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Sentencing Backlash & Pets Are Still Property · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosse from Bloomberg Radio.
0:08
Speaker 2: The pushback was swift after marilynd Federal Judge Deborah Boardman
0:13
Speaker 2: sentence Sophie Roski, charged as Nicholas John Rosky, to just
0:18
Speaker 2: over eight years in prison. Attorney General Pam Bondi promised
0:23
Speaker 2: the Justice Department would appeal what she called a woefully
0:27
Speaker 2: insufficient sentence, which was well below the minimum thirty years
0:31
Speaker 2: the government had asked for. Other conservative critics of the
0:35
Speaker 2: light punishment doesn't send a strong enough message. Amid the
0:39
Speaker 2: rise in threats to federal judges, and Senator Ted Cruz,
0:44
Speaker 2: while decrying the violence against judges quote particularly fueled by
0:49
Speaker 2: rhetoric by irresponsible politicians, criticized the judge and called for
0:54
Speaker 2: her impeachment.
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Speaker 3: A left wing Biden appointed judge sentence this attempted murderer,
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Speaker 3: this attempted assassin to just eight years. The Department of
1:06
Speaker 3: Justice asked for thirty years, and that Judge Downward departed
1:10
Speaker 3: by twenty two years. Why because this left wing judge
1:17
Speaker 3: said that the attempted murderer was transgender.
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Speaker 2: In fact, during the day long sentencing hearing, Judge Boardman
1:24
Speaker 2: spent two hours explaining all the factors that led her
1:28
Speaker 2: to the eight year sentence, primarily the fact that Rosky
1:32
Speaker 2: phoned authorities from the scene, reported the incident, and turned
1:37
Speaker 2: herself in. My guest is former Marilyn Federal Judge Paul Grimm,
1:41
Speaker 2: director of the Baltch Judicial Institute at Duke Law School.
1:45
Speaker 2: Did it seem like Judge Boardman anticipated that there would
1:50
Speaker 2: be reaction to her sentencing and an appeal, considering that
1:55
Speaker 2: she spent two hours explaining the factors that went into it.
2:00
Speaker 1: I will say this, Judge Portman is very diligent and
2:04
Speaker 1: enormously experienced judge. She also spent a considerable amount of
2:10
Speaker 1: time as a federal public defender in the District of Maryland,
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Speaker 1: and so she has done hundreds of sentencings, both as
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Speaker 1: a lawyer and as a judge. So she really knows
2:23
Speaker 1: what goes into what's required under the sentencing guidelines and
2:29
Speaker 1: the Statute eighteen US Code three five five three. So
2:34
Speaker 1: she knew in advance, of course, because the government filed
2:38
Speaker 1: a sentencing memorandum and the defense filed a sentencing memorandum
2:43
Speaker 1: that the sentencing guidelines. Because of the way in which
2:46
Speaker 1: the case was charged with a terrorism connection enhancement, that
2:51
Speaker 1: the guidelines were thirty years to life, and she issued
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Speaker 1: a sentence of eight years, perhaps a little bit more
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Speaker 1: than eight years, So she knew that that was either
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Speaker 1: a significant departure or a variance below what the guideline
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Speaker 1: recommendation was. And knowing how careful and thorough Judge Boardman is,
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Speaker 1: I'm sure she expected that if the government thought the
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Speaker 1: sentence was too lenient, that there might be an appeal.
3:21
Speaker 1: And I'm sure that she wanted to make sure that
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Speaker 1: she had dotted all of her eyes and crossed all
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Speaker 1: of her teas in explaining and complying with both the
3:32
Speaker 1: procedural requirements of the statute, which means that you calculated
3:37
Speaker 1: the guidelines correctly. There was a challenge if there was
3:40
Speaker 1: an objection to the calculation of the guidelines. And part
3:43
Speaker 1: of the procedural requirement for a judge to sentence is
3:48
Speaker 1: that the judge goes through the pre sentence report acknowledges
3:51
Speaker 1: what the parties submitted. If there are any challenges by
3:55
Speaker 1: one side or the other, the rules on those gives
3:58
Speaker 1: the rationale for that. You know, Judge Boardman is an
4:01
Speaker 1: active judge. So during the presentation by the government and
4:06
Speaker 1: the presentation by the defense. She likely asked questions. So
4:10
Speaker 1: Judge Bourbman is the kind of judge who's going to
4:12
Speaker 1: let everyone who wants to be heard be heard fully.
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Speaker 1: She'll listen respectfully and carefully. She'll ask questions, She'll make
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Speaker 1: sure she understands what the arguments are, and then she
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Speaker 1: will calculate the guidelines. She would then do what the
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Speaker 1: guidelines require is to analyze the sentencing factors that are
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Speaker 1: set forth for a judge to consider under eighteen US
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Speaker 1: Code three five five three.
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Speaker 2: Tell us about some of those sentencing factors.
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Speaker 1: There are many of them. So you have to talk
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Speaker 1: about the nature and circumstances of the offense, and she did,
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Speaker 1: and she acknowledged it was a very serious offense. You
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Speaker 1: have to look at what kind of a sentence would
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Speaker 1: be respected by the public as being a sufficient sentence
4:58
Speaker 1: for the nature of the circums stances. Given the personal
5:01
Speaker 1: characteristics of the defendant. You have to consider what kind
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Speaker 1: of a sentence would deter this particular defendant from committing
5:08
Speaker 1: future crimes. And that's called specific deterrence. You have to
5:12
Speaker 1: consider general deterrence. What would deter members of the community
5:15
Speaker 1: from doing that given the number of threats against US
5:19
Speaker 1: judges that have been occurring for over well over a decade,
5:22
Speaker 1: but particularly in the last ten months, you know what
5:25
Speaker 1: kind of a sentence would be necessary to deter people
5:27
Speaker 1: from making threats against judges serious offense. You have to
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Speaker 1: talk about the history and characteristics of this particular defendant,
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Speaker 1: whether they have any prior convictions, what kind of convictions
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Speaker 1: those were, what type of offenses they were, And you know,
5:43
Speaker 1: at that point you have to consider certain factors that
5:45
Speaker 1: might be specific to the issues, such as mental health
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Speaker 1: issues or physical health issues of a particular defendant. You
5:53
Speaker 1: have to consider whether or not a sentence should include
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Speaker 1: certain aspects that will assist the rehabilitation of a defendant,
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Speaker 1: such as drug treatment, anger management, or and then when
6:06
Speaker 1: you've gone through all of those, you explain how you
6:11
Speaker 1: ranked and evaluated each factor. This is, of course, comes
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Speaker 1: after you've calculated the guidelines and made a ruling on
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Speaker 1: the guidelines, and you've heard from everybody, and then the
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Speaker 1: statute says that you are to issue a sentence which
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Speaker 1: is sufficient, but not greater than necessary to accomplish the
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Speaker 1: sentencing goals of eighteen US Code Section three five to
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Speaker 1: five to three. So that's the procedural part. I'd be
6:34
Speaker 1: shocked if procedurally, Judge Boardman did not do all of
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Speaker 1: those steps with great detail. The substantive part is whether
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Speaker 1: or not the judge, in announcing the sentence either overvalued
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Speaker 1: or undervalued one particular factor over another.
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Speaker 2: That does seem to be where the appeal will likely
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Speaker 2: be focused on, So tell us what that might look like.
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Speaker 1: So if a judge didn't say too much about deterrence
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Speaker 1: but talked a lot about rehabilitation, then an appellate court
7:06
Speaker 1: might say, well, now, wait a minute, you gave too
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Speaker 1: much emphasis to rehabilitation, not enough emphasis to deterrent or
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Speaker 1: seriousness of the offense or the nature of punishment that
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Speaker 1: would command respect within the public, and the appellate court
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Speaker 1: will look at the sentence for both procedural and substantive correctness.
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Speaker 1: There is a deferential review standard, and only if there's
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Speaker 1: been an abusive discretion will the appellate court overrule. So
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Speaker 1: there's just a lot of moving pieces to a sentencing
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Speaker 1: in any case in federal court, but particularly for something
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Speaker 1: like this, there was a significant disagreement between what the
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Speaker 1: defense said was an appropriate sentence and what the government
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Speaker 1: was asking for the fact that she took the time
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Speaker 1: that she did. Suggest to me that she did each
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Speaker 1: in every one of the things that she was required
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Speaker 1: to do, and by that what I mean she she
8:00
Speaker 1: calculated the guidelines, she discussed what the party said, she
8:03
Speaker 1: resolved any disagreements. She analyzed each of the factors under
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Speaker 1: eighteen US Code Section three five five to three. She
8:10
Speaker 1: explained the weight she was giving to each one. I
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Speaker 1: would be surprised if there was a procedural deficiency in
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Speaker 1: what she said. If there is any significant issue on appeal,
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Speaker 1: it might be more on the substantive one whether or
8:24
Speaker 1: not some of the factors that she gave weight to
8:27
Speaker 1: and discussed she gave excessive weight to those factors as
8:31
Speaker 1: opposed to other aspects of the sentencing statute. So that's
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Speaker 1: likely to be an area that will be explored on appeal.
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Speaker 2: As far as appellet arguments, one would be, as you mentioned,
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Speaker 2: abused her discretion by not properly balancing the sentencing factors.
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Speaker 2: And one thing that stood out was that she gave
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Speaker 2: credit to Roskie for having called the police after deciding
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Speaker 2: not to carry out the crime. She told the nine
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Speaker 2: to eleven operators she needed psychiatric help. The judge said,
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Speaker 2: in my seventeen years of experience in federal criminal law
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Speaker 2: in the District of Maryland, as a public defender and
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Speaker 2: as a judge, I have never heard of another criminal
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Speaker 2: defendant doing that. Is that something that kind of determination
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Speaker 2: that the prosecution might use on appeal?
9:19
Speaker 1: Well, one of the things that you have to look
9:24
Speaker 1: at in terms of a proper sentencing under the sentencing
9:29
Speaker 1: regime is was there acceptance of responsibility? And clearly there
9:34
Speaker 1: was acceptance of responsibility. If a person, I mean, if
9:37
Speaker 1: you go to law enforcement and say, hey, I did this,
9:41
Speaker 1: I have mental health problems, I need help. I did this,
9:45
Speaker 1: I'm acknowledging it, and then pled guilty, those are important factors.
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Speaker 1: Oftentimes the defendants don't plead guilty. They make the government
9:53
Speaker 1: go to trial and prove the case. So acceptance of
9:56
Speaker 1: responsibility is clearly an important factor. The fact that Judge
10:01
Speaker 1: Boardman said that in her seventeen years in criminal law
10:04
Speaker 1: in federal court that she had never seen another defendant
10:08
Speaker 1: do that was essentially tantamount to saying that in her
10:12
Speaker 1: seventeen years of experience, which is profound, that this was
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Speaker 1: not just simply acceptance of responsibility and acknowledgment of guilt,
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Speaker 1: but to a fairly extraordinary extent, And that might explain
10:26
Speaker 1: why it was if that factor weighed heavily on the
10:30
Speaker 1: sentence that she gave, why she valued it and waited
10:34
Speaker 1: it so much. If the kind of acceptance of responsibility
10:38
Speaker 1: is hew half hearted. You know, if somebody says, well,
10:41
Speaker 1: I'm sorry that you didn't like the fact that this
10:42
Speaker 1: clim was committed, that's not a sincere apology. If somebody
10:47
Speaker 1: doesn't plead guilty until after the government has had to
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Speaker 1: respond to motions to dismiss, and after they filed emotion
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Speaker 1: to suppress and it's been a hearing, and this hearing
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Speaker 1: has been overruled, then the defend and that circumstances waited
11:04
Speaker 1: until every effort they could to try to knock out
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Speaker 1: the crime was unsuccessful, and then and only then pled guilty.
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Speaker 1: You might characterize that as begrudgingly pleading guilty. And if
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Speaker 1: she believed that this person was one of the most
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Speaker 1: sincere in their acceptance of responsibility and did the most
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Speaker 1: to not put the government to a lengthy investigation and
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Speaker 1: prosecution and motions practice and all of that, then that
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Speaker 1: might be something that she would comment on in order
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Speaker 1: to explain why she gave that factor the weight that
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Speaker 1: she did in deciding her sentence.
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Speaker 2: Coming up next, I'll continue this conversation with Judge Paul Grimm.
11:48
Speaker 2: We'll discuss the rise in threats to federal judges and
11:52
Speaker 2: the deterrent effect of sentences. You're listening to Bloomberg Marilyn.
11:58
Speaker 2: Federal judge Deborah Boardman sentenced the would be assassin of
12:03
Speaker 2: Supreme Court Justice Brett Kavanaugh to just over eight years
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Speaker 2: in prison. Sophie Roski, charged as Nicholas John Roski, was
12:12
Speaker 2: arrested near Cavanaugh's Maryland home in twenty twenty two after
12:17
Speaker 2: the leak of a draft opinion of the Supreme Court's
12:19
Speaker 2: opinion overturning the constitutional right to abortion. During sentencing, Boardman
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Speaker 2: gave Roski credit for having called police after deciding not
12:29
Speaker 2: to carry out the crime, saying that otherwise authorities may
12:33
Speaker 2: have never known about the plot. Conservatives have seized on
12:38
Speaker 2: questions that the judge asked about treatment options for Roski
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Speaker 2: in a male federal penitentiary as she's a transgender woman.
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Speaker 2: I've been talking to former Maryland judge Paul Grimm, a
12:49
Speaker 2: professor at Duke Law School. Threats against federal judges, as
12:54
Speaker 2: you mentioned, have risen dramatically, with this year on track
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Speaker 2: to become a record uar for such threats, and the
13:02
Speaker 2: government here argued that a harsh sentence was necessary to
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Speaker 2: deter further threats or attacks against judges or other public officials.
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Speaker 2: What role does the impact of a sentence beyond the
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Speaker 2: defendant have in a sentencing.
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Speaker 1: That's a great question. You know, the people who study
13:22
Speaker 1: criminal law, there's enough writing that if you stack them
13:26
Speaker 1: all the articles and the books one on top of another,
13:30
Speaker 1: would probably equal a pretty good sized skyscraper. You know.
13:35
Speaker 1: The theory of criminal sentencing that goes back decades and
13:40
Speaker 1: decades and decades is that what do you give a
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Speaker 1: criminal sentence to do? And there are multiple theories. One
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Speaker 1: is you could give a sentence that will deter that
13:50
Speaker 1: particular defendant and other similar defendants from committing crimes of
13:56
Speaker 1: that nature in the future. One of it is to rebuild.
14:00
Speaker 1: Take the defendant, you sentenced them so that they have
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Speaker 1: a period of imprisonment, and then you put things in
14:06
Speaker 1: place to make sure that when they finished that that
14:08
Speaker 1: they have the skills and the likely avenue to succeed
14:12
Speaker 1: and be law abiding. That's certainly in the public interest.
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Speaker 1: And then another one is is that you're just doing
14:17
Speaker 1: it to punish for retribution. So they are competing theories.
14:22
Speaker 1: Some people say, well, no, it shouldn't be this theory,
14:24
Speaker 1: it should be that theory. But there's a lot of
14:27
Speaker 1: debate about whether or not specific deterrence and general deterrence
14:32
Speaker 1: actually are effective in doing that. So let me give
14:35
Speaker 1: you an example. If you have a crime that was
14:38
Speaker 1: committed in the heat of passion and this person's anger
14:43
Speaker 1: or hatred was inflamed and then they did it, there's
14:48
Speaker 1: a lot of research that suggests that the deterrence is
14:52
Speaker 1: not that great because if you're you know, if you're reasoning,
14:55
Speaker 1: you know the idea of that, well, you know, if
14:58
Speaker 1: I send this email threatening this judge, judge, maybe I'm
15:01
Speaker 1: going to get a thirty year sentence, so I won't
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Speaker 1: do it. That's the theory. But why do people send
15:06
Speaker 1: those emails? And one of the reasons why there's so
15:09
Speaker 1: many threats against judges is that for the last ten
15:12
Speaker 1: years at least, and specifically in the last ten months,
15:17
Speaker 1: there have been unprecedented amounts of threats against judges and
15:24
Speaker 1: the Martial Service. I think the last data that I
15:26
Speaker 1: saw was that as of September, there were over five
15:29
Speaker 1: hundred credible threats that the Marshall Service found against federal judges,
15:34
Speaker 1: and that somehow more than three hundred judges federal judges
15:37
Speaker 1: have been threatened. You know, they're only about seven hundred
15:41
Speaker 1: federal judges in the entire judiciary, so three hundred have
15:44
Speaker 1: been threatened. Then that's almost half of the sitting judges
15:47
Speaker 1: have been threatened. Then you go back and say, well,
15:50
Speaker 1: who's doing the threats? And when you see the kind
15:53
Speaker 1: of language that political figures and commentators have been using,
15:58
Speaker 1: the kind of language that they are accusing judges who
16:01
Speaker 1: are just simply trying to do their job of being
16:04
Speaker 1: traders or radical or extreme or unpatriotic or treason This
16:12
Speaker 1: if you look at footnote two of the opinion issued
16:15
Speaker 1: by the US district judge who dismissed the government's lawsuit
16:19
Speaker 1: against all the judges of the U S District Court
16:21
Speaker 1: for the District of Maryland. In that the judge said,
16:26
Speaker 1: you know, in the last few months, since the beginning
16:29
Speaker 1: of the year, either public officials or representatives of public
16:33
Speaker 1: officials have accused federal judges of the following and listed
16:37
Speaker 1: about seven or eight of very extreme language used to
16:41
Speaker 1: describe federal judges and in very extreme ways, and found
16:47
Speaker 1: that it was essentially a concerted effort on the part
16:49
Speaker 1: of the administration to do that. That's a finding of
16:51
Speaker 1: a federal judge in an actual case, and that was
16:55
Speaker 1: a judge appointed by a Republican president. So what I'm
16:59
Speaker 1: saying is is that if the government as an entity
17:04
Speaker 1: is concerned about preventing threats against judges, and you're trying
17:08
Speaker 1: to find the most effective way of doing that, then
17:11
Speaker 1: you know, reasonable minds can disagree about whether having one
17:15
Speaker 1: thirty year sentence for a person with mental health who
17:19
Speaker 1: has no significant prior record of criminal activity is certainly
17:24
Speaker 1: violent activity with mental health issues, whether that's going to
17:27
Speaker 1: deter or whether perhaps the administration is should stop making
17:32
Speaker 1: these personal, extraordinarily emotional attacks against judges if they disagree
17:38
Speaker 1: with the judges' rulings, which is going to be more
17:40
Speaker 1: effective in the long run. Well, you know, some people
17:44
Speaker 1: would say you need a belt and suspenders, do them both.
17:46
Speaker 1: But the Department of Justice was serious about deterring threats
17:50
Speaker 1: against federal judges, then they would encourage the spokespeople within
17:55
Speaker 1: the Department of Justice, as well as others within the government,
17:59
Speaker 1: to stop using the kind of intemperate, incendiary language that
18:03
Speaker 1: has been used repeatedly in the last ten months to
18:08
Speaker 1: vilify and intimidate federal judges.
18:11
Speaker 2: Judges have a lot of discretion in sentencing. So what
18:15
Speaker 2: does it take for a federal appellate court to reverse
18:19
Speaker 2: a judge's sentencing decision. I know, the Fourth Circuit did
18:23
Speaker 2: vacate a seventeen day time serve sentence that Judge Brinckema
18:29
Speaker 2: handed down. Now, that was a difference between a seventeen
18:32
Speaker 2: day time served sentence and the guidelines that call for
18:36
Speaker 2: sixteen years to nineteen years. And this case will also
18:40
Speaker 2: be decided by the Fourth Circuit. I mean, is it
18:43
Speaker 2: unusual to have a sentence reversed?
18:46
Speaker 1: Well, let me put it this way, It's not unusual
18:49
Speaker 1: the appellate court if they do the two step analysis
18:52
Speaker 1: procedural and substantive, and they find that there was a
18:55
Speaker 1: failure in either one or the other. You know, if
18:58
Speaker 1: it's a procedural defect, then of course the judge didn't
19:01
Speaker 1: do what was required. If the judge does do all
19:03
Speaker 1: this required, but then the pell Court feels substantively that
19:06
Speaker 1: the judge gave too much credit on one factor but
19:09
Speaker 1: not another. You know that obviously in the one that
19:12
Speaker 1: you made reference to with Judge Brikhama. Okay, so sixteen
19:16
Speaker 1: to nineteen and a half was the guidelines recommendation, and
19:19
Speaker 1: she gave seventeen days time served, and the fourth cicket
19:23
Speaker 1: said that was an abusive discretion. She resentenced and I
19:27
Speaker 1: think the re sentence was to like three years. Yeah,
19:30
Speaker 1: still a significant departure below the you know, sixteen to
19:35
Speaker 1: nineteen year And remember these are guidelines. You know, they're
19:38
Speaker 1: not mandatory, and you had a United States Supreme Court
19:42
Speaker 1: say that if the guidelines were interpreted as mandatory, that
19:44
Speaker 1: there may be a separation of powers, violation of the Constitution,
19:48
Speaker 1: and in order to preserve the structure of the sentencing guidelines,
19:52
Speaker 1: they should be interpreted as discretionary. Discretion has to be
19:56
Speaker 1: used in a way that's not abusive. But you know,
19:59
Speaker 1: Congress has a if they wanted to say that making
20:02
Speaker 1: a threat against a federal judge was punishable by a
20:06
Speaker 1: mandatory sentence of fifteen to twenty years, then they could
20:11
Speaker 1: certainly do that Congress has not done that, and so
20:14
Speaker 1: the way in which that sentencing of thirty years to
20:17
Speaker 1: life came out was a function of guidelines and certain
20:20
Speaker 1: factors in that. And you know, even in the after
20:24
Speaker 1: a reversal, it doesn't mean that the judge lacks the
20:27
Speaker 1: discretion to be able to depart below what the guidelines
20:30
Speaker 1: recommendations are if they believe that a guideline sentence would
20:34
Speaker 1: be more than what's sufficient but no more than necessary
20:38
Speaker 1: to accomplish the overall goals of federal sentencing, the appellate
20:42
Speaker 1: court will be mindful of the you know, the nature
20:47
Speaker 1: of this. It's not insignificant that Supreme Court justice was
20:51
Speaker 1: the one threatened, but you know, child court judges are
20:55
Speaker 1: getting threatened constantly, and I would say, how many of
20:58
Speaker 1: those five hundred plus threats are against Supreme Court justices
21:01
Speaker 1: as opposed to trial judges. There's just an extraordinary large
21:05
Speaker 1: number of these threats coming down the pike with language
21:08
Speaker 1: that is so intemperate from people who are in high
21:11
Speaker 1: positions in government, who have traditionally had more moderation in
21:15
Speaker 1: the way in which they discussed this. So there's a
21:17
Speaker 1: lot of interest in this. The panel that gets it will,
21:20
Speaker 1: I'm sure do a very thorough job of going through it.
21:23
Speaker 1: I can tell you this, there will be plenty of
21:26
Speaker 1: appellate briefing by both the defense and the government, and
21:30
Speaker 1: there may even be anekas briefs by various groups or
21:33
Speaker 1: entities that think that they have an insight that would
21:36
Speaker 1: help the court in deciding the appeal. You're right, this
21:39
Speaker 1: is a high profile case, and I suspect that George
21:42
Speaker 1: Boardman was aware that it was high profile from the
21:45
Speaker 1: get go, and that's probably why she was as careful
21:47
Speaker 1: as she was in her Roally.
21:50
Speaker 2: This will be a closely watched appeal. Thank you so much,
21:53
Speaker 2: Judge grim that's former federal judge Paul Grimm of Duke
21:57
Speaker 2: Law School, coming up next on the Bloomberg Law Show.
22:01
Speaker 2: Pets are treated like children in divorces in New York,
22:05
Speaker 2: but not so in other areas of the law. I'm
22:08
Speaker 2: June Grosso. When you're listening to Bloomberg, you may think
22:13
Speaker 2: of your dog or other pets as a cherished member
22:16
Speaker 2: of the family. After all, they often have designer clothes,
22:20
Speaker 2: special meals delivered, and toys that any kid would love.
22:25
Speaker 2: But even though New York law has come a long
22:27
Speaker 2: way in recognizing pets as part of the family. When
22:30
Speaker 2: there's a divorce or an accident, they're still treated as
22:34
Speaker 2: property in the family will my guest is Suzanne, though
22:38
Speaker 2: a trust and a states lawyer. In most states, how
22:42
Speaker 2: are pets treated. Are they treated as personal property or
22:47
Speaker 2: something else?
22:48
Speaker 4: For a long standing principles, pets have been treated as
22:51
Speaker 4: some form of personal property, and certainly New York pets
22:55
Speaker 4: are treated as tangible personal property. So I'm an a
22:57
Speaker 4: state's lawyer. I oftentimes special provisions for pets, but they're
23:01
Speaker 4: within the article that's generally covered tangible personal property that
23:06
Speaker 4: covers things like your furniture or valuable artwork or antiques.
23:09
Speaker 4: And I definitely do have clients to take offense to that.
23:11
Speaker 4: But unfortunately, in New York, pets are personal property like
23:16
Speaker 4: you're furnishings. And that is the trend in most states
23:19
Speaker 4: is seeing pets as a form of personal property. But
23:22
Speaker 4: there's definitely aspects of law where that is changing. But
23:27
Speaker 4: it's changing in different aspects of state law, as opposed
23:30
Speaker 4: to a general change in the standing of pets in
23:34
Speaker 4: every aspect of state law. It's coming in patchwork sections
23:37
Speaker 4: of different states laws.
23:38
Speaker 2: Susan tell Us about this landmark New York Supreme Court
23:42
Speaker 2: case that established that pet owners can recover emotional damages
23:48
Speaker 2: for the death of their pets as if they were
23:51
Speaker 2: part of their human family, but in certain limited circumstances.
23:55
Speaker 4: A woman and her son were walking the sun's dog
23:58
Speaker 4: in a Neighbouringham, Brooklyn. They got to an intersection that
24:01
Speaker 4: contained her crosswalk and a stop sign, and the mom
24:06
Speaker 4: was actually holding the leash. So the mom is holding
24:09
Speaker 4: the leash, steps into the crosswalk, looks both sides, doesn't
24:13
Speaker 4: see anyone coming, steps into the crosswalk. Her adult son
24:17
Speaker 4: is next to her, but she's holding the leash. They
24:19
Speaker 4: get more than halfway through the crosswalk when a vehicle
24:24
Speaker 4: crosses the stop sign without stopping, doesn't turn his turn
24:28
Speaker 4: signal on and turns directly into them, and the mom
24:33
Speaker 4: sees the car coming has enough time to at least
24:36
Speaker 4: turn around and attempt to get back to the sidewalk,
24:39
Speaker 4: but unfortunately, the dog is struck and killed by the
24:43
Speaker 4: driver of the truck. So then a civil lawsuit, the
24:46
Speaker 4: mother sued the driver of the truck for civil damages,
24:51
Speaker 4: and her claims were for compensation because the dog was killed,
24:54
Speaker 4: for the cost of the dog and for veterinary care.
24:58
Speaker 4: But also the more interesting claim was she claimed the
25:01
Speaker 4: mom claimed emotional damages for negcellent infliction of emotional distress
25:07
Speaker 4: because she suffered having to watch her son's dog essentially
25:11
Speaker 4: be negligently murdered in front of her. And the son
25:14
Speaker 4: also sued for negilent infliction of emotional distress because even
25:17
Speaker 4: though he wasn't holding the leash, he also had to
25:20
Speaker 4: see his dog be killed. So there is so not
25:25
Speaker 4: just for monetary damages for the dog's death builds, but
25:28
Speaker 4: also for the emotional damages of having to bear witness
25:31
Speaker 4: to the dog suffering.
25:33
Speaker 2: So does that case where emotional damages for the pet
25:38
Speaker 2: owner in certain circumstances are recognized, does that change anything
25:42
Speaker 2: else or is it just as far as those particular circumstances.
25:47
Speaker 4: Very limited holding and it only applies to torque cases
25:51
Speaker 4: where there's a civil claim for emotional damages relating to
25:55
Speaker 4: the death of a pet. And the holding of the
25:57
Speaker 4: court was very aware that this was a significant holding
26:01
Speaker 4: and that it would be cited by other states and
26:04
Speaker 4: potentially used in New York for the purposes, so the
26:07
Speaker 4: court made it only applicable and very very very limited circumstances.
26:13
Speaker 4: I think that was a reflection of realizing that it
26:16
Speaker 4: was changing past precedent and also not wanting to be
26:19
Speaker 4: overturned on appeal. And also there was a lot, a
26:22
Speaker 4: lot of briefs filed by different pet organizations, some for
26:26
Speaker 4: the pet owner and some actually for the defendant, and
26:28
Speaker 4: some organizations you wouldn't have expected to be filing and
26:31
Speaker 4: for the defendant. So the judge in this case was
26:34
Speaker 4: trying to weigh all these different concerns, including public policy concerns,
26:38
Speaker 4: and that led to this very narrow holding.
26:41
Speaker 2: Which organizations were against the pet owner recovering damages.
26:45
Speaker 4: So the organizations against the pet owner recovering was actually
26:49
Speaker 4: the American Chemical Club, the New York State Veterinary Medical Society,
26:53
Speaker 4: the Animal Health Instituted, the American Veterinary Medical Association, the
26:57
Speaker 4: American Animal Hospital Association, and the American Pet Pet Products Association,
27:03
Speaker 4: and the Pet Industry Joint Advisory Council. Because the concern
27:07
Speaker 4: expressed among those different organizations was that a holding in
27:11
Speaker 4: favor of the pet owner would lead to increased costs
27:15
Speaker 4: for that care or pet products, which would lead pen
27:19
Speaker 4: owners not to get services for pets and lead to
27:23
Speaker 4: increased that bills or pet insurance costs. So now that's
27:28
Speaker 4: often been a concern even when pet trust were first
27:32
Speaker 4: or first on the stage, and New York's pet trust
27:35
Speaker 4: statue did not actually lead to any of those things.
27:37
Speaker 2: So before we get to pet trusts, let's talk about
27:41
Speaker 2: divorce because you often hear about couples fighting over who
27:45
Speaker 2: gets the dog or the cat or the bird. So
27:49
Speaker 2: what's the rule about who gets the pet in a
27:52
Speaker 2: divorce in New York.
27:54
Speaker 4: That's a great question because New York has a new
27:56
Speaker 4: statue that was an acted in twenty twenty one that
27:58
Speaker 4: says a judge in a warning costoy of the family
28:01
Speaker 4: pet can actually take into account the best interests of
28:04
Speaker 4: the pet, just like an awarding custody of a child,
28:07
Speaker 4: the judge takes into account the best interests of the child.
28:10
Speaker 4: And in the leading case in this area, the judge
28:12
Speaker 4: actually said pets are just like children for this purpose,
28:16
Speaker 4: and that's a significant statement, and the judge and the
28:19
Speaker 4: Diblas holding actually leaned on that statement in coming to
28:22
Speaker 4: this holding. So you see how the cases are evolving.
28:26
Speaker 4: And the judge in Dublas actually said the law needs
28:29
Speaker 4: to evolve with the treatment of pets, and the Dablas
28:32
Speaker 4: judge cited statistics showing the growing importance of pets in
28:37
Speaker 4: our life, like how many more households today own pets
28:39
Speaker 4: compared to the past. But going back to divorce law,
28:43
Speaker 4: so now in New York divorce cases, when there's a
28:46
Speaker 4: pet involved in awarding coustody of the pet, you have
28:49
Speaker 4: to consider the pets best interest just like you would
28:51
Speaker 4: a child. And there's other states that have similar statutes,
28:54
Speaker 4: like Alaska has a similar statute in custody cases. Actually,
29:00
Speaker 4: from Law Commission is taking this up and it's taking
29:03
Speaker 4: comments to decide whether to draft uniform legislation on awarding
29:09
Speaker 4: possession and custody of pets and family disputes. So that's
29:13
Speaker 4: how important a concern it is that even the Uniform
29:15
Speaker 4: Law Commission is considering taking it up right now.
29:18
Speaker 2: So if it's considered in divorces, is it considered in
29:23
Speaker 2: a state after a person dies.
29:25
Speaker 4: That's so interesting to me because I see so many
29:27
Speaker 4: parallels as I've been practicing trust in states for over
29:30
Speaker 4: twenty years now, and there's so many parallels between death
29:32
Speaker 4: and divorce. I mean, there's significant life milestones. And even
29:36
Speaker 4: though when I draft a will or a trust that
29:39
Speaker 4: essentially serves as a will, I don't contemplate explicitly constantly divorced.
29:44
Speaker 4: But when I'm representing someone who's been divorced, I often
29:46
Speaker 4: have to tie into a prenuptial or post natural agreement
29:49
Speaker 4: certain contractual obligations. But even when I do a trust,
29:52
Speaker 4: I say, well, I'll leave this mentor's spouse if she's
29:55
Speaker 4: still my spouse at my death, and if she's not,
29:58
Speaker 4: then property goes a certain way. So the two events
30:01
Speaker 4: definitely are related. And as I was reading the cases
30:05
Speaker 4: about whether a pet is property and the Dubla's case
30:08
Speaker 4: is citing back to the divorce cases, you see similar
30:11
Speaker 4: concerns about do you consider the pet's best interests or
30:13
Speaker 4: do you consider the pet owner's best interests? Do you
30:15
Speaker 4: consider the child's best interests? Who might the miner might
30:18
Speaker 4: be the main custodian of a sense of the pet?
30:21
Speaker 4: Do you consider the family relationships? Is paramount all these
30:24
Speaker 4: competing concerns, But those are the concerns when a pet
30:26
Speaker 4: owner dies too.
30:28
Speaker 2: So is the law as far as wills the same
30:31
Speaker 2: as the law as far as divorce. Where pets are concerned.
30:36
Speaker 4: It's very different. So a pet owner has very little
30:40
Speaker 4: options in terms of providing for her pet or his
30:43
Speaker 4: pet when he or she dies. The last piece of
30:46
Speaker 4: legislation specifically addressing this was the pet trust. You recommended
30:49
Speaker 4: the state's Powers and Trust law to provide for a
30:52
Speaker 4: pet trust, where just like you can create a trust
30:56
Speaker 4: for your child and say, I want to set aside
30:58
Speaker 4: a certain pool of money that earmarked as just being
31:01
Speaker 4: for my child after I die, and I appoint a
31:04
Speaker 4: trustee to manage that pool of money and decide if
31:08
Speaker 4: and when my child will receive distributions from that trust,
31:12
Speaker 4: or the trust may pay expenses on behalf of my child.
31:16
Speaker 4: Now you can do the same thing. You say, I'm
31:17
Speaker 4: going to set aside one hundred thousand dollars or two
31:20
Speaker 4: hundred thousand dollars in an account just for my pet,
31:23
Speaker 4: and then I name a trustee who can make distributions
31:26
Speaker 4: out of that pool of money just for my pet.
31:29
Speaker 4: Pet trust.
31:30
Speaker 2: So, in other words, if someone comes to you and
31:33
Speaker 2: wants to draw up a will and wants to take
31:35
Speaker 2: care of his or her pet, you say we have
31:38
Speaker 2: to do a trust.
31:40
Speaker 4: Is that that we don't often say it because to
31:42
Speaker 4: do a pet trust, in my mind, to do any
31:44
Speaker 4: kind of trust, you need a certain amount of money,
31:47
Speaker 4: and in my mind the minimums do a trust is
31:49
Speaker 4: around two hundred thousand dollars because I keep in mind
31:53
Speaker 4: the trust for a pet or a child doesn't come
31:55
Speaker 4: into being until after you, the person who wrote that
31:57
Speaker 4: the will is deceased to die. That trust is a
32:01
Speaker 4: separate income tax paying entity, so that means the trustee
32:04
Speaker 4: has to found income tax returns every year. The trustee
32:07
Speaker 4: has to hire a financial advisor to invest the money
32:10
Speaker 4: for that trust to generate interests and dive an end income.
32:13
Speaker 4: So there's a lot of compliance that goes along with
32:15
Speaker 4: the formal trust arrangement, and there's people taking fees. The
32:18
Speaker 4: accountant who prepares income tax return is charging annual fee,
32:22
Speaker 4: the investment advisor who's investing it is charging annual fee.
32:26
Speaker 4: The trustee usually takes a commission for this work that
32:28
Speaker 4: he's doing. So to actually prepare a trust, you need
32:32
Speaker 4: a decent amount of money to justify those annual fees,
32:36
Speaker 4: which in my mind is a minimum two hundred thousand
32:38
Speaker 4: to two hundred and fifty thousand, and a lot of
32:40
Speaker 4: clients just don't have. They're envisioning leaving maybe ten twenty
32:45
Speaker 4: fifty thousand dollars for their pets. They're not envisioning two
32:48
Speaker 4: hundred thousand dollars or joining fifty thousand dollars. A yeah, yeah,
32:52
Speaker 4: So a pet trust, in my mind, is for my
32:55
Speaker 4: high net worth clients. It's not for your average upper
33:00
Speaker 4: middle class families who are just seeking to make sure
33:03
Speaker 4: that a pet is provided for and that the level
33:05
Speaker 4: of care they provided will be provided for when they die.
33:08
Speaker 4: Sale trust is not that.
33:09
Speaker 2: So what do you do for your clients or what
33:12
Speaker 2: can you do for your clients that don't have that
33:15
Speaker 2: money to make a pet trust?
33:18
Speaker 4: So the alternative that I do for a lot of
33:19
Speaker 4: my clients is honestly, it's very rare that I draft
33:21
Speaker 4: a pet trust, but I represent a lot of behind
33:23
Speaker 4: networth individuals.
33:24
Speaker 1: Is just a.
33:25
Speaker 4: Simple naming of a pet caretaker, which is not a
33:28
Speaker 4: fiduciary role. I mean, the trustee of a pet trust
33:31
Speaker 4: is a fiduciary. That's the benefit of having a pet
33:34
Speaker 4: trust statute. If the trustee of the pet trust of
33:37
Speaker 4: sconds with the money or takes a distribution out and
33:40
Speaker 4: buys him or herself a new car. He or she
33:43
Speaker 4: can be held up in court and asked to put
33:46
Speaker 4: that money back into the trust can be personally surcharged.
33:50
Speaker 4: That's the benefit of a trustee. It's a fiduciary obligation
33:53
Speaker 4: that carries legal risk and legal obligation.
33:56
Speaker 1: What I do.
33:57
Speaker 4: Instead is I name an informal caretaker for the pets
34:00
Speaker 4: that doesn't carry any of that enforcement that comes along
34:03
Speaker 4: with the true fiduciary. I have a dog, Norris, and
34:06
Speaker 4: I say, okay, I'm going to give I have two dogs,
34:07
Speaker 4: one of them is Norris. I'm going to give Norris
34:10
Speaker 4: to my friend Michael. He's going to be the caretaker,
34:13
Speaker 4: Norris's caretaker, and I'm going to say that as long
34:15
Speaker 4: as Michael agrees take custy of Norris after my death,
34:18
Speaker 4: I'll give Michael twenty thousand dollars that I wish for
34:21
Speaker 4: him to use towards Norris's care. But that's a wish
34:24
Speaker 4: right If I die and Michael takes Norris and then
34:28
Speaker 4: instead of using the ten thousand dollars to maintain Norris's
34:31
Speaker 4: Farmer's Dog subscription and the organic treats that I buy
34:34
Speaker 4: him and the private vet, they take him to that
34:37
Speaker 4: the dog insurance I maintained only covers half of the bills.
34:40
Speaker 4: Michael might take Norris and buy some cheap food and
34:44
Speaker 4: use a free clinic and not maintain anywhere near the
34:46
Speaker 4: level of care. That was the purpose of that twenty
34:49
Speaker 4: thousand dollars, and there's no way of stopping that.
34:52
Speaker 2: What would be a solution to this disparate treatment of
34:56
Speaker 2: pets for one reason and not for another?
34:59
Speaker 4: Of course, there could a global standard of treating pets's
35:03
Speaker 4: humans and then saying every law has been interpret in
35:07
Speaker 4: under that lens. But I don't see that. So I
35:09
Speaker 4: see a continuation of piecemeal legislation. And for the trust
35:12
Speaker 4: and State's purpose, I see an amendment to New York's law,
35:16
Speaker 4: much like we have the Uniform Transferred to Miners Act.
35:20
Speaker 4: I see an amendment like that, some type of transfer
35:23
Speaker 4: to Pets Act, so that for individuals who don't have
35:27
Speaker 4: two hundred, two hundred and fifty thousand dollars to put
35:29
Speaker 4: in a pet trust, they can put in a pet
35:31
Speaker 4: custodial account. Because custodians, when you put say fifty thousand dollars,
35:36
Speaker 4: you go to city Bank, you say, I want to
35:38
Speaker 4: put fifty thousand dollars in a custodial account for my
35:40
Speaker 4: minor child when they're fourteen, and it stays in that
35:42
Speaker 4: coustoleic account until they're twenty one. You similarly don't have
35:46
Speaker 4: two hundred and fifty thousand to put a trust for
35:48
Speaker 4: your child. This is a less expensive alternative that banks
35:51
Speaker 4: offer to trust for your children. I would like to
35:53
Speaker 4: see the same thing for a pet, for a dog
35:56
Speaker 4: or a cat, and that way you can name a
35:58
Speaker 4: custodian and the custodian is bound to the same fiduciary
36:03
Speaker 4: role that a trustee is. So I'd like to see
36:06
Speaker 4: legislation that creates a custodial account for pets where the
36:09
Speaker 4: custodian can be taken to court and bound to return
36:13
Speaker 4: any money that is not actually used for the pets
36:15
Speaker 4: care and support in the same manner that you expressed
36:19
Speaker 4: in your letter of intent you wanted the pets to
36:22
Speaker 4: be cared for. I see the arguments coming that legislation
36:26
Speaker 4: like this can end up increase in liability. I see
36:30
Speaker 4: the same organizations that I mentioned objecting saying this can
36:33
Speaker 4: cause increases and services, and but that argument never bears out.
36:39
Speaker 4: We've seen it agose under which the custodian can be
36:41
Speaker 4: held legally accountable. We've never seen those increases in pet costs.
36:46
Speaker 2: Thanks so much, Suzanne. That's trust in a state's attorney,
36:50
Speaker 2: Susanne Thaw. And that's it for this edition of The
36:52
Speaker 2: Bloomberg Law Show. Remember you can always get the latest
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