WEBVTT - Can Justice Jackson Shift the Court's Crime Docket? 0:00:03.160 --> 0:00:07.960 This is Bloomberg Law with June Brasso from Bloomberg Radio. 0:00:09.119 --> 0:00:13.600 During her confirmation hearings, Justice Katangi Brown Jackson said her 0:00:13.640 --> 0:00:17.720 experiences as a public defender, a member of the Sentencing Commission, 0:00:17.920 --> 0:00:21.120 and appellate judge, and a trial judge would inform her 0:00:21.280 --> 0:00:25.040 role on the Supreme Court. I was a trial judge, 0:00:25.400 --> 0:00:31.200 and my methodology has developed in that context. I don't 0:00:31.200 --> 0:00:34.159 know how many other justices other than Justice so do 0:00:34.280 --> 0:00:39.639 mayor have that same perspective. But it informs me with 0:00:39.680 --> 0:00:44.960 respect to what I understand to be my proper judicial role. Now, 0:00:45.000 --> 0:00:47.920 some defense lawyers are hoping that Jackson will become a 0:00:48.040 --> 0:00:52.360 voice for criminal defendants unlike her predecessor, and use the 0:00:52.440 --> 0:00:55.360 weight of her experience to form a new majority on 0:00:55.400 --> 0:00:59.040 the court in some criminal cases. An early task will 0:00:59.080 --> 0:01:01.920 come in a case that asks whether judges can punish 0:01:01.960 --> 0:01:05.959 defendants for crimes a jury has acquitted them of. Joining 0:01:06.000 --> 0:01:10.240 me is Ohio State University law professor Douglas Burman. Do 0:01:10.240 --> 0:01:14.400 do you think that Justice Jackson's background will give her 0:01:14.480 --> 0:01:18.000 more gravity toss than a normal junior justice at the 0:01:18.040 --> 0:01:22.319 conference table when it comes to criminal justice issues? Yeah, so, 0:01:22.640 --> 0:01:28.160 Judge Jackson has a really rich history both in the 0:01:28.200 --> 0:01:31.040 work of the judiciary. So you know, he clerked for 0:01:31.120 --> 0:01:33.680 three different judges, you know, two judges and a justice. 0:01:33.760 --> 0:01:36.200 In that in and of itself is exceptional, and I 0:01:36.240 --> 0:01:39.920 think gives her a rich set of perspectives about the 0:01:39.959 --> 0:01:42.640 work of judging, in particularly the kinds of cases that 0:01:42.680 --> 0:01:45.200 work their way through the federal court. You it's quite 0:01:45.240 --> 0:01:48.120 common now, I'm almost I think all but maybe Justice Hagan, 0:01:48.360 --> 0:01:51.520 of the current justices, had experienced as a circuit judge, 0:01:51.560 --> 0:01:54.160 so seeing cases that made their way to Screme Court 0:01:54.320 --> 0:01:57.920 from the appellate stage. But Justice Jackson both clerked the 0:01:57.960 --> 0:02:00.800 District Court, the Circuit Court, and the Supreme Court, and 0:02:00.800 --> 0:02:03.760 then had a pretty extensive period as a district judge, 0:02:03.920 --> 0:02:06.280 then a short period as a circuit judge. And so 0:02:06.680 --> 0:02:09.560 that piece, even apart from her time as a federal 0:02:09.639 --> 0:02:12.680 public defender and serving on the Sentencing Commission, that piece 0:02:12.720 --> 0:02:16.520 already not only distinguishes her from her colleagues, but I 0:02:16.560 --> 0:02:20.360 think particularly gives her a set of insights and perhaps 0:02:20.440 --> 0:02:23.160 an extra bit of confidence in kind of knowing how 0:02:23.560 --> 0:02:26.800 federal courts deal with the range of issues at every level. 0:02:27.000 --> 0:02:28.919 And then the piece that really carries over to the 0:02:28.919 --> 0:02:31.760 criminal justice space that I work in, is that she 0:02:31.840 --> 0:02:35.120 has a background as a federal public defender, one of 0:02:35.120 --> 0:02:38.880 the few justices who in the Court's entire history have 0:02:39.000 --> 0:02:41.440 had a role in that respect, and then also served 0:02:41.440 --> 0:02:43.680 a number of years on the U. S Sentencing Commission 0:02:43.680 --> 0:02:47.280 and so particularly looked at sentencing practice and policy that way. 0:02:47.280 --> 0:02:49.720 And so you've got to add all that up. And 0:02:49.760 --> 0:02:52.240 even though she's the youngest justice, she's in some sense 0:02:52.280 --> 0:02:55.840 the most experience in sort of watching the federal justice 0:02:55.880 --> 0:03:00.400 system function from all these different perspectives. Her predecessor, she's saying, 0:03:00.480 --> 0:03:03.840 just as Stephen Bryer, and everyone knows him as a 0:03:03.880 --> 0:03:09.080 liberal justice, but he wasn't necessarily so liberal in criminal 0:03:09.440 --> 0:03:11.919 defense matters, was he? That's right? I mean, I think 0:03:11.960 --> 0:03:13.840 over the course of you know, a couple decades on 0:03:13.880 --> 0:03:16.160 the court, you could point to, Oh, these were some 0:03:16.360 --> 0:03:19.120 very liberal positions he had on some criminal justice matters. 0:03:19.120 --> 0:03:21.440 And the most obvious one there might be the death penalty, 0:03:21.480 --> 0:03:23.960 where he seemed, especially in his later years, to be 0:03:23.960 --> 0:03:25.760 trying to build an argument that the way the death 0:03:25.760 --> 0:03:28.639 penalty functions our country is unconstitutional. But then you look 0:03:28.639 --> 0:03:31.639 at some other matters sometimes his rulings on Fourth Amendments 0:03:31.680 --> 0:03:34.680 for concesure issues, his rulings on the right to jury 0:03:34.720 --> 0:03:37.560 trials under the Sixth Amendments, some other issues as well. 0:03:37.800 --> 0:03:41.720 He was much more inclined to be leaning towards the prosecution, 0:03:41.920 --> 0:03:44.920 or at least in some sense was maybe valuably unpredictable, 0:03:45.040 --> 0:03:47.040 very eager to kind of hear the pros and cons. 0:03:47.080 --> 0:03:49.120 But but often that was kind of styled in the 0:03:49.120 --> 0:03:52.720 context of being a very pragmatic justice who was very 0:03:52.760 --> 0:03:56.400 concerned about whether and how any limits on law enforcement 0:03:56.400 --> 0:04:01.080 and he limits on prosecutors might function to undermine some 0:04:01.160 --> 0:04:03.480 broader goals in the criminal justice system. And so in 0:04:03.520 --> 0:04:06.040 many respects, every justice is open minded to these issues. 0:04:06.200 --> 0:04:09.520 But I think definitely Justice Prior, especially compared more recently 0:04:09.560 --> 0:04:13.720 to Justice sodomy Or, was less likely to be critical 0:04:13.840 --> 0:04:16.160 or at least questioning of a lot of assertions that 0:04:16.360 --> 0:04:18.480 you couldn't limit the police this way or you couldn't 0:04:18.520 --> 0:04:21.320 restrict trial rights that way without having a found impact 0:04:21.360 --> 0:04:24.039 on the operation of the criminal justice system. Tell us 0:04:24.080 --> 0:04:27.839 about the case of Dante McClinton, a case of the 0:04:27.920 --> 0:04:32.160 justices are considering whether or not they'll take so this 0:04:32.200 --> 0:04:35.680 case involved the young man who got involved with a 0:04:35.760 --> 0:04:40.560 number of other young men and they robbed a pharmacy. Sadly, 0:04:40.680 --> 0:04:42.640 in the course of doing so, garrid and awful lot 0:04:42.640 --> 0:04:46.159 of people there, but didn't directly hurt anybody and only 0:04:46.160 --> 0:04:49.120 were able to get away with a few hundred dollars. Then, 0:04:49.200 --> 0:04:51.960 in the course of dividing up the loot that they 0:04:52.000 --> 0:04:54.400 got and kind of fighting over it, seems how the 0:04:54.480 --> 0:04:58.400 robbery didn't go well, one of the robbers involved got 0:04:58.520 --> 0:05:02.600 shot and shot and killed. And the prosecution's claim was 0:05:02.640 --> 0:05:05.920 that Mr McClinton was the shooter and was guilty of 0:05:06.040 --> 0:05:08.960 speaking to try to rob his cohort of his part 0:05:08.960 --> 0:05:11.000 of the loot, and when he couldn't get it, he 0:05:11.040 --> 0:05:14.320 then shot this individual ultimately, and this is a key 0:05:14.400 --> 0:05:17.160 part of the story. The jury didn't agree with that theory, 0:05:17.279 --> 0:05:20.000 and there was evidence presented a trial that suggested somebody 0:05:20.040 --> 0:05:22.719 else may have done that, and the details were unclear. 0:05:22.960 --> 0:05:25.640 What was clear is this Hurry was not convinced was 0:05:25.680 --> 0:05:29.440 not certain that Mr McClinton should be held accountable because 0:05:29.440 --> 0:05:32.440 they acquitted him on the charges at trial that related 0:05:32.480 --> 0:05:34.920 to the other young man being shot and killed. When 0:05:35.120 --> 0:05:38.359 the case got to sentence thing. However, the government said, hey, judge, 0:05:38.400 --> 0:05:40.839 remember all that evidence he put forward, you know, arguing 0:05:40.880 --> 0:05:43.800 that he was guilty of killing his co conspirator. Well, 0:05:43.960 --> 0:05:46.760 even though the jury acquitted on those counts, we still 0:05:46.800 --> 0:05:50.160 think the evidence should convince you by a preponderance the evidence, 0:05:50.160 --> 0:05:53.240 which is typically the standard applied at sentencing as opposed 0:05:53.279 --> 0:05:55.560 to the beyond a reasonable doubt standard applied at trial. 0:05:55.839 --> 0:05:57.680 We think you should still be convinced that he was 0:05:57.720 --> 0:06:00.480 responsible for that other young man's death. And so when 0:06:00.480 --> 0:06:03.240 you sentenced him for the robbery that he was convicted of, 0:06:03.360 --> 0:06:06.080 consider also the fact that he is responsible for causing 0:06:06.080 --> 0:06:08.240 this death, that he really is a murderer, even though 0:06:08.240 --> 0:06:11.240 the jury acquitted him on that. So the judge sentenced 0:06:11.279 --> 0:06:15.799 him to twenty years as opposed to the about five 0:06:15.880 --> 0:06:19.120 years he would have gotten if he'd been sentenced just 0:06:19.240 --> 0:06:22.880 for the robbery he was actually convicted of. That's pretty 0:06:22.960 --> 0:06:24.880 much right. And again, exactly what he would have gotten 0:06:24.960 --> 0:06:27.440 for just the robbery could be debated. And this is 0:06:27.480 --> 0:06:31.240 where things get complicated because fundamentally there could be other 0:06:31.279 --> 0:06:35.080 aggravating factors that judge might rely on. But the judge said, 0:06:35.279 --> 0:06:37.599 I think you were responsible for this death. I think 0:06:37.640 --> 0:06:40.040 because of that, I have to increase your guideline range, 0:06:40.080 --> 0:06:42.520 because the guideline range was even in the thirty year 0:06:42.600 --> 0:06:45.120 rain and the judge decided to only I put that 0:06:45.160 --> 0:06:48.920 in air quote give twenty and the rich lo hung 0:06:49.000 --> 0:06:52.960 detailed backstory is there's a case from almost twenty five 0:06:53.040 --> 0:06:56.120 years ago now with the Supreme Court said a judge 0:06:56.120 --> 0:06:59.800 is consideration of evidence, even related to counts on which 0:06:59.839 --> 0:07:03.000 a defendant has been acquitted, doesn't violate to process. And 0:07:03.520 --> 0:07:07.200 that older decision came before some more recent rulings about 0:07:07.240 --> 0:07:08.960 the right to jury trial and the reach of the 0:07:09.000 --> 0:07:11.640 sixth Amendment. And so there's been lots of complaints by 0:07:11.680 --> 0:07:13.600 by me and lots of other people saying we don't 0:07:13.600 --> 0:07:17.240 think that's good precedent anymore, and the McClinton cases being 0:07:17.440 --> 0:07:20.200 pressed as an opportunity for the court to reconsider that 0:07:20.320 --> 0:07:23.880 older precedent. Does this come up often? I would think 0:07:23.920 --> 0:07:27.200 it doesn't. However, since there's a term for this acquitted 0:07:27.240 --> 0:07:31.240 conduct issue, I guess it does. You know, again, it 0:07:31.280 --> 0:07:34.560 depends on how you wanted to fine office. So given 0:07:34.600 --> 0:07:38.880 the fact that roughly speaking, nineteen out of twenty cases 0:07:38.960 --> 0:07:42.920 in the federal system are resolved by please then you know, 0:07:42.960 --> 0:07:45.240 in the vast majority of cases this can't come up 0:07:45.360 --> 0:07:48.280 because the case has been resolved by a plea and 0:07:48.640 --> 0:07:51.960 the terms of sentencing are defined by what's been admitted 0:07:52.360 --> 0:07:54.400 as part of the police But in a lot of 0:07:54.440 --> 0:07:57.720 cases they go to trial, it's quite common that there's 0:07:57.800 --> 0:08:01.200 multiple counts and that the defendant isn't convicted on all 0:08:01.240 --> 0:08:03.680 the multiple accounts. And there can actually be different variations 0:08:03.680 --> 0:08:07.040 on this theme. One variation that's fairly high profile, that's 0:08:07.080 --> 0:08:09.400 not exactly the same issue, but but I made reference 0:08:09.440 --> 0:08:12.520 to it, and some of my writings about these matters 0:08:12.760 --> 0:08:16.400 is the Elippus Holmes. There a Noose trial where there 0:08:16.400 --> 0:08:19.600 were multiple fraud counts brought to the jury. She was 0:08:19.640 --> 0:08:21.840 convicted on a few of them, and then there was 0:08:21.880 --> 0:08:24.360 a hung jury on some of the others, and those 0:08:24.400 --> 0:08:27.440 have now been dismissed because the prosecution said, we don't 0:08:27.440 --> 0:08:29.720 want to bother We've got enough convictions here. We're not 0:08:29.720 --> 0:08:32.680 going to try to retry those those hung counts. But 0:08:32.920 --> 0:08:35.280 one of the reasons the prosecutor feels comfortable doing that 0:08:35.440 --> 0:08:39.839 is under these doctrines there and completely entitled to they 0:08:39.960 --> 0:08:42.840 might even think they're obliged to put forward that evidence 0:08:42.840 --> 0:08:46.440 to the judges sentences. A judge still think that the 0:08:46.480 --> 0:08:49.640 amount of loss or the other aggravating factors under those 0:08:49.679 --> 0:08:52.559 counts that led to a hung jury, we still think 0:08:52.559 --> 0:08:55.199 we proved them close enough for government work, so to speak, 0:08:55.320 --> 0:08:58.240 and that should be part of your calculations as to 0:08:58.320 --> 0:09:01.479 what kind of sentence you should be facing. And there's 0:09:01.520 --> 0:09:03.720 a bunch of other examples like this too. What what 0:09:04.280 --> 0:09:09.400 often very common in the drug settings, which are part 0:09:09.400 --> 0:09:11.800 and parts of about bill at least a quarter is 0:09:11.800 --> 0:09:14.839 not more of the federal cases that get brought, is 0:09:15.360 --> 0:09:18.160 the government will charge the defendant with multiple accounts of 0:09:18.240 --> 0:09:21.280 drug dealing or being part of a broader conspiracy in 0:09:21.320 --> 0:09:23.679 which there was lots and lots of dealing going on. 0:09:24.440 --> 0:09:26.800 If the case goes to trial, again, that's the exception. 0:09:26.880 --> 0:09:29.080 But if the case goes to trial, it's not at 0:09:29.120 --> 0:09:32.280 all uncommon that a jury will reach a mixed verdict. Oh, yes, 0:09:32.400 --> 0:09:35.520 we think the defendant was definitely involved in these five 0:09:35.600 --> 0:09:39.640 transactions where they were personally doing the sales. But you 0:09:39.679 --> 0:09:42.760 say he's also part of these twenty other transactions and 0:09:42.800 --> 0:09:45.760 he says he wasn't. We have a doubt about that 0:09:45.800 --> 0:09:48.640 we're going to quit on those other charges. And then 0:09:48.679 --> 0:09:51.679 still the prosecution can say, they often say in those 0:09:51.760 --> 0:09:55.760 kinds of cases, well, using the preponderance of evidence standard judge, 0:09:56.320 --> 0:09:58.600 we think we put enough evidence the show he was 0:09:58.840 --> 0:10:02.160 connected to these other twenty sales, and so you should 0:10:02.240 --> 0:10:05.000 use the amount of drugs that were involved not just 0:10:05.120 --> 0:10:07.400 in these sales that he was convicted of, but all 0:10:07.440 --> 0:10:09.360 these other sales that we think we have evidence to 0:10:09.360 --> 0:10:12.000 connect into, that all should be part of the guideline 0:10:12.040 --> 0:10:15.120 calculation that drives up the sentence. And that's basically the 0:10:15.160 --> 0:10:18.440 fact pattern that led to a case about ten years ago, 0:10:19.000 --> 0:10:22.480 really the same basic issue where the late Justice Scalia 0:10:22.679 --> 0:10:26.760 and Justice Ginsburg joined with Justice Thomas in the sending 0:10:27.160 --> 0:10:29.560 from the denial of Sirt. There was a case called Jones, 0:10:29.679 --> 0:10:32.480 where again it was this drug setting where the prosecution 0:10:33.040 --> 0:10:35.560 claimed the series of defendants were involved in all sorts 0:10:35.559 --> 0:10:37.960 of drug dealings. The jury came back with a very 0:10:38.000 --> 0:10:40.560 mixed and limited verdict, and then the prosecution went back 0:10:40.600 --> 0:10:43.280 to the judge of sentencing and said all the drug 0:10:43.320 --> 0:10:46.280 dealing we are led should be considered for deciding what 0:10:46.360 --> 0:10:49.440 the guideline ranges and the judge concluded at sentencing, Yeah, 0:10:49.600 --> 0:10:51.840 I guess I'm convinced that that's more likely than not, 0:10:52.000 --> 0:10:54.720 and so I've got to drive up the guideline sentencing range, 0:10:55.000 --> 0:10:59.280 which is often, you know, tethered to these quantifiable factors 0:10:59.360 --> 0:11:01.920 like how much drugs are involved or how much loss 0:11:02.000 --> 0:11:05.200 is involved. And that's why this can become not just 0:11:05.400 --> 0:11:07.720 common in the cases that go to trial, but have 0:11:07.960 --> 0:11:13.079 such significant impacts in the length of sentence being recommended 0:11:13.080 --> 0:11:15.680 by the guidelines and the amount of prison time ultimately 0:11:15.679 --> 0:11:20.440 given by judge in that case. In case they needed 0:11:20.440 --> 0:11:22.800 one more vote to take the case, why do you 0:11:22.840 --> 0:11:25.640 think they didn't have the vote of Justice soda Mayor 0:11:25.840 --> 0:11:29.200 or Justice Kagan. Well, thanks for quewing that up, because 0:11:29.240 --> 0:11:32.320 this gets back to our earlier points about Justice Brier 0:11:32.679 --> 0:11:38.000 has been consistently concerned about extending jury trial rights that 0:11:38.080 --> 0:11:41.400 would limit in some respect how judges used their discretion 0:11:41.440 --> 0:11:45.840 as sentences, and so my read on that was always 0:11:45.880 --> 0:11:49.760 the Justices Sotomayor and Kagan, even though they might be 0:11:49.800 --> 0:11:52.400 inclined to vote with the defendant in the case like that, 0:11:52.800 --> 0:11:56.240 we're quite concerned about what Justice Brier might think, and 0:11:56.880 --> 0:12:00.120 even was concerned that maybe Justice Brier would convince are 0:12:00.160 --> 0:12:02.600 members of the Court to not want to limit the 0:12:02.720 --> 0:12:05.760 use of acquitted conduct once the case actually got taken up. 0:12:05.800 --> 0:12:08.760 So their instinct maybe was, let's just let this issue 0:12:08.760 --> 0:12:10.760 percolates the more and hope, you know, to get addressed 0:12:10.800 --> 0:12:13.040 some other way. You know. Among the things that's interesting 0:12:13.080 --> 0:12:16.840 on this particular topic is there have been both congressional 0:12:17.200 --> 0:12:21.760 bills to rewrite the sentencing rules in statute to say 0:12:21.800 --> 0:12:24.880 that judges shouldn't consider this kind of acquitted conducts And 0:12:25.000 --> 0:12:29.720 just recently, the newly constituted U S Sentencing Commission has 0:12:29.800 --> 0:12:32.480 indicated that one of their possible priorities for the coming 0:12:32.559 --> 0:12:34.920 year would be to speak to this issue as well. 0:12:34.960 --> 0:12:37.560 And so I think there's an argument to be made 0:12:37.640 --> 0:12:39.959 or more accurately, this is what the Supreme Court is 0:12:40.000 --> 0:12:41.920 likely going to be struggling with, even if they think 0:12:41.960 --> 0:12:45.000 this is a problematic practice. She should we be addressing 0:12:45.000 --> 0:12:48.199 this through broad constitutional rules or is this the kind 0:12:48.200 --> 0:12:51.199 of matter that it makes more sense to envision Congress 0:12:51.240 --> 0:12:53.400 and the Sentencing Commission to dress in the ways that 0:12:53.559 --> 0:12:56.800 they're arguably more able to craft nuanced rules to deal with. 0:12:57.280 --> 0:13:00.520 So you need the votes of for justices to take 0:13:00.559 --> 0:13:03.680 the case. Let's say you have Clarence Thomas because he 0:13:03.760 --> 0:13:06.839 was in dissent on the last one. Let's big. You 0:13:06.920 --> 0:13:09.800 never know how these things go right exactly, and so 0:13:10.040 --> 0:13:15.120 you might have Justice Jackson and Justices Soda, Mayor and Kagan. Maybe, 0:13:15.160 --> 0:13:17.560 I actually think, although again this gets to, you know, 0:13:18.000 --> 0:13:22.400 the kind of inside baseball speculations. Justice Gorset has actually 0:13:22.440 --> 0:13:26.880 been one of the most vocal advocates for jury trial rights, 0:13:26.960 --> 0:13:29.800 kind of stepping into the shoes of Justice Scalia, who 0:13:29.880 --> 0:13:32.400 was one of the most vocal ones. So I think 0:13:32.760 --> 0:13:35.960 Justice Corsets might be a fourth vote, maybe a fifth vote, 0:13:35.960 --> 0:13:38.480 depending on how all this comes together. In addition, and 0:13:38.520 --> 0:13:42.199 I think not to be overlooked, Justice Kavanaugh has actually 0:13:42.320 --> 0:13:46.400 written when he was a DC circuit to say that 0:13:46.440 --> 0:13:48.280 he thinks this is a problem and that the Supreme 0:13:48.320 --> 0:13:50.600 Court ought to take it up to kind of clarify things. 0:13:50.640 --> 0:13:53.760 Although that's sometimes easier to say when you're a circuit 0:13:54.240 --> 0:13:57.720 you're telling what other than when you're a justice yourself. 0:13:57.880 --> 0:14:02.040 So you know, I think he's another possible vote. And last, 0:14:02.040 --> 0:14:06.160 but absolutely not least, Chief Justice Roberts also has been 0:14:06.800 --> 0:14:11.480 relatively quiet but not disengaged justice with respect to some 0:14:11.559 --> 0:14:14.800 of these jury trial right issues. And so I think 0:14:15.000 --> 0:14:17.760 there's reasons to speculate there could be ample votes. But 0:14:17.800 --> 0:14:20.000 I also think there's a way one could say, yeah, 0:14:20.080 --> 0:14:22.320 but you know what, Now it looks like Congress is 0:14:22.480 --> 0:14:24.480 interested in maybe addressing this. Now it looks like the 0:14:24.520 --> 0:14:27.280 centen In Commission is interested in addressing this. If we 0:14:27.360 --> 0:14:30.720 jump in, that will disrupt that process, or at least 0:14:30.760 --> 0:14:33.960 we're worried maybe we can't craft a rule as a 0:14:33.960 --> 0:14:37.040 matter of constitutional law that will be as nuanced and 0:14:37.120 --> 0:14:40.320 helpful as the development of a rule through some other process, 0:14:40.760 --> 0:14:43.680 legislative or commission based. It's never easy to figure out 0:14:43.720 --> 0:14:46.400 whether or not the court is going to take a case, 0:14:46.560 --> 0:14:50.359 is it? Thanks so much, Doug? That's Ohio State University 0:14:50.440 --> 0:14:57.760 law professor Douglas Berman. Twenty million, million, million, You get 0:14:57.760 --> 0:14:59.520 a million, You got hunter, a million, You got a 0:14:59.520 --> 0:15:03.880 famili On his Info War show, Alex Jones mocked the 0:15:03.920 --> 0:15:07.760 nearly one billion dollar jury verdict against him for spreading 0:15:07.760 --> 0:15:10.880 the myth that the deadliest school shooting in US history 0:15:11.320 --> 0:15:15.000 never happened, saying he could keep the Sandy Hook families 0:15:15.080 --> 0:15:19.000 in court for years. People actually they're getting money. Getting 0:15:19.000 --> 0:15:21.520 the verdict is only the first hurdle in a long 0:15:21.640 --> 0:15:25.520 legal process for the families, one complicated by the fact 0:15:25.560 --> 0:15:29.520 that Jones company, Free Speed Systems, has filed for bankruptcy. 0:15:29.920 --> 0:15:33.960 Joining me is bankruptcy attorney Nicholas Kroft a Fox Rothschild. 0:15:34.520 --> 0:15:38.320 This verdict n five million and then another fifty million 0:15:38.400 --> 0:15:43.840 in Texas. How often are these huge verdicts collected? Well, 0:15:43.840 --> 0:15:46.160 I mean it's tough when you have a bankruptcy case 0:15:46.240 --> 0:15:48.960 intervening in particularly here we have a bankrupcy case that 0:15:49.080 --> 0:15:53.040 was filed kind of strategically before these judgments were entered. 0:15:53.400 --> 0:15:56.240 When you have a billion dollar judgment, it's pretty tough 0:15:56.360 --> 0:15:58.600 to collect on it. And certainly there's a lot of 0:15:58.640 --> 0:16:01.400 motivation ox Jones his part to come up with as 0:16:01.440 --> 0:16:05.440 many maneuverings in court as possible, you know, appropriate or 0:16:05.480 --> 0:16:09.320 not to delay payment on these debts, and these makeups 0:16:09.320 --> 0:16:11.520 to cases are certainly kind of part of that strategy 0:16:11.800 --> 0:16:14.560 to prolong payment and to at least come up with 0:16:14.560 --> 0:16:18.120 a narrative that Free Speech System doesn't have the money 0:16:18.120 --> 0:16:22.600 for it. He's personally liable for the damages if he 0:16:22.640 --> 0:16:25.240 doesn't file for personal bankruptcy, and he claims he has 0:16:25.320 --> 0:16:27.960 less than two million to his name. If he doesn't 0:16:28.000 --> 0:16:31.680 file for personal bankruptcy, can the plaintiffs continue to go 0:16:31.800 --> 0:16:35.440 after him, you know, chase down his assets, go after 0:16:35.600 --> 0:16:38.400 his wages. Yeah, they'll be able to chase him to 0:16:38.440 --> 0:16:40.960 the ends of the earth if they want to. It's 0:16:41.000 --> 0:16:43.160 not kind of the typical judgment that you'd see in 0:16:43.200 --> 0:16:46.200 a torque case where someone is injured incurring medical bills, 0:16:46.480 --> 0:16:49.120 hospital bills that need to get paid. With this judgment, 0:16:49.400 --> 0:16:51.280 you know, there is a little bit more flexibility on 0:16:51.320 --> 0:16:53.760 the plaintiffs part to sit around and wait for Alex 0:16:53.840 --> 0:16:56.480 Jones to start coming up with the money. But again, 0:16:56.800 --> 0:16:59.320 Alex Jon's is going to be motivated to continue trying 0:16:59.360 --> 0:17:02.040 to come up with it's legal fictions that suggests that 0:17:02.080 --> 0:17:04.400 he has no money to pay a judgment. Let's talk 0:17:04.400 --> 0:17:08.679 about the bankruptcy proceedings at his company, Free Speech Systems. 0:17:09.560 --> 0:17:12.879 Is in what stage are they in the bankruptcy proceedings? 0:17:13.560 --> 0:17:16.320 You know, they've they've kind of come to an interesting stage, 0:17:16.400 --> 0:17:18.920 particularly for sub chapter five, And if you don't mind 0:17:18.920 --> 0:17:22.679 them kind of quickly go into just for context, what 0:17:22.800 --> 0:17:26.560 sub chapter five is so so in Congress enacted this 0:17:26.680 --> 0:17:30.200 new sub chapter to Chapter eleven. Chapter eleven's what we're 0:17:30.240 --> 0:17:34.080 all familiar with as a business bankruptcy that's reorganized. What 0:17:34.119 --> 0:17:36.880 has happened over the years is Chapter eleven has become 0:17:37.000 --> 0:17:40.200 very expensive and very time consuming for small mom and 0:17:40.280 --> 0:17:43.479 pop businesses and small mom and pop business owners. So 0:17:43.520 --> 0:17:46.080 what Congress came up with was sub Chapter five, which 0:17:46.119 --> 0:17:49.440 created this kind of expedited proceeding for mom and pop 0:17:49.480 --> 0:17:53.879 businesses to quickly move through something really similar to a 0:17:54.240 --> 0:17:57.280 Chapter eleven but within only a couple of months. And 0:17:57.520 --> 0:17:59.920 the way that Congress came up with that was they 0:18:00.000 --> 0:18:02.560 eliminated some of the oversight that you would typically see 0:18:02.560 --> 0:18:05.119 in the Chapter eleven case. A big one is the 0:18:05.119 --> 0:18:08.400 Committee of Unsecured Creditors, which is this body that kind 0:18:08.400 --> 0:18:11.080 of solves the collective action problem of a bunch of 0:18:11.119 --> 0:18:15.600 small unsecured creditors. They get to help supervise the case 0:18:15.680 --> 0:18:18.359 and appear in the case and and monitor the debtic 0:18:18.480 --> 0:18:20.919 rout it. That's been eliminated in sub Chapter five and 0:18:21.000 --> 0:18:23.400 replaced with a sub Chapter five trustee that has very 0:18:23.480 --> 0:18:26.959 limited oversight roles at the outset, just really to kind 0:18:26.960 --> 0:18:30.480 of help shepherd the plan along to confirmation, and so 0:18:30.560 --> 0:18:34.480 alex Jones used sub Chapter five to file Free Speech 0:18:34.520 --> 0:18:39.520 Systems bankruptcy and that eliminated the oversight of, you know, 0:18:39.600 --> 0:18:42.800 a creditors committee which would probably be populated by these 0:18:43.000 --> 0:18:45.840 victims because they have significant At the time, they had 0:18:45.880 --> 0:18:49.920 significant contingent judgments. And the timing of when alex Jones 0:18:49.960 --> 0:18:53.399 filed Free Speech Systems bankruptcy case is really important. He 0:18:53.440 --> 0:18:57.040 did it before the judgments were entered. Now, again, this 0:18:57.119 --> 0:18:59.760 is really only a provision of the Bankrupty Code intended 0:18:59.800 --> 0:19:02.080 for small mom and pop businesses. But what we've learned 0:19:02.240 --> 0:19:06.640 is Free Speech Systems generates a significant amount of revenue annually. 0:19:06.960 --> 0:19:08.639 So the way that he was able to sneak into 0:19:08.680 --> 0:19:11.399 sub Chapter five was one these massive judgments hadn't been 0:19:11.480 --> 0:19:14.040 entered yet, so those didn't count against him for the 0:19:14.119 --> 0:19:17.639 debt cap that Congress placed on following some Chapter five bankruptcy. 0:19:18.040 --> 0:19:20.160 You can only have a company that has seven point 0:19:20.280 --> 0:19:22.760 five million dollars worth of debt that files. Obviously, these 0:19:22.800 --> 0:19:25.120 judgments were much more significant, but they hadn't been entered yet. 0:19:25.200 --> 0:19:28.719 And the other kind of machination that alex Jones had 0:19:28.720 --> 0:19:31.240 worked out along the way is there's this other n 0:19:31.400 --> 0:19:34.560 p p QPR that he owns, and essentially what p 0:19:34.720 --> 0:19:39.120 QPR does is acts as a middleman between Alex Jones's 0:19:39.320 --> 0:19:43.800 podcasting company, free Speech Systems, and the companies from which 0:19:43.840 --> 0:19:46.720 Free Speech Systems buys all the kind of supplements that 0:19:46.800 --> 0:19:49.879 they sell on the Alex Jones and Worse podcast That 0:19:50.000 --> 0:19:52.600 is a tremendous source of their revenue. Now, it's pretty 0:19:52.600 --> 0:19:56.840 contrived what Free Speech Systems alleged to have occurred between 0:19:56.880 --> 0:20:00.600 p QPR in itself, but apparently p QPR, without their 0:20:00.600 --> 0:20:04.000 middle manning, and Free Speech Systems wracked up a significant 0:20:04.000 --> 0:20:07.680 amount of debt for these middle manning services. And so 0:20:07.760 --> 0:20:11.200 just before Free Speech Systems filed bankruptcy, it entered into 0:20:11.280 --> 0:20:15.760 a secured loan with p QPR in the millions of 0:20:15.760 --> 0:20:19.240 dollars range. And what Free Speech Systems claims is well, 0:20:19.240 --> 0:20:22.520 this was a way to create a repayment plan to 0:20:22.680 --> 0:20:26.080 this other entity that's been doing services for us. The 0:20:26.200 --> 0:20:29.720 contrived part of it looks like it was created to 0:20:30.040 --> 0:20:33.360 at least form an argument that Hay, free Speech Systems 0:20:33.520 --> 0:20:37.919 is insolvent and judgment proof the debt between p QPR 0:20:37.960 --> 0:20:41.800 and Free Speech Systems. These affiliate entities is not counted 0:20:41.800 --> 0:20:44.159 towards the debt limit. So this is how a company 0:20:44.240 --> 0:20:46.400 with a lot of debt and a lot of revenue 0:20:46.960 --> 0:20:51.359 was able to sneak in to this new provision of 0:20:51.400 --> 0:20:55.760 the bankruptcy code that doesn't automatically have the same kind 0:20:55.760 --> 0:20:59.120 of oversight systems in place that a regular Chapter eleven 0:20:59.200 --> 0:21:02.480 case would have. The Sandy Hook families have intervened in 0:21:02.520 --> 0:21:07.200 the bankruptcy case. They accused Jones of burdening his company, 0:21:07.280 --> 0:21:12.160 Free Speech Systems with fifty four million dollars in concocted debt. 0:21:12.800 --> 0:21:15.760 When will those claims be settled? Well, part of the 0:21:15.760 --> 0:21:18.600 early litigation of the bankruptcy case was the victim saying, hey, 0:21:18.640 --> 0:21:22.919 this debt with PQPR is concocted, and it's going to 0:21:23.000 --> 0:21:25.520 form the basis of an argument that Free Speech Systems 0:21:25.640 --> 0:21:29.320 is insolvent and judgment proof. So the victims said to 0:21:29.359 --> 0:21:32.720 the bankruptcy court, look, you know they filed their schedules 0:21:32.720 --> 0:21:36.120 and their financial disclosures free Speech Systems dead, indicating these 0:21:36.160 --> 0:21:40.160 debts were legitimate. The only person in charge of confirming 0:21:40.160 --> 0:21:43.800 weather their legitimate is Alex Jones and his cronies who 0:21:43.800 --> 0:21:48.080 are running this business. We don't trust that. Please appoint 0:21:48.119 --> 0:21:51.200 a committee in this case to look into this, and 0:21:51.240 --> 0:21:54.760 the court kind of took a middle ground approach. Instead 0:21:54.760 --> 0:21:56.840 of appointing a committee, The court said, what I'm gonna 0:21:56.840 --> 0:21:58.480