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Lindsay Clancy Jury Deadlocked & California Slayer Law · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:08
Speaker 2: More drama in the Lindsay Clancy trial. After about 36
0:13
Speaker 2: hours of deliberations over six days, the jury has been
0:17
Speaker 2: unable to reach a unanimous verdict as to whether Clancy
0:21
Speaker 2: is legally responsible for strangling her three children. The jury,
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Speaker 2: which has sent out two notes since Tuesday saying they're deadlocked,
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Speaker 2: sent out a note this afternoon saying one juror was
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Speaker 2: refusing to listen to the law on reasonable doubt. Following
0:37
Speaker 2: a heated discussion with the prosecutor and defense attorney at
0:40
Speaker 2: the bench and questioning of each juror individually, Judge William
0:45
Speaker 2: Sullivan re-read the jury instruction on the definition of reasonable
0:49
Speaker 2: doubt and sent the jury back to deliberate. But the
0:53
Speaker 2: defense attorney asked the judge to remove that holdout juror.
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Speaker 3: And if we come back here in a half an
1:00
Speaker 3: hour with a mistrial because of a juror that has
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Speaker 3: just spurned the instructions of this court, it's a shame.
1:07
Speaker 3: It's a real shame. And that's why I object to
1:10
Speaker 3: the court's ruling. I request that we have further inquiry.
1:14
Speaker 3: I request that my motion is to remove this juror
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Speaker 3: that refuses to listen to your instruction on reasonable development.
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Speaker 2: The judge refused, saying the discharge of a deliberating juror
1:25
Speaker 2: is a sensitive undertaking.
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Speaker 1: I don't feel that it is proper for me to
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Speaker 1: side with one side or the other of the deliberations.
1:35
Speaker 1: I don't feel it's appropriate for me to say I
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Speaker 1: agree with one juror or the 11.
1:42
Speaker 2: The judge sent the deadlocked jury home at about 4 p.m.
1:46
Speaker 2: and told them to return tomorrow morning at 9. Joining
1:50
Speaker 2: me is former federal prosecutor Robert Mintz, a partner at
1:53
Speaker 2: McCarter & English. Bob, you had this unusual scene where
1:56
Speaker 2: the judge had both attorneys and Lindsay Clancy at the
2:01
Speaker 2: bench and called each juror up individually, swore them in,
2:07
Speaker 2: asked a question, and then allowed them to return to
2:10
Speaker 2: the jury. Why do you think he's calling them each
2:13
Speaker 2: to the bench and questioning them individually? Do you think
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Speaker 2: he's trying to find out if they all agree with
2:19
Speaker 2: what was said in the note? Well, it is.
2:22
Speaker 4: Unusual for the judge to be questioning jurors individually. Typically,
2:27
Speaker 4: that will happen in a circumstance where there's some allegation
2:31
Speaker 4: that jurors may be, or at least one juror may be,
2:36
Speaker 4: using information in trying to reach a verdict that was
2:40
Speaker 4: not presented during the trial. In other words, you have
2:43
Speaker 4: a situation where a juror may have access to outside
2:46
Speaker 4: information by reading newspapers or looking at their cell phone.
2:50
Speaker 4: and in some way infecting the jury deliberations with evidence
2:54
Speaker 4: that was not presented at trial. Here, that's not what's
2:57
Speaker 4: going on. It's really a question, and I think the
2:59
Speaker 4: defense lawyer has been smart to try to really focus
3:03
Speaker 4: the issue on whether we have a juror who not
3:06
Speaker 4: simply disagrees with the other jurors based on the evidence,
3:10
Speaker 4: but is absolutely refusing to follow the judge's instructions. And
3:16
Speaker 4: if that's the case, then the defense lawyer is arguing
3:19
Speaker 4: that that's a basis to remove that juror. And I
3:22
Speaker 4: think he would like the judge to focus on that
3:25
Speaker 4: issue more closely and more carefully and at least put
3:28
Speaker 4: that issue more squarely on the record.
3:32
Speaker 2: So, Bob, obviously the defense lawyer thinks that the holdout
3:37
Speaker 2: is a prosecution juror, a juror who wants to find
3:41
Speaker 2: her guilty. I mean, how can he take a chance
3:44
Speaker 2: like that? How does he know that that's the holdout?
3:48
Speaker 4: Well, you don't really know. That's the question. You don't
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Speaker 4: know if somebody's focusing on reasonable doubt. It's because there's
3:54
Speaker 4: one juror. who is refusing to acknowledge that there is
3:59
Speaker 4: reasonable doubt or that there's one juror who is refusing
4:02
Speaker 4: to accept that there is no reasonable doubt here. So
4:05
Speaker 4: it is a bit of a crapshoot. If you're on
4:07
Speaker 4: the defense side, typically you like the idea of jurors
4:11
Speaker 4: focusing on the issue of reasonable doubt. That's something defense
4:15
Speaker 4: lawyers raise all the time because, as you know, It's
4:19
Speaker 4: the prosecution's burden to prove the case beyond a reasonable doubt,
4:24
Speaker 4: and the defense doesn't ultimately have to convince jurors that
4:28
Speaker 4: their client is innocent. They simply have to show that
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Speaker 4: the prosecution failed to meet that burden of proof. in
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Speaker 4: establishing that the defendant is guilty beyond a reasonable doubt.
4:39
Speaker 4: So if that conversation seems to be focusing on the
4:41
Speaker 4: issue of reasonable doubt, most people would assume that it
4:46
Speaker 4: is a jury that is leaning towards an acquittal. But
4:50
Speaker 4: it also could be that they're fighting over one of
4:53
Speaker 4: the many different options that these jurors have. in order
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Speaker 4: to render a verdict here. So we just don't really know. Clearly,
5:01
Speaker 4: the defense lawyer believes that it is a leaning defense verdict.
5:06
Speaker 4: And what he's trying to do is get an acquittal
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Speaker 4: for his client, either not guilty or not guilty by
5:12
Speaker 4: reason of insanity, rather than a hung jury, which, of course,
5:15
Speaker 4: would give the prosecution the opportunity to simply try the
5:18
Speaker 4: case all over again.
5:20
Speaker 2: If the 11 jurors are saying, This one juror is
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Speaker 2: not following the law on reasonable doubt. I mean, reasonable
5:27
Speaker 2: doubt is a fluid and difficult concept. It could be
5:31
Speaker 2: that that one juror just doesn't agree with their view
5:36
Speaker 2: of what reasonable doubt is. How do you knock a
5:39
Speaker 2: juror off in that circumstance?
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Speaker 4: Well, you can't knock a juror off simply because they
5:44
Speaker 4: don't agree with the other jurors and have come to
5:47
Speaker 4: a different conclusion based upon the evidence. What the defense
5:51
Speaker 4: lawyer is trying to argue is that the juror, who
5:55
Speaker 4: is the apparent holdout, is simply refusing to follow the
5:59
Speaker 4: law as it's been explained by the judge. Now, we
6:03
Speaker 4: don't know whether that's the case or not, but I
6:05
Speaker 4: suspect that what the judge was doing by questioning the
6:08
Speaker 4: individual jurors was trying to make that determination. And if
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Speaker 4: the holdout is simply a juror who has a strong
6:16
Speaker 4: conviction and is unwilling to be moved by the views
6:20
Speaker 4: of the other jurors, that's not something that will result
6:24
Speaker 4: in that juror being removed from the jury. It would
6:28
Speaker 4: simply end up as a hung jury if they ultimately
6:30
Speaker 4: couldn't be unanimous. The question here is, is this juror
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Speaker 4: refusing to follow the legal instructions of the judge or
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Speaker 4: simply has a difference of opinion and is unmoved by
6:43
Speaker 4: the opinion of his fellow jurors.
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Speaker 2: So what's the standard to be used for removing a
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Speaker 2: juror during deliberations?
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Speaker 4: Yeah, it's really up to the discretion of the judge
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Speaker 4: in large part, but obviously at this very late stage
6:59
Speaker 4: of the trial, a judge is going to be very
7:02
Speaker 4: reluctant to do that. It sometimes happens earlier on in
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Speaker 4: a case where For various reasons, sometimes a juror becomes
7:09
Speaker 4: ill and can no longer continue to serve. But in
7:12
Speaker 4: this case, at this stage where there are many days
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Speaker 4: into jury deliberations in a trial that lasted over a month,
7:20
Speaker 4: where there were over 300 exhibits presented, multiple witnesses. A
7:24
Speaker 4: case like this to remove a juror at the very
7:27
Speaker 4: end is going to be a tough standard for the
7:30
Speaker 4: judge to meet. And again, it would have to be
7:32
Speaker 4: a circumstance where a juror was more or less telling
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Speaker 4: the judge that they were refusing to follow the instructions
7:39
Speaker 4: of the court. And in that instance, it's possible the
7:42
Speaker 4: judge would remove them on that basis. And that's what
7:45
Speaker 4: the defense is arguing. But so far, the judge is
7:48
Speaker 4: not buying it and has not taken any steps to
7:50
Speaker 4: remove this juror.
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Speaker 2: And if they did remove a juror and put a
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Speaker 2: new juror in, the jury would have to start deliberating
7:57
Speaker 2: from the beginning again, right?
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Speaker 4: That's exactly right. It would delay the verdict because all
8:04
Speaker 4: of the deliberations that have occurred to date would have
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Speaker 4: to start all over again with the new juror being
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Speaker 4: placed in the jury room and being privy to all
8:14
Speaker 4: of the deliberations. You can't simply substitute a juror in
8:18
Speaker 4: at the end and and say that we've already concluded
8:21
Speaker 4: various results and that juror has to simply accept them.
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Speaker 4: So it would delay things, but I think the defense
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Speaker 4: is banking on the possibility that a new juror would
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Speaker 4: go along with what is apparently the majority view of
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Speaker 4: the jurors if they can get this one holdout replaced.
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Speaker 2: So this trial has divided people. I mean, people have
8:45
Speaker 2: strong opinions on both sides. Why do you think that's
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Speaker 2: the case when you have a woman who admittedly killed
8:52
Speaker 2: her three children?
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Speaker 4: Well, it is a case that has really transfixed the nation.
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Speaker 4: The idea of a mother killing her three young children
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Speaker 4: is both appalling and grimly fascinating to people. The question
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Speaker 4: of what would ever drive someone to harm their own
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Speaker 4: children is something that most people really have never had
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Speaker 4: to grapple with and have a difficult time, I think,
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Speaker 4: assimilating as to exactly what would drive somebody to commit
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Speaker 4: that kind of act. And what we see in this
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Speaker 4: case are two very different narratives both compelling in their
9:27
Speaker 4: own right, where you've got the evidence of a woman,
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Speaker 4: according to prosecution, committing this premeditated act where she had
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Speaker 4: told her husband to go out to dinner, to go
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Speaker 4: out to the CVS to pick something up. And according
9:42
Speaker 4: to evidence produced by prosecutors during the trial, she had said,
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Speaker 4: looked at how long it would take for him to
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Speaker 4: come back. She had been with her children during the day,
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Speaker 4: taking them to doctor's appointments. And basically, the prosecution has
9:55
Speaker 4: said that although she may have a mental illness, she
9:59
Speaker 4: certainly knew what was going on and that this was
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Speaker 4: an act of premeditation, and she knew the wrongfulness of
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Speaker 4: her conduct when she committed the crime. This crime, the defense,
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Speaker 4: on the other hand, painting a very different picture and really,
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Speaker 4: I think, trying to put the medical system on trial
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Speaker 4: in a certain sense by saying that their client visited
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Speaker 4: a psychiatrist 14 times, tried 13 different medications. She called
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Speaker 4: a suicide hotline. She went to the emergency room. She
10:27
Speaker 4: tried to enroll in an inpatient program. She confided in
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Speaker 4: her husband that she had these thoughts of harming their children.
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Speaker 4: And basically, they are trying to suggest that she did
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Speaker 4: everything she could to try to prevent this from happening.
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Speaker 4: But ultimately, this illness, this rare condition called postpartum psychosis,
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Speaker 4: caused her to have these hallucinations where she allegedly heard
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Speaker 4: this male voice say, telling her to kill her children.
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Speaker 4: And jurors are really faced with a very daunting task here.
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Speaker 4: It's very difficult to try to sift through these two
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Speaker 4: competing narratives of what's happened here, to try to listen
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Speaker 4: to the testimony, the medical testimony, the pharmaceutical testimony, and
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Speaker 4: the data testimony the heartbreaking reality of what actually happened here,
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Speaker 4: a mother killing her own three young children, and figure
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Speaker 4: out as to whether or not this was a premeditated
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Speaker 4: act and that justice is served by sending this woman
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Speaker 4: to prison for the rest of her life or whether
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Speaker 4: she really is suffering from a severe mental illness and
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Speaker 4: she really committed a crime without knowing right from wrong
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Speaker 4: and that the right result is to send her to
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Speaker 4: a psychiatric institute rather than a prison.
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Speaker 2: In Massachusetts, it's up to the prosecution, not the defense,
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Speaker 2: to prove that the defendant, quote, retained substantial capacity to
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Speaker 2: appreciate the wrongfulness or criminality of their conduct and to
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Speaker 2: conform their conduct to the requirements of the law. Is
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Speaker 2: that a strict or lenient standard compared to other states?
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Speaker 4: Massachusetts actually has one of the less restrictive definitions in
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Speaker 4: of insanity. The defense here is claiming postpartum psychosis, which
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Speaker 4: in every state is treated like any other insanity defense.
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Speaker 4: And in most cases, defendants must prove that they did
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Speaker 4: not understand what they were doing or they did not
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Speaker 4: know what they were doing was wrong. That's the most
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Speaker 4: stringent standard. Other states have slightly less stringent standards. For example,
12:34
Speaker 4: certain states allow that defendants may have known what they
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Speaker 4: were doing was wrong, but couldn't resist the impulse to
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Speaker 4: do it. Another standard allows juries to consider, but for
12:44
Speaker 4: the defendant's mental defect, the crime would not have occurred.
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Speaker 4: And the fourth and probably most lenient one is that
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Speaker 4: the defendant must have been either unable to understand their
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Speaker 4: action or unable to stay within the confines of the law.
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Speaker 4: The interesting thing about the law in Massachusetts is that
12:59
Speaker 4: it never shifts the burden onto the defense. All the
13:02
Speaker 4: other standards in most states shift the burden onto the
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Speaker 4: defense to prove they didn't know what they were doing
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Speaker 4: or that they did not know what they were doing
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Speaker 4: was wrong. But in Massachusetts, the burden remains with the
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Speaker 4: prosecution at all times, which makes it more difficult for
13:18
Speaker 4: prosecutors to overcome this defense. And in Massachusetts, it requires prosecutors,
13:23
Speaker 4: not the defense, to prove that a mentally ill defendant
13:27
Speaker 4: retained the substantial capacity to appreciate the wrongfulness or criminality
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Speaker 4: of their conduct and to conform their conduct to the
13:35
Speaker 4: requirements of the law. So in this case, once that
13:39
Speaker 4: defense is raised by the defense, the burden shifts back
13:43
Speaker 4: to the prosecution to overcome that defense. And in this case,
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Speaker 4: the prosecution has tried to do it, again, by proving
13:50
Speaker 4: that the conduct was premeditated and that Ms. Clancy knew
13:55
Speaker 4: what she was doing. She may have been mentally ill.
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Speaker 4: That's conceded by prosecutors. But the question is not whether
14:03
Speaker 4: she was mentally ill. The standard here is whether or
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Speaker 4: not she knew the wrongfulness and the criminality of her
14:09
Speaker 4: conduct and was unable to conform her conduct to the
14:12
Speaker 4: requirements of the law. Prosecutors here are saying that she did.
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Speaker 2: And no matter what, I mean, even if they find
14:18
Speaker 2: her not guilty by lack of criminal responsibility, that doesn't
14:23
Speaker 2: mean she goes free.
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Speaker 4: Under Massachusetts state law, when a person is found not
14:29
Speaker 4: guilty by lack of criminal responsibility, a court can commit
14:32
Speaker 4: them to a facility after holding a hearing and determining
14:36
Speaker 4: if they are mentally ill and if their release would
14:39
Speaker 4: create a likelihood of serious harm to themselves or to others. Now,
14:44
Speaker 4: what often happens is in that circumstance is that they
14:47
Speaker 4: are committed to a state psychiatric hospital. The initial commitment
14:51
Speaker 4: lasts for six months and it's later renewed on a
14:54
Speaker 4: yearly basis. But there's no maximum number of recommitments. So
14:58
Speaker 4: there have been circumstances where an individual actually spends more
15:02
Speaker 4: time in a state psychiatric hospital by getting a result
15:06
Speaker 4: of not guilty by lack of criminal responsibility than they
15:10
Speaker 4: would have if they were actually found criminally responsible for
15:13
Speaker 4: the conduct.
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Speaker 2: Bob, let's say a mistrial is declared and the prosecution
15:19
Speaker 2: finds out that it was 11 to 1 in favor
15:24
Speaker 2: of finding her not guilty by reason of lack of
15:28
Speaker 2: criminal responsibility. Do you think the prosecutor then tries to
15:32
Speaker 2: make a deal with the defense or because of the
15:35
Speaker 2: high profile nature of this case, tries her again?
15:39
Speaker 4: Well, anytime there's a hung jury, there are usually discussions
15:44
Speaker 4: between the prosecution and the defense about. a possible plea deal.
15:49
Speaker 4: Because if you try the case again, it could wind
15:52
Speaker 4: up in Hungary again, or of course the prosecution could
15:56
Speaker 4: lose or the defense could lose. So it's always a
16:00
Speaker 4: crapshoot when you try the case a second time. And
16:03
Speaker 4: you have to also remember that the defense has a
16:05
Speaker 4: little bit of an advantage on a second trial because
16:08
Speaker 4: they've now had a chance to cross-examine all the prosecution's
16:12
Speaker 4: witnesses and and they know pretty much what prosecutors are
16:15
Speaker 4: going to present unless they change their theory of prosecution,
16:19
Speaker 4: which they really can't do in this case. And so
16:22
Speaker 4: there is an opportunity for the defense when they retry
16:24
Speaker 4: the case, if that would happen, to know what's kind
16:27
Speaker 4: of coming down the road. So there would be some
16:29
Speaker 4: discussions if prosecutors really believe that getting a guilty verdict
16:34
Speaker 4: is going to be difficult, but it really depends on
16:37
Speaker 4: what we learn if there is a hung jury and
16:39
Speaker 4: if those jurors speak publicly and we find out what's
16:42
Speaker 4: going on in the jury room, just how those jurors
16:44
Speaker 4: broke down. And if there was really one lone holdout
16:49
Speaker 4: for a conviction and everybody else was voted in favor
16:53
Speaker 4: of not guilty by reason of insanity, then I think
16:58
Speaker 4: the defense is going to view itself as having a
17:00
Speaker 4: pretty strong hand here and it's going to try to
17:03
Speaker 4: push a pretty hard deal with prosecutors. But I think
17:06
Speaker 4: at the end of the day, the goal of the
17:08
Speaker 4: defense here is to have their client end up in
17:12
Speaker 4: a psychiatric hospital where they believe she will get the
17:15
Speaker 4: kind of mental health assistance that she really needs here.
17:19
Speaker 4: And the goal is to keep her from going to
17:21
Speaker 4: prison with the belief that she didn't commit a crime
17:24
Speaker 4: here because she really didn't know what she was doing
17:26
Speaker 4: when she killed her children.
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Speaker 2: We'll see what happens tomorrow, and perhaps they will come
17:30
Speaker 2: to a decision. Thanks so much, Bob. That's Robert Mintz
17:34
Speaker 2: of McCarter & English. Nick Reiner has pleaded not guilty
17:40
Speaker 2: to murdering his parents, Hollywood director Rob Reiner and Michelle
17:45
Speaker 2: Singer Reiner, and he's trying to get access to the
17:48
Speaker 2: $ 1. 6 million trust fund his parents set up for him
17:52
Speaker 2: so he can hire a private lawyer. However, a professional
17:56
Speaker 2: fiduciary with oversight of the fund has opposed his request,
18:01
Speaker 2: citing a California law known as the Slayer Statute. Joining
18:05
Speaker 2: me is Trusts and Estates litigator Robert Harper, a partner
18:09
Speaker 2: at Farrell Fritz. So, Rob, tell us what's been happening
18:13
Speaker 2: with the Nick Reiner case.
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Speaker 5: So Nick Reiner has obviously been accused of taking his parents' lives,
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Speaker 5: his father being the Hollywood director, Rob Reiner, his mother,
18:24
Speaker 5: Michelle Reiner. And in the wake of their passing, he
18:29
Speaker 5: has sought to gain access to a trust fund that
18:32
Speaker 5: his parents created for his benefit. arguing that he should
18:36
Speaker 5: be allowed to access those funds in order to pay
18:38
Speaker 5: for his criminal defense counsel to defend him in prosecutions
18:43
Speaker 5: concerning his parents' deaths. The trustee of the trust has
18:47
Speaker 5: denied Nick access to those funds on account of the
18:51
Speaker 5: fact that California has a slayer statute. Now, I'm a
18:55
Speaker 5: New York lawyer, of course, and we don't have a
18:58
Speaker 5: slayer statute here in New York, but we do have
19:00
Speaker 5: a slayer rule. And that slayer rule is a similar
19:03
Speaker 5: concept that dates back here in New York to at
19:06
Speaker 5: least 1889, when our highest court here in New York State,
19:10
Speaker 5: the Court of Appeals, rendered a decision called Riggs versus Palmer.
19:15
Speaker 5: And in that case, the Court of Appeals recognized that
19:18
Speaker 5: if you engage in wrongdoing, such as taking someone else's life,
19:23
Speaker 5: the courts here in New York will not permit you
19:26
Speaker 5: to benefit from that wrongdoing. The Slayer Rule here in
19:30
Speaker 5: New York, which is similar to the California Slayer Statute,
19:34
Speaker 5: if it were to apply to Nick Reiner's case, I
19:37
Speaker 5: think would justify the trustee's position not to distribute trust
19:42
Speaker 5: funds or assets to Nick, whether for the purpose of
19:46
Speaker 5: defending himself in a criminal prosecution or for any other purpose.
19:50
Speaker 5: The idea being that if he took his parents' lives,
19:53
Speaker 5: he should not benefit from monies that they set aside
19:57
Speaker 5: for his benefit in trust that they created.
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Speaker 2: The California Slayer statute prevents a person who feloniously and
20:05
Speaker 2: intentionally kills a decedent from inheriting any property, interest, or
20:10
Speaker 2: benefit under a will of the decedent or trust, created
20:13
Speaker 2: by or for the benefit of the decedent. But in
20:16
Speaker 2: this case, he hasn't been convicted yet, so innocent until
20:19
Speaker 2: proven guilty. So why can't he get the funds now?
20:24
Speaker 5: Well, that's the question or the argument that Nick's lawyers
20:27
Speaker 5: have made, that he hasn't been convicted and thus he
20:30
Speaker 5: should have access to the funds. The problem is that
20:33
Speaker 5: the presumption of innocence that oftentimes applies in the criminal
20:36
Speaker 5: context is not necessarily equally applicable in the civil context
20:41
Speaker 5: when we're dealing with the state and trust issues. And
20:44
Speaker 5: so to the extent that the trustee were to distribute
20:47
Speaker 5: monies from the trust for Nick's benefit, such as paying
20:51
Speaker 5: his criminal defense counsel, even before he's convicted, if he's convicted,
20:57
Speaker 5: the fact of the matter is that it's likely that
20:58
Speaker 5: those funds would never be seen again. And the trustee
21:01
Speaker 5: has taken a protective position that even in the absence
21:05
Speaker 5: of a conviction, The funds should not be distributed to
21:07
Speaker 5: Nick until his criminal proceedings are resolved so that if
21:12
Speaker 5: after those criminal proceedings are resolved and if he's convicted,
21:16
Speaker 5: the funds will still be available for his siblings, the
21:19
Speaker 5: people that would take in the event that the California
21:21
Speaker 5: Slayer statute were to apply.
21:25
Speaker 2: There's another wrinkle here in that he's 32. He could
21:29
Speaker 2: have been paid part of the trust fee. when he
21:32
Speaker 2: was 30, and that amounts to about $ 558, 000, according to
21:37
Speaker 2: the trustee. So that would have been due to him
21:40
Speaker 2: when he was 30, so before this incident, before he
21:44
Speaker 2: was accused. So might that part of the trust be
21:49
Speaker 2: awarded to him?
21:50
Speaker 5: I would submit not, right? If somebody is found to
21:53
Speaker 5: have engaged in conduct that triggers in California the Slayer
21:57
Speaker 5: statute or here in New York, for example, the Slayer rule,
22:01
Speaker 5: Whether or not their interest vested before their wrongdoing, the
22:05
Speaker 5: public policy that underlies it, that prevents somebody from profiting
22:09
Speaker 5: from their wrongdoing, from benefiting from their wrongdoing, would apply
22:13
Speaker 5: either way. And so the timing question, while it's a
22:16
Speaker 5: good question of if he was entitled to the funds
22:19
Speaker 5: before he took even a portion of the funds, before
22:22
Speaker 5: he took his parents' lives, if he did that, You know,
22:25
Speaker 5: it strikes me that from a public policy perspective, the
22:28
Speaker 5: Slayer rule, the Slayer statute being based on this notion
22:31
Speaker 5: that one cannot benefit from their wrongdoing would prevent Nick
22:35
Speaker 5: from receiving any of the funds, regardless of whether he
22:39
Speaker 5: was entitled to apportion at age 30 or some other age.
22:43
Speaker 2: Who's going to decide this? Is it a probate judge?
22:46
Speaker 5: Yes, it is. And my understanding is that there was
22:49
Speaker 5: a hearing yesterday. on this issue that has occurred, but
22:52
Speaker 5: that the court has not yet rendered a decision on it.
22:55
Speaker 2: I believe the Menendez brothers were blocked from receiving any
22:59
Speaker 2: part of their parents' multi-million dollar estate because of the
23:04
Speaker 2: California Slayer Rule. Do you know of any cases in
23:07
Speaker 2: New York where it was applied?
23:10
Speaker 5: Of course, of course. There's a really fascinating case, a
23:13
Speaker 5: sad case. And all of these Slayer Rule cases are
23:16
Speaker 5: sad cases. But An especially sad one, Matter of Demiseu,
23:19
Speaker 5: which was a surrogates court Nassau County case that dates
23:23
Speaker 5: back approximately 10 years. In that case, a mother, she
23:28
Speaker 5: took her children's lives, and after being found not responsible
23:33
Speaker 5: from a criminal perspective, not responsible for a crime due
23:36
Speaker 5: to mental disease or mental defect, she then sought an
23:40
Speaker 5: interest in the wrongful death compromise proceeds that arose from
23:45
Speaker 5: her children's death. There were proceeds that were derived from
23:48
Speaker 5: some government claims or claims against the government that resulted
23:52
Speaker 5: in money that could be paid out. And the court,
23:56
Speaker 5: I think predictably and correctly, found that the mother, under
24:00
Speaker 5: those circumstances, having caused the deaths of her children, should
24:04
Speaker 5: not receive any share of the proceeds that arose from
24:08
Speaker 5: her children's wrongful deaths.
24:10
Speaker 2: So finally, how is this different from the son of
24:13
Speaker 2: Sam law?
24:14
Speaker 5: Interesting question, right? I think the public policy in a
24:16
Speaker 5: lot of respects mirrors for the Slayer rule, the Slayer statute,
24:20
Speaker 5: whether it's New York or California, mirrors the Son of
24:23
Speaker 5: Sam public policy, right? You can't profit from your crime
24:28
Speaker 5: under the Son of Sam laws that exist here in
24:30
Speaker 5: New York. And similarly, the Slayer rule prevents somebody who's
24:35
Speaker 5: a wrongdoer and takes someone else's life from receiving a
24:39
Speaker 5: share of an estate or trust that results from that
24:41
Speaker 5: person's death. What's also interesting, in addition to the Son
24:45
Speaker 5: of Sam concept, is that the Slayer rule has been applied,
24:49
Speaker 5: especially here in New York, in other contexts, right? So,
24:53
Speaker 5: for example, we have a case, Campbell v. Thomas, where
24:57
Speaker 5: the appellate division here in New York found that a
25:01
Speaker 5: surviving spouse who sought to receive her elective share, an
25:05
Speaker 5: interest in the deceased spouse's estate, after the deceased spouse's passing,
25:10
Speaker 5: on account of the fact that she was the surviving
25:13
Speaker 5: spouse should not be permitted to do so pursuant to
25:16
Speaker 5: the same principles that arose from Riggs versus Palmer. And
25:19
Speaker 5: the reason was that the surviving spouse in that case
25:23
Speaker 5: had wrongfully taken advantage of the then deceased spouse's infirmity,
25:29
Speaker 5: cognitive issues to get that person to marry her. And
25:33
Speaker 5: so when it came to light after the decedent's passing
25:37
Speaker 5: that she was claiming to be a surviving spouse, The
25:39
Speaker 5: court allowed equity to guide the resolution of that case
25:43
Speaker 5: and to say, just as we don't permit a wrongdoer
25:46
Speaker 5: who takes the life of the person to receive a
25:48
Speaker 5: share of that person's estate, in egregious circumstances, we can
25:52
Speaker 5: prevent a surviving spouse who seeks to receive a share
25:56
Speaker 5: of an estate, but who actually caused the marriage by
25:59
Speaker 5: wrongdoing from receiving that share of the estate.
26:02
Speaker 2: How often do you see cases like this?
26:05
Speaker 5: These types of cases rarely arise. They do happen every
26:08
Speaker 5: couple of years in terms of the slayer rule, the
26:10
Speaker 5: slayer statute cases, and they usually garner a lot of attention.
26:14
Speaker 5: But there are a lot of other ways that there's
26:18
Speaker 5: an interplay between trust and states law, which my colleagues
26:21
Speaker 5: here at Farrell Fritz and I handle, and the criminal
26:25
Speaker 5: aspects that can sometimes relate back. So we have instances
26:29
Speaker 5: where there are examples of elder abuse. and criminal prosecutions
26:34
Speaker 5: that may arise from elder abuse that also relate to
26:38
Speaker 5: trust and state disputes, that also relate to guardianship disputes
26:42
Speaker 5: that result in a need to protect people. And it's
26:46
Speaker 5: fascinating when these rare occasions where there's an interplay between
26:49
Speaker 5: trust and states and criminal law arise, but they are rare.
26:53
Speaker 2: Thanks for joining me, Rob. That's Robert Harper of Farrell Fritz.
27:00
Speaker 2: Threats against judges are at record highs. So when the
27:03
Speaker 2: General Counsel of the Department of Homeland Security posted a
27:08
Speaker 2: list in July naming the worst of the worst judges,
27:12
Speaker 2: several sitting federal judges like New Jersey Judge Esther Salas
27:17
Speaker 2: expressed their concerns.
27:19
Speaker 6: I worry for those judges and I worry what is
27:23
Speaker 6: to come from every judge that finds him or herself
27:27
Speaker 6: on this weekly unveiling, if you will, of the new
27:33
Speaker 6: worst of the worst district judge. I just don't understand
27:37
Speaker 6: what's the end game. What is the end game? with
27:42
Speaker 6: this type of rhetoric coming out of DHS. I don't
27:46
Speaker 6: understand it.
27:47
Speaker 2: And a group of 128 former judges filed a bar
27:51
Speaker 2: complaint against the general counsel, James Percival, alleging that his
27:55
Speaker 2: posts constitute serious professional misconduct, threaten the rule of law,
28:01
Speaker 2: and increase the risk of violence against judges. Well, the
28:05
Speaker 2: Florida bar has declined to investigate that complaint. Joining me
28:10
Speaker 2: is Bloomberg Law reporter Suzanne Moniak. Suzanne, start by telling
28:15
Speaker 2: us about that worst of the worst list that Percival
28:18
Speaker 2: put out.
28:20
Speaker 7: James Percival, who's the general counsel for the Department of
28:22
Speaker 7: Homeland Security, has been posting on social media a series
28:25
Speaker 7: he's calling the, quote unquote, worst of the worst judges.
28:28
Speaker 7: This is a riff off of an existing DHS social
28:30
Speaker 7: media series highlighting what they call the worst of the
28:33
Speaker 7: worst immigrants, who are immigrants with certain criminal convictions that
28:36
Speaker 7: they will highlight who are being deported.
28:38
Speaker 8: Here, Percival is calling him a worst of the worst.
28:40
Speaker 7: Judges, and he is highlighting judges by name who handed
28:44
Speaker 7: down decisions in immigration cases that he didn't like. So
28:47
Speaker 7: he criticizes them, describes the case in a way, and
28:50
Speaker 7: calls them out as worst of the worst.
28:52
Speaker 2: Former judges and even current judges came out and talked
28:57
Speaker 2: about this and complained about it because it feeds into,
29:01
Speaker 2: they say, the threats against judges that have been increasing
29:06
Speaker 2: over the last years. So retired judges complained about it?
29:11
Speaker 8: That's right.
29:12
Speaker 7: There was a complaint filed, a bar complaint with the
29:14
Speaker 7: Florida Bar by 128 retired judges, both state and federal,
29:19
Speaker 7: who said that they didn't think this was a proper
29:21
Speaker 7: use of James Percival's authority and position to be criticizing
29:25
Speaker 7: judges this way. They warned that it might drive threats
29:28
Speaker 7: to judges at a time when they're already facing a
29:31
Speaker 7: heightened threat landscape. And so they had argued that this
29:34
Speaker 7: was misconduct under Florida Bar rules.
29:36
Speaker 2: And tell us what the Florida Bar just decided to
29:40
Speaker 2: not do.
29:41
Speaker 8: That's right.
29:41
Speaker 7: The Florida Bar closed the complaint. They won't be investigating it.
29:44
Speaker 7: They stated in a letter a couple of days ago
29:47
Speaker 7: that it does not investigate or prosecute sitting officers appointed
29:51
Speaker 7: under the U.S.
29:51
Speaker 8: Constitution while they are in office.
29:53
Speaker 7: So essentially that they won't be looking into any professional
29:56
Speaker 7: misconduct complaints by a current administration official. The bar did
30:00
Speaker 7: say that the judges are welcome, the former judges, I
30:03
Speaker 7: should say, are welcome to refile this complaint once Percival
30:06
Speaker 7: is no longer serving in the administration.
30:09
Speaker 2: And he has not taken this graciously. Tell us what
30:12
Speaker 2: he's done since this decision came out.
30:14
Speaker 7: Percival is active on social media, to say the least,
30:17
Speaker 7: and he certainly has his own style. After the decision
30:21
Speaker 7: came out, he posted what appeared to be maybe an
30:24
Speaker 7: artificial intelligence-generated photo of himself as Gandalf from Lord of
30:29
Speaker 7: the Rings. And he captioned it, me after defeating 128
30:31
Speaker 7: former judges.
30:34
Speaker 2: Have you heard of any blowback at all from anyone
30:38
Speaker 2: in the administration that the general counsel of a federal
30:42
Speaker 2: agency is behaving like this?
30:46
Speaker 7: Not from the administration. Certainly, I can't, you know, speculate
30:49
Speaker 7: on how people might feel privately. But the DHS, when
30:53
Speaker 7: I've reached out for comment about these concerns, has defended him.
30:57
Speaker 7: DHS has maintained that they believe that this is valid
30:59
Speaker 7: criticism that he's making in a democracy and that, you know,
31:03
Speaker 7: judges are subject to criticism. Judges generally agree that they
31:06
Speaker 7: are subject to criticism, but have, you know, distinguished between
31:09
Speaker 7: what they see as criticism in his comments. They feel
31:12
Speaker 7: that he's mischaracterizing cases when he describes judges' rulings he
31:15
Speaker 7: disagrees with. and driving threats to judges in a way
31:19
Speaker 7: that goes beyond criticism that you would want to see
31:22
Speaker 7: in a democracy.
31:23
Speaker 2: Let's turn to a federal judge in Atlanta. House Republicans
31:28
Speaker 2: are looking for information about why a federal judge who
31:33
Speaker 2: had an affair in her chambers was privately reprimanded. Republican
31:38
Speaker 2: Judiciary Chair Jim Jordan and other lawmakers are asking questions
31:43
Speaker 2: the chief judge of the 11th Circuit Court of Appeals,
31:47
Speaker 2: which oversees Georgia, to respond by September 15th to their
31:54
Speaker 2: questions about why he didn't recommend that the judge voluntarily
31:59
Speaker 2: step down from the bench.
32:01
Speaker 7: The House came back to Washington this week, and one
32:03
Speaker 7: of the first things we got from them was a
32:06
Speaker 7: letter to the 11th Circuit chief judge. The 11th Circuit
32:09
Speaker 7: is the appeals court that oversees trial courts.
32:12
Speaker 8: In Georgia, Florida, and Alabama.
32:14
Speaker 7: They wrote that judge and asked for more information about
32:16
Speaker 7: his investigation into Judge Eleanor Ross, who is an Atlanta
32:20
Speaker 7: federal judge who was found to have committed misconduct in
32:22
Speaker 7: a decision released earlier this year, specifically by having an
32:25
Speaker 7: extramarital affair in her chambers with a top police officer,
32:29
Speaker 7: an earshot of her law clerks, which they found created
32:31
Speaker 7: a hostile work environment. They also found she improperly attended
32:35
Speaker 7: a political event and that she had lied about.
32:37
Speaker 8: Her behavior when approached by judicial investigators.
32:40
Speaker 7: However, at the time, the committee, the judicial committee that
32:43
Speaker 7: was investigating the misconduct recommended a private sanction. They didn't
32:46
Speaker 7: initially name her. It has later been reported and confirmed
32:49
Speaker 7: have been her. But they didn't recommend that she be
32:52
Speaker 7: forced to resign. We're now seeing the Hill take some
32:55
Speaker 7: of that onto itself. And House Republicans have indicated some
33:00
Speaker 7: interest in potentially initiating impeachment proceedings against her, whereby she
33:04
Speaker 7: could be removed from the bench.
33:05
Speaker 2: There have been attempts to impeach judges, but they've gone nowhere,
33:09
Speaker 2: at least in this particular House.
33:12
Speaker 8: That's right.
33:13
Speaker 7: This one is somewhat different in that in this case,
33:16
Speaker 7: the judiciary actually did find misconduct, whereas in a lot
33:19
Speaker 7: of cases that House Republicans have wanted to impeach judges,
33:22
Speaker 7: it's been about rulings that they disliked. And that's not
33:24
Speaker 7: an appropriate use of impeachment.
33:26
Speaker 8: That's not what impeachment is for. It's for misconduct.
33:28
Speaker 7: So, I mean, I think in a way it's possible
33:30
Speaker 7: that Republicans may have somewhat undermined their credibility with impeachment
33:34
Speaker 7: on this issue. You know, if they haven't seen success
33:38
Speaker 7: with some of the other impeachment resolutions they filed, what
33:41
Speaker 7: does that mean for their interest in pursuing this one?
33:45
Speaker 7: But I believe, you know, if they look at them
33:46
Speaker 7: all equally, you know, I think experts would agree that
33:49
Speaker 7: this one would have a lot more legs if they
33:51
Speaker 7: did want to move forward on it compared to ones
33:53
Speaker 7: they filed regarding Trump administration litigations.
33:57
Speaker 2: And Suzanne, you've been covering the disputes over Trump's White
34:01
Speaker 2: House ballroom and renovation of the Kennedy Center and the
34:06
Speaker 2: reflecting pool renovations and the attempt to build an arch.
34:12
Speaker 2: And you've talked to lawyers who are afraid that the
34:14
Speaker 2: Supreme Court's decision that the Historic Preservation Society that sued
34:19
Speaker 2: over the ballroom didn't have standing, that that decision could
34:23
Speaker 2: affect these other lawsuits against Trump over his planned renovations.
34:29
Speaker 8: That's right.
34:30
Speaker 7: The Supreme Court found that there likely wasn't standing for
34:33
Speaker 7: historic preservationists to challenge Trump's decision to demolish the White
34:36
Speaker 7: House East Wing and build a brand new bulb. And
34:39
Speaker 7: this could have ripple effects on a number of other
34:41
Speaker 7: court challenges regarding Trump's efforts to change other landmarks in Washington, D.C.
34:46
Speaker 7: We've already seen, since the Supreme Court issued that order,
34:50
Speaker 7: we've seen notices filed in two of those cases by
34:53
Speaker 7: the parties claiming that, actually, we don't think the Supreme
34:56
Speaker 7: Court order should do our case.
34:58
Speaker 8: But historic preservation.
34:59
Speaker 7: Law professors who I spoke to were concerned that this finding,
35:04
Speaker 7: which they've said would really narrow the number of people
35:07
Speaker 7: who could bring these lawsuits against changes to national monuments
35:11
Speaker 7: or landmarks, might make it very difficult for these other
35:14
Speaker 7: lawsuits to succeed. And effectively, could it just give this
35:19
Speaker 7: current administration a green light to continue building what they
35:21
Speaker 7: want to build, knowing that you know, very few people
35:25
Speaker 7: have grounds to challenge it successfully in court.
35:28
Speaker 8: We'll see.
35:29
Speaker 2: That same group is challenging the Kennedy Center, right?
35:34
Speaker 8: That's right.
35:34
Speaker 7: The National Trust is also one of the preservationist nonprofits
35:38
Speaker 7: challenging proposed renovations to the Kennedy Center.
35:41
Speaker 8: There are a number of other cases filed by different groups, too.
35:43
Speaker 7: We have preservationist groups have challenged an effort to paint
35:47
Speaker 7: the historic granite exterior of the Eisenhower Executive Office building,
35:51
Speaker 7: which is an office building near the White House. We've
35:53
Speaker 7: also seen litigation by a slightly different group of plaintiffs.
35:57
Speaker 7: A group of Vietnam War veterans have challenged Trump's stated
36:00
Speaker 7: proposal to build a 250-foot triumphal arch on Memorial Circle.
36:06
Speaker 7: They're arguing it would obstruct views to Arlington National Cemetery,
36:09
Speaker 7: where they might like to be buried one day. So
36:11
Speaker 7: we have seen slightly different claims brought by different types
36:14
Speaker 7: of people. But certainly, anytime you're narrowing the number type
36:18
Speaker 7: of person who can sue over something, it's going to
36:21
Speaker 7: put an obstacle toward having those challenges be successful in
36:25
Speaker 7: the future.
36:26
Speaker 2: And tell us more about the claims of the two
36:28
Speaker 2: groups who have already filed papers, I guess, in an
36:33
Speaker 2: attempt to fend off challenges to their standing to bring
36:37
Speaker 2: the suits.
36:38
Speaker 7: In two of the cases, there were challenges to both
36:41
Speaker 7: Trump's project to change the color of the Lincoln Memorial
36:44
Speaker 7: reflecting pool and also a second challenge over the Trump's
36:48
Speaker 7: proposed triumphal arch project We saw actually the plaintiffs, so
36:51
Speaker 7: the people who had brought the lawsuit, flagged for the
36:54
Speaker 7: court recently. Hey, the Supreme Court has issued this order,
36:58
Speaker 7: finding that these people didn't have standing to challenge the
37:01
Speaker 7: White House ballroom. Here's why we think our case is
37:03
Speaker 7: different and why we nonetheless have standing and how we
37:06
Speaker 7: believe our lawsuit is actually still consistent and backed up
37:10
Speaker 7: by the Supreme Court's legal findings here. So we've already seen,
37:14
Speaker 7: you know, it's definitely on their radar, these people who
37:17
Speaker 7: are challenging Trump's other projects, and it remains to be
37:20
Speaker 7: seen how it's going to play out.
37:21
Speaker 2: We'll see if the Justice Department starts challenging the standing
37:25
Speaker 2: of those groups in these other cases. Thanks so much, Suzanne.
37:29
Speaker 2: That's Bloomberg Law reporter Suzanne Moniak. And that's it for
37:34
Speaker 2: this edition of the Bloomberg Law Show. Remember, you can
37:36
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37:40
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37:52
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