This is Bloomberg Law with June Brasso from Bloomberg Radio. During her confirmation hearings, Justice Katangi Brown Jackson said her experiences as a public defender, a member of the Sentencing Commission, and appellate judge, and a trial judge would inform her role on the Supreme Court. I was a trial judge, and my methodology has developed in that context. I don't know how many other justices other than Justice so do mayor have that same perspective. But it informs me with
respect to what I understand to be my proper judicial role. Now, some defense lawyers are hoping that Jackson will become a voice for criminal defendants unlike her predecessor, and use the weight of her experience to form a new majority on the court in some criminal cases. An early task will come in a case that asks whether judges can punish defendants for crimes a jury has acquitted them of. Joining
me is Ohio State University law professor Douglas Burman. Do do you think that Justice Jackson's background will give her more gravity toss than a normal junior justice at the conference table when it comes to criminal justice issues? Yeah, so, Judge Jackson has a really rich history both in the work of the judiciary. So you know, he clerked for three different judges, you know, two judges and a justice.
In that in and of itself is exceptional, and I think gives her a rich set of perspectives about the work of judging, in particularly the kinds of cases that work their way through the federal court. You it's quite common now, I'm almost I think all but maybe Justice Hagan, of the current justices, had experienced as a circuit judge, so seeing cases that made their way to Screme Court
from the appellate stage. But Justice Jackson both clerked the District Court, the Circuit Court, and the Supreme Court, and then had a pretty extensive period as a district judge,
then a short period as a circuit judge. And so that piece, even apart from her time as a federal public defender and serving on the Sentencing Commission, that piece already not only distinguishes her from her colleagues, but I think particularly gives her a set of insights and perhaps an extra bit of confidence in kind of knowing how federal courts deal with the range of issues at every level.
And then the piece that really carries over to the criminal justice space that I work in, is that she has a background as a federal public defender, one of the few justices who in the Court's entire history have had a role in that respect, and then also served a number of years on the U. S Sentencing Commission and so particularly looked at sentencing practice and policy that way.
And so you've got to add all that up. And even though she's the youngest justice, she's in some sense the most experience in sort of watching the federal justice system function from all these different perspectives. Her predecessor, she's saying, just as Stephen Bryer, and everyone knows him as a liberal justice, but he wasn't necessarily so liberal in criminal
defense matters, was he? That's right? I mean, I think over the course of you know, a couple decades on the court, you could point to, Oh, these were some very liberal positions he had on some criminal justice matters. And the most obvious one there might be the death penalty, where he seemed, especially in his later years, to be trying to build an argument that the way the death
penalty functions our country is unconstitutional. But then you look at some other matters sometimes his rulings on Fourth Amendments for concesure issues, his rulings on the right to jury trials under the Sixth Amendments, some other issues as well. He was much more inclined to be leaning towards the prosecution, or at least in some sense was maybe valuably unpredictable, very eager to kind of hear the pros and cons.
But but often that was kind of styled in the context of being a very pragmatic justice who was very concerned about whether and how any limits on law enforcement and he limits on prosecutors might function to undermine some broader goals in the criminal justice system. And so in many respects, every justice is open minded to these issues.
But I think definitely Justice Prior, especially compared more recently to Justice sodomy Or, was less likely to be critical or at least questioning of a lot of assertions that you couldn't limit the police this way or you couldn't restrict trial rights that way without having a found impact
on the operation of the criminal justice system. Tell us about the case of Dante McClinton, a case of the justices are considering whether or not they'll take so this case involved the young man who got involved with a number of other young men and they robbed a pharmacy. Sadly, in the course of doing so, garrid and awful lot of people there, but didn't directly hurt anybody and only
were able to get away with a few hundred dollars. Then, in the course of dividing up the loot that they got and kind of fighting over it, seems how the robbery didn't go well, one of the robbers involved got shot and shot and killed. And the prosecution's claim was that Mr McClinton was the shooter and was guilty of speaking to try to rob his cohort of his part of the loot, and when he couldn't get it, he then shot this individual ultimately, and this is a key
part of the story. The jury didn't agree with that theory, and there was evidence presented a trial that suggested somebody else may have done that, and the details were unclear. What was clear is this Hurry was not convinced was not certain that Mr McClinton should be held accountable because they acquitted him on the charges at trial that related to the other young man being shot and killed. When
the case got to sentence thing. However, the government said, hey, judge, remember all that evidence he put forward, you know, arguing that he was guilty of killing his co conspirator. Well, even though the jury acquitted on those counts, we still think the evidence should convince you by a preponderance the evidence, which is typically the standard applied at sentencing as opposed to the beyond a reasonable doubt standard applied at trial. We think you should still be convinced that he was
responsible for that other young man's death. And so when you sentenced him for the robbery that he was convicted of, consider also the fact that he is responsible for causing this death, that he really is a murderer, even though the jury acquitted him on that. So the judge sentenced him to twenty years as opposed to the about five years he would have gotten if he'd been sentenced just for the robbery he was actually convicted of. That's pretty
much right. And again, exactly what he would have gotten for just the robbery could be debated. And this is where things get complicated because fundamentally there could be other aggravating factors that judge might rely on. But the judge said,
I think you were responsible for this death. I think because of that, I have to increase your guideline range, because the guideline range was even in the thirty year rain and the judge decided to only I put that in air quote give twenty and the rich lo hung detailed backstory is there's a case from almost twenty five years ago now with the Supreme Court said a judge is consideration of evidence, even related to counts on which
a defendant has been acquitted, doesn't violate to process. And that older decision came before some more recent rulings about the right to jury trial and the reach of the sixth Amendment. And so there's been lots of complaints by by me and lots of other people saying we don't think that's good precedent anymore, and the McClinton cases being pressed as an opportunity for the court to reconsider that older precedent. Does this come up often? I would think
it doesn't. However, since there's a term for this acquitted conduct issue, I guess it does. You know, again, it
depends on how you wanted to fine office. So given the fact that roughly speaking, nineteen out of twenty cases in the federal system are resolved by please then you know, in the vast majority of cases this can't come up because the case has been resolved by a plea and the terms of sentencing are defined by what's been admitted as part of the police But in a lot of cases they go to trial, it's quite common that there's multiple counts and that the defendant isn't convicted on all
the multiple accounts. And there can actually be different variations on this theme. One variation that's fairly high profile, that's not exactly the same issue, but but I made reference to it, and some of my writings about these matters is the Elippus Holmes. There a Noose trial where there
were multiple fraud counts brought to the jury. She was convicted on a few of them, and then there was a hung jury on some of the others, and those have now been dismissed because the prosecution said, we don't want to bother We've got enough convictions here. We're not
going to try to retry those those hung counts. But one of the reasons the prosecutor feels comfortable doing that is under these doctrines there and completely entitled to they might even think they're obliged to put forward that evidence
to the judges sentences. A judge still think that the amount of loss or the other aggravating factors under those counts that led to a hung jury, we still think we proved them close enough for government work, so to speak, and that should be part of your calculations as to what kind of sentence you should be facing. And there's
a bunch of other examples like this too. What what often very common in the drug settings, which are part and parts of about bill at least a quarter is not more of the federal cases that get brought, is the government will charge the defendant with multiple accounts of drug dealing or being part of a broader conspiracy in which there was lots and lots of dealing going on. If the case goes to trial, again, that's the exception. But if the case goes to trial, it's not at
all uncommon that a jury will reach a mixed verdict. Oh, yes, we think the defendant was definitely involved in these five transactions where they were personally doing the sales. But you say he's also part of these twenty other transactions and he says he wasn't. We have a doubt about that
we're going to quit on those other charges. And then still the prosecution can say, they often say in those kinds of cases, well, using the preponderance of evidence standard judge, we think we put enough evidence the show he was connected to these other twenty sales, and so you should use the amount of drugs that were involved not just in these sales that he was convicted of, but all these other sales that we think we have evidence to connect into, that all should be part of the guideline
calculation that drives up the sentence. And that's basically the fact pattern that led to a case about ten years ago, really the same basic issue where the late Justice Scalia and Justice Ginsburg joined with Justice Thomas in the sending from the denial of Sirt. There was a case called Jones, where again it was this drug setting where the prosecution claimed the series of defendants were involved in all sorts
of drug dealings. The jury came back with a very mixed and limited verdict, and then the prosecution went back to the judge of sentencing and said all the drug dealing we are led should be considered for deciding what the guideline ranges and the judge concluded at sentencing, Yeah, I guess I'm convinced that that's more likely than not, and so I've got to drive up the guideline sentencing range, which is often, you know, tethered to these quantifiable factors
like how much drugs are involved or how much loss is involved. And that's why this can become not just common in the cases that go to trial, but have such significant impacts in the length of sentence being recommended by the guidelines and the amount of prison time ultimately given by judge in that case. In case they needed one more vote to take the case, why do you think they didn't have the vote of Justice soda Mayor
or Justice Kagan. Well, thanks for quewing that up, because this gets back to our earlier points about Justice Brier has been consistently concerned about extending jury trial rights that would limit in some respect how judges used their discretion as sentences, and so my read on that was always the Justices Sotomayor and Kagan, even though they might be inclined to vote with the defendant in the case like that, we're quite concerned about what Justice Brier might think, and
even was concerned that maybe Justice Brier would convince are members of the Court to not want to limit the use of acquitted conduct once the case actually got taken up. So their instinct maybe was, let's just let this issue percolates the more and hope, you know, to get addressed
some other way. You know. Among the things that's interesting on this particular topic is there have been both congressional bills to rewrite the sentencing rules in statute to say that judges shouldn't consider this kind of acquitted conducts And just recently, the newly constituted U S Sentencing Commission has indicated that one of their possible priorities for the coming year would be to speak to this issue as well.
And so I think there's an argument to be made or more accurately, this is what the Supreme Court is likely going to be struggling with, even if they think this is a problematic practice. She should we be addressing this through broad constitutional rules or is this the kind of matter that it makes more sense to envision Congress and the Sentencing Commission to dress in the ways that they're arguably more able to craft nuanced rules to deal with. So you need the votes of for justices to take
the case. Let's say you have Clarence Thomas because he was in dissent on the last one. Let's big. You never know how these things go right exactly, and so you might have Justice Jackson and Justices Soda, Mayor and Kagan. Maybe, I actually think, although again this gets to, you know, the kind of inside baseball speculations. Justice Gorset has actually been one of the most vocal advocates for jury trial rights, kind of stepping into the shoes of Justice Scalia, who
was one of the most vocal ones. So I think Justice Corsets might be a fourth vote, maybe a fifth vote, depending on how all this comes together. In addition, and I think not to be overlooked, Justice Kavanaugh has actually written when he was a DC circuit to say that he thinks this is a problem and that the Supreme Court ought to take it up to kind of clarify things. Although that's sometimes easier to say when you're a circuit you're telling what other than when you're a justice yourself.
So you know, I think he's another possible vote. And last, but absolutely not least, Chief Justice Roberts also has been relatively quiet but not disengaged justice with respect to some of these jury trial right issues. And so I think there's reasons to speculate there could be ample votes. But I also think there's a way one could say, yeah, but you know what, Now it looks like Congress is interested in maybe addressing this. Now it looks like the
centen In Commission is interested in addressing this. If we jump in, that will disrupt that process, or at least we're worried maybe we can't craft a rule as a matter of constitutional law that will be as nuanced and helpful as the development of a rule through some other process, legislative or commission based. It's never easy to figure out whether or not the court is going to take a case, is it? Thanks so much, Doug? That's Ohio State University
law professor Douglas Berman. Twenty million, million, million, You get a million, You got hunter, a million, You got a famili On his Info War show, Alex Jones mocked the nearly one billion dollar jury verdict against him for spreading the myth that the deadliest school shooting in US history never happened, saying he could keep the Sandy Hook families
in court for years. People actually they're getting money. Getting the verdict is only the first hurdle in a long legal process for the families, one complicated by the fact that Jones company, Free Speed Systems, has filed for bankruptcy. Joining me is bankruptcy attorney Nicholas Kroft a Fox Rothschild. This verdict n five million and then another fifty million
in Texas. How often are these huge verdicts collected? Well, I mean it's tough when you have a bankruptcy case intervening in particularly here we have a bankrupcy case that was filed kind of strategically before these judgments were entered. When you have a billion dollar judgment, it's pretty tough
to collect on it. And certainly there's a lot of motivation ox Jones his part to come up with as many maneuverings in court as possible, you know, appropriate or not to delay payment on these debts, and these makeups to cases are certainly kind of part of that strategy to prolong payment and to at least come up with a narrative that Free Speech System doesn't have the money for it. He's personally liable for the damages if he doesn't file for personal bankruptcy, and he claims he has
less than two million to his name. If he doesn't file for personal bankruptcy, can the plaintiffs continue to go after him, you know, chase down his assets, go after his wages. Yeah, they'll be able to chase him to the ends of the earth if they want to. It's not kind of the typical judgment that you'd see in a torque case where someone is injured incurring medical bills,
hospital bills that need to get paid. With this judgment, you know, there is a little bit more flexibility on the plaintiffs part to sit around and wait for Alex Jones to start coming up with the money. But again, Alex Jon's is going to be motivated to continue trying to come up with it's legal fictions that suggests that he has no money to pay a judgment. Let's talk about the bankruptcy proceedings at his company, Free Speech Systems. Is in what stage are they in the bankruptcy proceedings?
You know, they've they've kind of come to an interesting stage, particularly for sub chapter five, And if you don't mind them kind of quickly go into just for context, what sub chapter five is so so in Congress enacted this new sub chapter to Chapter eleven. Chapter eleven's what we're all familiar with as a business bankruptcy that's reorganized. What has happened over the years is Chapter eleven has become very expensive and very time consuming for small mom and
pop businesses and small mom and pop business owners. So what Congress came up with was sub Chapter five, which created this kind of expedited proceeding for mom and pop businesses to quickly move through something really similar to a Chapter eleven but within only a couple of months. And the way that Congress came up with that was they eliminated some of the oversight that you would typically see
in the Chapter eleven case. A big one is the Committee of Unsecured Creditors, which is this body that kind of solves the collective action problem of a bunch of small unsecured creditors. They get to help supervise the case and appear in the case and and monitor the debtic
rout it. That's been eliminated in sub Chapter five and replaced with a sub Chapter five trustee that has very limited oversight roles at the outset, just really to kind of help shepherd the plan along to confirmation, and so alex Jones used sub Chapter five to file Free Speech Systems bankruptcy and that eliminated the oversight of, you know, a creditors committee which would probably be populated by these victims because they have significant At the time, they had
significant contingent judgments. And the timing of when alex Jones filed Free Speech Systems bankruptcy case is really important. He did it before the judgments were entered. Now, again, this is really only a provision of the Bankrupty Code intended for small mom and pop businesses. But what we've learned is Free Speech Systems generates a significant amount of revenue annually.
So the way that he was able to sneak into sub Chapter five was one these massive judgments hadn't been entered yet, so those didn't count against him for the debt cap that Congress placed on following some Chapter five bankruptcy. You can only have a company that has seven point five million dollars worth of debt that files. Obviously, these judgments were much more significant, but they hadn't been entered yet.
And the other kind of machination that alex Jones had worked out along the way is there's this other n p p QPR that he owns, and essentially what p QPR does is acts as a middleman between Alex Jones's podcasting company, free Speech Systems, and the companies from which Free Speech Systems buys all the kind of supplements that they sell on the Alex Jones and Worse podcast That
is a tremendous source of their revenue. Now, it's pretty contrived what Free Speech Systems alleged to have occurred between p QPR in itself, but apparently p QPR, without their middle manning, and Free Speech Systems wracked up a significant amount of debt for these middle manning services. And so just before Free Speech Systems filed bankruptcy, it entered into a secured loan with p QPR in the millions of
dollars range. And what Free Speech Systems claims is well, this was a way to create a repayment plan to this other entity that's been doing services for us. The contrived part of it looks like it was created to at least form an argument that Hay, free Speech Systems is insolvent and judgment proof the debt between p QPR and Free Speech Systems. These affiliate entities is not counted
towards the debt limit. So this is how a company with a lot of debt and a lot of revenue was able to sneak in to this new provision of the bankruptcy code that doesn't automatically have the same kind of oversight systems in place that a regular Chapter eleven case would have. The Sandy Hook families have intervened in the bankruptcy case. They accused Jones of burdening his company, Free Speech Systems with fifty four million dollars in concocted debt.
When will those claims be settled? Well, part of the early litigation of the bankruptcy case was the victim saying, hey, this debt with PQPR is concocted, and it's going to form the basis of an argument that Free Speech Systems is insolvent and judgment proof. So the victims said to the bankruptcy court, look, you know they filed their schedules and their financial disclosures free Speech Systems dead, indicating these
debts were legitimate. The only person in charge of confirming weather their legitimate is Alex Jones and his cronies who are running this business. We don't trust that. Please appoint a committee in this case to look into this, and the court kind of took a middle ground approach. Instead of appointing a committee, The court said, what I'm gonna do if I already have a sub chapter of five trustee who is a disinterested person, I'm going to expand the scope of her and I'm going to have her
investigate whether or not these debts actually are legitimate. And so the debtors are going to have to respond to document request the trustee has issued. The bankruptcy court has kind of pumped the brakes on moving the bankruptcy process forward, so this independent and kind of unusual investigation can take place. Because the bankruptcy court seriously doubt of the legitimacy of those debts, could the bankruptcy court eventually order liquidation of
Jones's business? I don't think the bankruptcy court could or would necessarily order a liquidation. But the position that the debtor finds himself and now is a little difficult because we now have an independent investigation into the legitimacy of this major secured debt, and if the investigation determines that
this debt is not legitimate. The gambit that seems to have motivated this bankruptcy filing in the first place of an otherwise healthy company before the judgments were entered kind of evaporates, and then you're left with a debtor under bankruptcy court supervision that is required to file a plan that pays creditors in some way, at least with revenue
over the next five years. And you don't have this kind of manufactured debt to serve as an argument that the only entity that can get paid is an Alex Jones affiliate. But debtor would then have to contend with the fact that it's able to and obligated to pay these judgments, at least in part. The interesting problem for Free speech Systems is its revenue is based on Alex Jones podcasting, and nobody can force Alex Jones to continue
podcasting for free speech systems. So one of the significant points of leverage the debtor has is if Alex Jones says, look, I'm not podcasting for Free Speech Systems anymore, you can have the liquidation value of the company, which is probably not going to be significant since they don't really have significant assets. Could he then podcast for a different company. Yeah, he could. I think that there would be significant arguments that this company would essentially end up being an alter
ego of free speech systems. But the problem is that just creates more litigation, more delay, and more time investigating this kind of web of companies that Alex Jones has built up. There's a separate question that you also raised about his own personal liability if he's continuing to generate income that might be a source of collection against him personally. One thing is sure a lot more litigation ahead. Thanks Nick. That's Nicholas cow Rop a Fox roth Child, and that's
it for the edition of the Bloomberg Law Show. Remember you can always get the latest legal news by listening to our Bloomberg Law podcast wherever you get your favorite podcasts. I'm June Grasso, and you're listening to Bloomberg