 there's a divorce or an accident, they're still treated as 0:22:34.640 --> 0:22:38.400 property in the family will my guest is Suzanne, though 0:22:38.600 --> 0:22:42.440 a trust and a states lawyer. In most states, how 0:22:42.480 --> 0:22:47.280 are pets treated. Are they treated as personal property or 0:22:47.640 --> 0:22:48.359 something else? 0:22:48.880 --> 0:22:51.239 For a long standing principles, pets have been treated as 0:22:51.280 --> 0:22:55.040 some form of personal property, and certainly New York pets 0:22:55.040 --> 0:22:57.920 are treated as tangible personal property. So I'm an a 0:22:57.960 --> 0:23:01.520 state's lawyer. I oftentimes special provisions for pets, but they're 0:23:01.520 --> 0:23:05.720 within the article that's generally covered tangible personal property that 0:23:06.000 --> 0:23:09.320 covers things like your furniture or valuable artwork or antiques. 0:23:09.680 --> 0:23:11.719 And I definitely do have clients to take offense to that. 0:23:11.960 --> 0:23:16.560 But unfortunately, in New York, pets are personal property like 0:23:16.600 --> 0:23:19.840 you're furnishings. And that is the trend in most states 0:23:19.920 --> 0:23:22.760 is seeing pets as a form of personal property. But 0:23:22.800 --> 0:23:26.760 there's definitely aspects of law where that is changing. But 0:23:27.119 --> 0:23:30.400 it's changing in different aspects of state law, as opposed 0:23:30.440 --> 0:23:33.960 to a general change in the standing of pets in 0:23:34.000 --> 0:23:37.400 every aspect of state law. It's coming in patchwork sections 0:23:37.400 --> 0:23:38.560 of different states laws. 0:23:38.640 --> 0:23:42.399 Susan tell Us about this landmark New York Supreme Court 0:23:42.480 --> 0:23:47.920 case that established that pet owners can recover emotional damages 0:23:48.359 --> 0:23:50.800 for the death of their pets as if they were 0:23:51.200 --> 0:23:55.040 part of their human family, but in certain limited circumstances. 0:23:55.560 --> 0:23:58.400 A woman and her son were walking the sun's dog 0:23:58.640 --> 0:24:01.639 in a Neighbouringham, Brooklyn. They got to an intersection that 0:24:01.680 --> 0:24:05.480 contained her crosswalk and a stop sign, and the mom 0:24:06.000 --> 0:24:08.959 was actually holding the leash. So the mom is holding 0:24:09.000 --> 0:24:13.120 the leash, steps into the crosswalk, looks both sides, doesn't 0:24:13.119 --> 0:24:16.960 see anyone coming, steps into the crosswalk. Her adult son 0:24:17.040 --> 0:24:19.680 is next to her, but she's holding the leash. They 0:24:19.720 --> 0:24:23.800 get more than halfway through the crosswalk when a vehicle 0:24:24.560 --> 0:24:28.720 crosses the stop sign without stopping, doesn't turn his turn 0:24:28.840 --> 0:24:33.560 signal on and turns directly into them, and the mom 0:24:33.680 --> 0:24:36.399 sees the car coming has enough time to at least 0:24:36.800 --> 0:24:39.520 turn around and attempt to get back to the sidewalk, 0:24:39.840 --> 0:24:43.000 but unfortunately, the dog is struck and killed by the 0:24:43.119 --> 0:24:46.919 driver of the truck. So then a civil lawsuit, the 0:24:46.960 --> 0:24:50.760 mother sued the driver of the truck for civil damages, 0:24:51.000 --> 0:24:54.639 and her claims were for compensation because the dog was killed, 0:24:54.840 --> 0:24:58.600 for the cost of the dog and for veterinary care. 0:24:58.920 --> 0:25:01.919 But also the more interesting claim was she claimed the 0:25:01.960 --> 0:25:07.120 mom claimed emotional damages for negcellent infliction of emotional distress 0:25:07.160 --> 0:25:11.360 because she suffered having to watch her son's dog essentially 0:25:11.400 --> 0:25:14.360 be negligently murdered in front of her. And the son 0:25:14.480 --> 0:25:17.560 also sued for negilent infliction of emotional distress because even 0:25:17.560 --> 0:25:20.600