Latest / Miss Understood with Rachel Uchitel / Criminal Defense Attorney Mark Geragos Gives Us His Testimony

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Criminal Defense Attorney Mark Geragos Gives Us His Testimony · Miss Understood with Rachel Uchitel

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  Speaker 1: That's B-A-B-B-E-L dot com slash P-O-D. Start your journey to
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  Speaker 1: real conversations in a new language today. Welcome back to Misunderstood.
• 1:00
  Speaker 1: I'm your host, Rachel Yucatel. Okay, what do these names
• 1:04
  Speaker 1: have in common? Scott Peterson, Michael Jackson, Chris Brown, Winona Ryder,
• 1:09
  Speaker 1: the Menendez brothers. They have all been represented by today's
• 1:13
  Speaker 1: incredible guest, the esteemed criminal defense attorney, Mark Garagos. As
• 1:17
  Speaker 1: a fan of true crime, I've been fascinated by Mark
• 1:20
  Speaker 1: and all the people he represents for a very long time.
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  Speaker 1: What drives someone to defend people that for all intents
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  Speaker 1: and purposes appears guilty? How does he manage such high-profile
• 1:30
  Speaker 1: cases and doesn't seem to really break a sweat? How
• 1:33
  Speaker 1: important is the court of public opinion? Mark answers all
• 1:37
  Speaker 1: of that and much more. He gives us his thoughts
• 1:40
  Speaker 1: on the Alex Murdaugh trial, the fact that he is
• 1:44
  Speaker 1: asking for a new retrial. He talks evidence in the
• 1:47
  Speaker 1: Brian Koberger case with the Idaho murders. And we get
• 1:50
  Speaker 1: an update on his fight to help free Lyle and
• 1:53
  Speaker 1: Eric Menendez. He is an encyclopedia of knowledge, And I
• 1:56
  Speaker 1: had the best time chatting with him. So I only
• 1:59
  Speaker 1: had 30 minutes. Clearly, this man is very busy. And
• 2:03
  Speaker 1: as you may be following this reality reckoning story, he
• 2:07
  Speaker 1: is the lawyer that Bethany Frankel hired to contact NBC.
• 2:12
  Speaker 1: So his name has been heavily referenced. brought into entertainment
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  Speaker 1: news because of that. And so obviously this guy could
• 2:19
  Speaker 1: talk forever on a myriad of subjects. I really hope
• 2:23
  Speaker 1: that you enjoy this episode. Get a glass of wine,
• 2:25
  Speaker 1: sit back, relax, and enjoy my conversation with Mark Garagos.
• 3:02
  Speaker 1: Mark Garagos, thank you for joining me on Misunderstood. It's
• 3:04
  Speaker 1: such an honor. I've always wanted to meet you in person.
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  Speaker 1: So thank you.
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  Speaker 2: It's my pleasure. I haven't spoken to you before, so
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  Speaker 2: this is a great thing.
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  Speaker 3: I love it.
• 3:15
  Speaker 1: I love it, too. So, all right. I want to
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  Speaker 1: know from the beginning, did you experience something in your
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  Speaker 1: childhood that made you feel like you had more empathy
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  Speaker 1: for somebody that may be a criminal and you wanted
• 3:27
  Speaker 1: to deal with somebody that was facing criminal charges rather
• 3:30
  Speaker 1: than prosecuting them?
• 3:31
  Speaker 2: You want to know the truth? I'll give you the truth.
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  Speaker 2: So my father, when I was growing up from ages...
• 3:37
  Speaker 2: from when I was born to when I was about
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  Speaker 2: 14 years old, was a hard-charging DA, prosecutor, in the
• 3:45
  Speaker 2: county of Los Angeles. And I used to follow him around,
• 3:49
  Speaker 2: and I thought this was the greatest. I would watch
• 3:51
  Speaker 2: the old TV show Perry Mason. I kind of identified.
• 3:55
  Speaker 2: One day, I went during summer vacation. I watched him.
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  Speaker 2: He was prosecuting a case over in Glendale, California. And
• 4:03
  Speaker 2: the defendant was a kid who wasn't that much older
• 4:07
  Speaker 2: than me. I mean, obviously, he was in adult court,
• 4:10
  Speaker 2: maybe 18 years old. And my father, as the DA,
• 4:13
  Speaker 2: was asking that this kid go to state prison for
• 4:17
  Speaker 2: 18 months for being in a place where marijuana was smoked.
• 4:23
  Speaker 2: And not even smoking it, not possessing it, just being
• 4:26
  Speaker 2: in a place where marijuana was smoked. That blew me away.
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  Speaker 2: I remember sitting in the car with him afterwards saying,
• 4:33
  Speaker 2: how in the heck could you do that? How could
• 4:35
  Speaker 2: you ruin this kid's life? And shortly thereafter, my dad
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  Speaker 2: retired from the DA's office and went into private practice.
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  Speaker 2: And I joined him maybe 10 years later. I will
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  Speaker 2: tell you the follow-up, though, Rachel, to that story is
• 4:48
  Speaker 2: at his memorial service many years later, And I was
• 4:51
  Speaker 2: telling that same story. My mother afterwards came up to
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  Speaker 2: me and says, oh, that's so cute that you think
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  Speaker 2: you talked him out of the DA's office. And I said, well,
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  Speaker 2: I thought I didn't. I practiced with him for 20 years.
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  Speaker 2: And she said, no, no, no. He was making 17
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  Speaker 2: grand a year. I had three boys, including you. And
• 5:07
  Speaker 2: if you thought I was going to pay for college
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  Speaker 2: on 17 grand a year, you're out of your mind.
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  Speaker 2: So just goes to show you. But that was the
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  Speaker 2: pivotal moment for me, at least.
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  Speaker 1: That is a great story. So why in general and
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  Speaker 1: how does a criminal defense lawyer stand up for the
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  Speaker 1: rights of someone who clearly seems guilty? I mean, you're
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  Speaker 1: talking about a story that's a lot lesser than some
• 5:31
  Speaker 1: of the people you represent.
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  Speaker 2: I've had a number of cases. One I can think
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  Speaker 2: of right off the top of my head because it
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  Speaker 2: was so jarring to me. I've had cases where people
• 5:42
  Speaker 2: have been charged with special circumstance, special circumstances that not
• 5:47
  Speaker 2: only is it a murder case, but The prosecutor also
• 5:51
  Speaker 2: says either you were lying in wait, it was for
• 5:53
  Speaker 2: financial motive, it was more than one killing. I've had
• 5:57
  Speaker 2: people who I believed were innocent. I can think of
• 6:01
  Speaker 2: one case in particular. Now, if I was judging that person,
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  Speaker 2: I would have said, well, the evidence looks overwhelming. For instance,
• 6:09
  Speaker 2: in that case, the mother of the victim identified my guy,
• 6:14
  Speaker 2: said absolutely it was him. Guess what? Six months later,
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  Speaker 2: we had done a parallel investigation. DNA from a hat
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  Speaker 2: that the perp had left behind exonerated my guy, and
• 6:26
  Speaker 2: we identified who it really was. But not before the
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  Speaker 2: prosecutor had screwed up their case by having the mother
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  Speaker 2: positively identify my guy as the culprit, which meant that
• 6:37
  Speaker 2: they couldn't prosecute who really did it. I can give
• 6:40
  Speaker 2: you story after story about that.
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  Speaker 3: Let's greet the day by placing a piece of gum
• 6:44
  Speaker 3: in your mouth. Now chew. You're standing in a vast desert.
• 6:49
  Speaker 3: The air is minty.
• 6:52
  Speaker 2: Chew.
• 6:53
  Speaker 3: In the distance, the day arrives.
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  Speaker 2: Chew.
• 6:56
  Speaker 3: You say, hello day, we meet again. Chew. You shake hands.
• 7:02
  Speaker 2: Chew.
• 7:03
  Speaker 3: The day has a strong grip. Chew. But yours is stronger.
• 7:10
  Speaker 3: Extra gum. Chew good.
• 7:12
  Speaker 2: The things that's been great about the Innocence Project is
• 7:16
  Speaker 2: the number of people who were on death row who
• 7:19
  Speaker 2: had been falsely identified that DNA later after the fact
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  Speaker 2: came along and exonerated. So it's not my job to
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  Speaker 2: be the judge and the jury. It's my job to
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  Speaker 2: hold the prosecution accountable and make sure that they do
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  Speaker 2: their job. we're in a system that is irretrievably broken.
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  Speaker 2: By the way, our system may be irretrievably broken.
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  Speaker 1: Right, right. Very true. Is there a case that you
• 7:48
  Speaker 1: wouldn't take?
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  Speaker 2: I've turned down cases. I won't mention who they are,
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  Speaker 2: but I've had cases, and fairly recently, where I have
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  Speaker 2: not taken the case. I may have known the person
• 8:00
  Speaker 2: for many years and felt uncomfortable doing it. I can
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  Speaker 2: think of a couple of you know, household names that
• 8:08
  Speaker 2: have come to me and kind of begged me to
• 8:11
  Speaker 2: represent them. And I've just said, look, I'll talk to you.
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  Speaker 2: I'll give you some advice. But this is not a
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  Speaker 2: case at this point in my career that I want
• 8:19
  Speaker 2: to take. I mean, there's a there's a difference. I mean,
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  Speaker 2: early on, you kind of are scrappy. You'll take almost
• 8:25
  Speaker 2: anything as you get on. And I've been doing this
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  Speaker 2: for over four decades. You're a little bit more discerning in.
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  Speaker 1: What you think. Yeah, but is that mostly because you
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  Speaker 1: think the evidence is so overwhelming or does that really
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  Speaker 1: not matter to a criminal defense attorney? Is it more
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  Speaker 1: just about how you can get around the evidence?
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  Speaker 2: Well, let me tell you, I won't mention any names again,
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  Speaker 2: but I will tell you that there's a current lawyer
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  Speaker 2: who I know who's a friend of mine who's on
• 8:58
  Speaker 2: a streak, a win streak. But the fact is he's
• 9:03
  Speaker 2: only taking cases to trial that he knows are weak
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  Speaker 2: from the prosecution standpoint. He's picking and choosing. I've had
• 9:12
  Speaker 2: the opposite urge for whatever reason. And maybe you asked
• 9:16
  Speaker 2: me about my childhood. Maybe it had something to do
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  Speaker 2: with that. But I like cases that look absolutely insurmountable.
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  Speaker 2: I like cases where somebody tells me you cannot win
• 9:26
  Speaker 2: this case. To me, that is a much more challenging
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  Speaker 2: challenge type of a case rather than padding my win streak.
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  Speaker 2: I've had incredible good fortune. I remember a seven-year streak
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  Speaker 2: of cases where I had lost a jury trial. But
• 9:47
  Speaker 2: what that also does is it makes you a little,
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  Speaker 2: you know, you start to believe your own ego and
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  Speaker 2: think that you can never lose and kind of expand
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  Speaker 2: the horizons of what you will try. But I don't
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  Speaker 2: really care what the evidence is because that's not my
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  Speaker 2: role as a criminal defense lawyer. My role as a
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  Speaker 2: criminal defense lawyer, if the evidence is overwhelming, if I
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  Speaker 2: have tested it, if I've done a parallel investigation, if
• 10:13
  Speaker 2: I believe that there's no way that you can win
• 10:16
  Speaker 2: your case, then I've got another role. My role is
• 10:19
  Speaker 2: find this person the best place for them to land.
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  Speaker 2: I often say I'll get you a soft place to land,
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  Speaker 2: but sometimes you can't do that. Sometimes clients are just
• 10:30
  Speaker 2: in complete denial and do not want to hear what
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  Speaker 2: you have to say.
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  Speaker 1: So does it matter to you whether or not you
• 10:37
  Speaker 1: think they're guilty?
• 10:39
  Speaker 2: No, it doesn't. And that's something I have to school
• 10:42
  Speaker 2: clients on. I tell them, you know, there was... tell
• 10:46
  Speaker 2: you another story. I mean, I, out of college, gave
• 10:50
  Speaker 2: serious thought to becoming a priest and following a professor
• 10:54
  Speaker 2: of mine in college to theology or divinity school. And
• 10:58
  Speaker 2: believe it or not, the archbishop talked me out of
• 11:02
  Speaker 2: it and said, we need you more as a lawyer
• 11:04
  Speaker 2: than as another priest. And I will tell clients, I'm
• 11:08
  Speaker 2: not your priest. I'm not a judge. I am somebody
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  Speaker 2: here to advocate for you. I'm here to fight for you.
• 11:15
  Speaker 2: I'm a, to some degree, a mercenary, a legal mercenary
• 11:19
  Speaker 2: within the confines of what is ethical. And by the way,
• 11:24
  Speaker 2: you as a client, I don't know if you've, well,
• 11:28
  Speaker 2: you've had your share of lawyers, I would assume, almost
• 11:32
  Speaker 2: everybody has who's in in a high profile position. You
• 11:36
  Speaker 2: can't not have legal representation. The last thing you want
• 11:40
  Speaker 2: as a client, I've been a client, the last thing
• 11:43
  Speaker 2: you want is a lawyer who's judging you. You want
• 11:46
  Speaker 2: a lawyer who has got your back, you want a
• 11:49
  Speaker 2: lawyer who is defending you. You don't want a lawyer who's,
• 11:53
  Speaker 2: I often joke about ex-US attorneys. I say some of
• 11:56
  Speaker 2: them have never left the office. They're still working for
• 11:59
  Speaker 2: the prosecution. So that's not what clients want. That's not
• 12:04
  Speaker 2: what your role as a lawyer is. Your role as
• 12:07
  Speaker 2: a lawyer is to serve your client.
• 12:10
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  Speaker 2: Right. Okay.
• 14:14
  Speaker 1: What is more powerful to you, the court of law
• 14:16
  Speaker 1: or the court of public opinion? The reason I want
• 14:19
  Speaker 1: to bring that up is because of like the Idaho murders.
• 14:23
  Speaker 1: Brian Koberger seems to be, am I pronouncing his name right?
• 14:27
  Speaker 2: Yeah, Coburn. Okay.
• 14:29
  Speaker 1: He seems to be guilty in the eyes of everyone
• 14:32
  Speaker 1: that's been following this trial, or this case, but he
• 14:35
  Speaker 1: hasn't gone to trial. The court of public opinion says
• 14:38
  Speaker 1: he's guilty. So what are your thoughts on that?
• 14:40
  Speaker 2: My thoughts on that is this is a highly circumstantial
• 14:44
  Speaker 2: case from what we know right now. By the way,
• 14:47
  Speaker 2: the prosecution and to some degree, the defense has kept
• 14:51
  Speaker 2: a pretty a tight lid on this case. The judge
• 14:55
  Speaker 2: has issued a gag orders. So everything that we're getting
• 14:59
  Speaker 2: and having been there and dealt with what I call
• 15:02
  Speaker 2: super-sized murder trials, you never know what you don't know.
• 15:08
  Speaker 2: And so there could be things here that the defense
• 15:12
  Speaker 2: knows that could exculpate him. There could also be things
• 15:16
  Speaker 2: that inculpate him that the prosecution knows and they want
• 15:19
  Speaker 2: to wait until trial. I'll give you an example. If
• 15:21
  Speaker 2: there is any DNA that connects any of those four
• 15:28
  Speaker 2: unfortunate deceased to him in his apartment, that's a hard
• 15:33
  Speaker 2: thing to explain. People will say, well, what about the
• 15:36
  Speaker 2: DNA of the sheath and the knife at the location?
• 15:39
  Speaker 2: That does not As a defense lawyer, that does not
• 15:43
  Speaker 2: answer the question for me. That is, that may be
• 15:46
  Speaker 2: probable cause. You know, is there a strong suspicion? That's
• 15:51
  Speaker 2: not evidence beyond a reasonable doubt because anybody could have
• 15:55
  Speaker 2: taken the sheath. He could have handled it at any
• 15:57
  Speaker 2: time and it could have been left there by the perpetrators.
• 16:01
  Speaker 2: Could be for all we know, the perpetrator is somebody
• 16:03
  Speaker 2: he's interacting with. So the court back, long explanation back
• 16:08
  Speaker 2: to your question, It is almost trite, it's almost archaic
• 16:15
  Speaker 2: if you're doing a high profile case to ignore the
• 16:18
  Speaker 2: court of public opinion. And one of the reasons for
• 16:21
  Speaker 2: that is if this case is going to trial, and
• 16:24
  Speaker 2: by all accounts, it looks like it is, it's going
• 16:27
  Speaker 2: to be a trial, you've got to select the 12
• 16:30
  Speaker 2: people who are gonna decide this case. If they come
• 16:33
  Speaker 2: in and they've already decided the case before they've entered
• 16:37
  Speaker 2: those doors of that jury, courtroom, that jury room, then
• 16:41
  Speaker 2: why are you even trying the case? You've got to
• 16:44
  Speaker 2: be there. You've got to deal with it. You've got
• 16:46
  Speaker 2: to fight back. Yeah.
• 16:47
  Speaker 1: I was going to ask you that later. What are
• 16:49
  Speaker 1: your thoughts on how do you create an unbiased jury,
• 16:52
  Speaker 1: especially when there's a case that is so high profile
• 16:55
  Speaker 1: like this and all the other ones we follow? True
• 16:57
  Speaker 1: crime is what people are obsessed with now. So it's
• 17:01
  Speaker 1: hard to not have details of a big case and
• 17:03
  Speaker 1: already have formed an opinion. How do you select a
• 17:05
  Speaker 1: jury that is unbiased?
• 17:08
  Speaker 2: One of the things that I've argued for decades is
• 17:11
  Speaker 2: that we have imported the tabloid culture from England, from
• 17:17
  Speaker 2: the UK. We now have that here in America. However,
• 17:22
  Speaker 2: in the UK, what happens? When you have one of
• 17:25
  Speaker 2: these supersized cases, they have a mechanism for shutting down
• 17:31
  Speaker 2: coverage once it gets to trial. We don't have that.
• 17:35
  Speaker 2: We actually have the opposite. We go wall-to-wall coverage. Take
• 17:40
  Speaker 2: a look at some of the trials of the century,
• 17:42
  Speaker 2: which seem to happen now every summer, but Murdoch being
• 17:46
  Speaker 2: the last one. There is always this revelation, if you will,
• 17:53
  Speaker 2: of evidence that takes place during the trial And that
• 17:59
  Speaker 2: we didn't know about beforehand, number one. And number two,
• 18:02
  Speaker 2: you have people who are predisposed towards guilt because they
• 18:07
  Speaker 2: assume there is this kind of assumption that if the
• 18:10
  Speaker 2: prosecution brought the case, people want to reflexively believe there
• 18:15
  Speaker 2: must be a case. How could they be wrong? And
• 18:19
  Speaker 2: what I always say is, you don't believe the government
• 18:22
  Speaker 2: in every other context. Why do you believe the government here?
• 18:27
  Speaker 1: But- Well, that's a good question. And it comes to
• 18:31
  Speaker 1: my next question, which is about having cameras in the courtroom.
• 18:34
  Speaker 1: A lot of people are against it. People are, you know,
• 18:36
  Speaker 1: people are for it right now. People are making a
• 18:39
  Speaker 1: case to have cameras in the upcoming trial for Donald Trump.
• 18:43
  Speaker 1: I want to know your thoughts about that. But also,
• 18:45
  Speaker 1: I know there was some issues with what you've said before,
• 18:48
  Speaker 1: not having cameras. cameras in your Scott Peterson trial because
• 18:51
  Speaker 1: they were only taking B-roll and catching glimpses of him.
• 18:54
  Speaker 1: So everyone thought that he was cold or calculated or
• 18:57
  Speaker 1: whatever their vision was. But sometimes it might be good
• 19:00
  Speaker 1: to have cameras in the courtroom because of all this
• 19:04
  Speaker 1: false news, or you're just getting the opinion of someone
• 19:07
  Speaker 1: who's watching it. And then that journalist is.
• 19:10
  Speaker 3: Let's greet the day by placing a piece of gum
• 19:12
  Speaker 3: in your mouth. Now chew. You're standing in a vast desert.
• 19:18
  Speaker 3: The air is minty.
• 19:20
  Speaker 2: Chew.
• 19:21
  Speaker 3: In the distance, the day arrives.
• 19:23
  Speaker 2: Chew.
• 19:24
  Speaker 3: You say, hello, day. We meet again.
• 19:28
  Speaker 2: Chew.
• 19:29
  Speaker 3: You shake hands.
• 19:30
  Speaker 2: Chew.
• 19:31
  Speaker 3: The day has a strong grip. Chew. But yours is stronger.
• 19:38
  Speaker 3: Extra gum. Chew. Good.
• 19:40
  Speaker 1: Giving the reflection of what they're seeing, which might not
• 19:42
  Speaker 1: be accurate.
• 19:44
  Speaker 2: You've hit the nail right on the head. My big
• 19:47
  Speaker 2: complaint about... I thought Scott Peterson... I joined the prosecution
• 19:51
  Speaker 2: in saying, no, I'm against cameras in the courtroom. I thought,
• 19:55
  Speaker 2: my thinking was, that would dampen down the kind of
• 19:59
  Speaker 2: brouhaha and circus around it. It had the opposite effect.
• 20:03
  Speaker 2: I ended up having people sitting in New York, 3,000
• 20:06
  Speaker 2: miles away from Stanislaus County... 3,000 miles away from San Mateo,
• 20:11
  Speaker 2: who were commenting on what happened in the courtroom, which
• 20:13
  Speaker 2: bore little or no resemblance to what actually happened. I've
• 20:17
  Speaker 2: had this discussion with Marsha Clark. I've known Marsha since
• 20:20
  Speaker 2: well before OJ, when she was one of the hard-charging
• 20:25
  Speaker 2: rising stars in the LIDA's office and couldn't lose the case.
• 20:29
  Speaker 2: Marsha couldn't. And she and I, you know, she would say,
• 20:34
  Speaker 2: if I had to do it over again, I wouldn't
• 20:36
  Speaker 2: want cameras in the courtroom, would be my guess. And
• 20:38
  Speaker 2: I've said, if I had to do it over again,
• 20:41
  Speaker 2: I do want cameras in the courtroom or in the alternative.
• 20:46
  Speaker 2: I would want jurors sequestered. And what I mean by
• 20:50
  Speaker 2: that is you pick a jury and then the jurors,
• 20:54
  Speaker 2: they don't go home. They sit, they listen to the evidence,
• 20:57
  Speaker 2: they go to a hotel, they come back each day,
• 21:01
  Speaker 2: listen to the evidence. A sequestered jury is probably the
• 21:07
  Speaker 2: only alternative when you have these cases that are absolutely
• 21:11
  Speaker 2: kind of wall-to-wall coverage. I do remember, however, one guy
• 21:18
  Speaker 2: asking during jury selection of a case recently if there
• 21:22
  Speaker 2: was going to be a sequestered jury. And we said, no,
• 21:26
  Speaker 2: I've asked for it, but the judge isn't giving it.
• 21:28
  Speaker 2: He says, oh, that's too bad. My wife was hoping
• 21:30
  Speaker 2: that I would be sequestered. People go in to jury
• 21:36
  Speaker 2: service with different motivations, is the best way to put it.
• 21:41
  Speaker 1: I do get that. So let's see. No, I asked that. No,
• 21:47
  Speaker 1: trials where you think they got it wrong. For me,
• 21:50
  Speaker 1: that would be Casey Anthony. What do you think?
• 21:53
  Speaker 2: No, I think Casey Anthony, based on the evidence.
• 21:56
  Speaker 1: Based on the evidence.
• 21:58
  Speaker 2: Based on the evidence that was produced in court, I
• 22:01
  Speaker 2: think Jose got the verdict that he should have.
• 22:04
  Speaker 1: That doesn't... You're absolutely right. He did an amazing job.
• 22:08
  Speaker 1: He seemed like a genius. But so how... And I
• 22:11
  Speaker 1: was talking to a friend about this last night. It's
• 22:13
  Speaker 1: so difficult because you have to be a good juror.
• 22:16
  Speaker 1: Correct me if I'm wrong. You have to go based
• 22:18
  Speaker 1: on the evidence. Everyone may have known or thought she
• 22:20
  Speaker 1: was guilty. But with what was presented to them, the
• 22:23
  Speaker 1: jury did the right thing by finding her not guilty.
• 22:27
  Speaker 2: Correct. Well, it's exactly right. I'll give you another example.
• 22:30
  Speaker 2: There were two juries for OJ. There was a criminal
• 22:33
  Speaker 2: jury with Marsha prosecuting. There was a civil jury. where
• 22:38
  Speaker 2: Dan Petruccelli was bringing the case on behalf of the victims.
• 22:42
  Speaker 2: The criminal jury acquitted OJ. And you know, people who
• 22:45
  Speaker 2: say that was an outrage. No, based on the fact
• 22:49
  Speaker 2: that you had the lead detective who was subsequently prosecuted
• 22:54
  Speaker 2: for perjury, who the jurors saw committed basically or lied
• 22:59
  Speaker 2: to them, to their face, and you had beyond a
• 23:02
  Speaker 2: reasonable doubt, and OJ did not take the stand, because
• 23:06
  Speaker 2: I've had murder cases that I would have won if
• 23:09
  Speaker 2: my client didn't take the stand. I will go there
• 23:12
  Speaker 2: right now. But OJ did not take the stand, they acquitted.
• 23:16
  Speaker 2: The civil case where there's a different standard, Petruccelli, Dan
• 23:20
  Speaker 2: was able to call OJ to the stand and you
• 23:25
  Speaker 2: had a lesser standard of proof, he was found liable.
• 23:29
  Speaker 2: So both juries, in my opinion, got it right based
• 23:33
  Speaker 2: on the confines of what the burden of proof is
• 23:37
  Speaker 2: and what evidence was presented to them.
• 23:40
  Speaker 1: So is there one you can think of where you
• 23:42
  Speaker 1: think the jury got it wrong based on evidence?
• 23:44
  Speaker 2: Well, I think that the case I was talking about,
• 23:47
  Speaker 2: which was Zumat, which was a case that I tried
• 23:53
  Speaker 2: over 10 years ago, murder case in Santa Clara County,
• 23:58
  Speaker 2: was covered extensively by Dateline and some others. He I,
• 24:03
  Speaker 2: at the end of that, the prosecution case, there was
• 24:07
  Speaker 2: no doubt in my mind that that jury was hung.
• 24:11
  Speaker 2: He later took the stand, and I think it's on
• 24:14
  Speaker 2: the record over my objection, that jury ended up convicting him.
• 24:20
  Speaker 2: Jurors were interviewed and said, if he hadn't taken the stand,
• 24:24
  Speaker 2: they never would have convicted him. The Court of Appeal,
• 24:27
  Speaker 2: and then the District Court, District Court specifically, reverse that case.
• 24:32
  Speaker 2: And it comes up for trial this next year. So yes,
• 24:35
  Speaker 2: I think the jury got it wrong. I don't think
• 24:37
  Speaker 2: he was, I don't think he was guilty by a
• 24:40
  Speaker 2: long shot. But what happened is, when you try a case,
• 24:45
  Speaker 2: and the toughest decision a defense lawyer will ever have
• 24:48
  Speaker 2: to make is, do I put my client on the stand?
• 24:51
  Speaker 2: Because what happens is, everything that you've done before that,
• 24:55
  Speaker 2: all the cross-examination, you'd be the incarnation of Clarence Darrow,
• 25:00
  Speaker 2: Once you put your client on the stand, all the
• 25:02
  Speaker 2: jurors talk about, first thing they're going to say when
• 25:04
  Speaker 2: they go back there, what did the defendant say? Everything is,
• 25:08
  Speaker 2: what is the accused? What did he say? What did he,
• 25:11
  Speaker 2: did we like it? Did we want to, do we
• 25:13
  Speaker 2: want to help him? Or did he look shifty?
• 25:15
  Speaker 1: Did he look like he was telling the truth or
• 25:18
  Speaker 1: making up? Was it real tears? Yeah.
• 25:20
  Speaker 2: Right. Exactly. And by the way, remember the disadvantage that
• 25:24
  Speaker 2: a defendant.
• 25:25
  Speaker 3: Let's greet the day by placing a piece of gum
• 25:27
  Speaker 3: in your mouth. Now chew. You're standing in a vast desert.
• 25:33
  Speaker 3: The air is minty.
• 25:35
  Speaker 2: Chew.
• 25:36
  Speaker 3: In the distance, the day arrives.
• 25:38
  Speaker 2: Chew.
• 25:39
  Speaker 3: You say, hello day, we meet again. Chew. You shake hands. Chew.
• 25:46
  Speaker 3: The day has a strong grip. Chew. But yours is stronger.
• 25:53
  Speaker 3: Extra gum. Chew good.
• 25:55
  Speaker 2: It has, especially if you're in custody. You're sitting there,
• 25:58
  Speaker 2: you sleep in a cement box, you're eating bologna sandwiches,
• 26:02
  Speaker 2: you're getting awakened at three in the morning to take
• 26:04
  Speaker 2: a bus in shackles to go to court. Then your
• 26:07
  Speaker 2: lawyer is yelling at you, put on some decent clothes
• 26:09
  Speaker 2: so you don't look like a You know, and there
• 26:12
  Speaker 2: he was. Then you're going out there. You've got a
• 26:14
  Speaker 2: prosecutor who's up there and he's slept in his bed.
• 26:17
  Speaker 2: He's got a beautiful wife that, you know, that pushes
• 26:21
  Speaker 2: him off in the morning or handsome husband who sends
• 26:25
  Speaker 2: him on his way. And they're well rested. They've maybe
• 26:28
  Speaker 2: had a nice dinner the night before. And you're doing
• 26:30
  Speaker 2: that battle with that person while you're on trial for
• 26:33
  Speaker 2: your life. It's a, from the get-go, it's an uneven battle. Yeah.
• 26:38
  Speaker 1: Is there something just really quickly that you can spot
• 26:41
  Speaker 1: when you're in a trial and you're looking at the jury?
• 26:45
  Speaker 1: Can you tell when they like a client, don't like
• 26:47
  Speaker 1: a client, believe them, don't? Is there something you're looking for?
• 26:50
  Speaker 2: You know, it's such a brilliant question. As we started off,
• 26:54
  Speaker 2: you and I haven't met, but you are so intuitive
• 26:57
  Speaker 2: because The only reason that I'm still addicted to jury
• 27:02
  Speaker 2: trials is precisely for that, Rachel B. There is nothing
• 27:06
  Speaker 2: better in my mind than reading jurors or trying to
• 27:11
  Speaker 2: read jurors or seeing what their reaction is to witnesses
• 27:15
  Speaker 2: or to closings or even openings, but to witnesses mostly.
• 27:21
  Speaker 2: That is where I don't have very many skills, but
• 27:25
  Speaker 2: cross-examination and reading jurors are the only two things I
• 27:28
  Speaker 2: think I do well in life. And those are the
• 27:32
  Speaker 2: things that keep me coming back for more. I mean,
• 27:35
  Speaker 2: it's addictive and it's really, it's the urge. I understand
• 27:40
  Speaker 2: people who are compulsive gamblers, for instance, at the table
• 27:45
  Speaker 2: till they have no money at the table or till
• 27:48
  Speaker 2: they can't push away. There is something about a jury
• 27:51
  Speaker 2: trial watching 12 strangers decide you're basically taking your client's
• 27:58
  Speaker 2: life and putting it in 12 strangers hands and you
• 28:02
  Speaker 2: get immediate kind of either validation as a lawyer or
• 28:08
  Speaker 2: and your client, obviously, but as a lawyer, the reason
• 28:11
  Speaker 2: you keep doing it. Also, one of the reasons that
• 28:14
  Speaker 2: trial lawyers burn out at about 72. This is one
• 28:19
  Speaker 2: of my other anecdotal observations. They get to 72 and
• 28:23
  Speaker 2: they fall off a cliff. And part of it is
• 28:27
  Speaker 2: because you cannot keep up that kind of addiction to
• 28:31
  Speaker 2: that adrenaline rush, in my humble opinion, for that long.
• 28:36
  Speaker 1: Yeah, yeah. Speaking of Alex Murdoch from earlier, his attorney
• 28:42
  Speaker 1: is asking for a new trial. Just briefly, what are
• 28:44
  Speaker 1: your thoughts on that? Do you think he'll get one?
• 28:47
  Speaker 2: I've known Dick Harpootlian. Jim, I know because of this trial,
• 28:51
  Speaker 2: but Dick Harpootlian, I've known for many, many years. So
• 28:53
  Speaker 2: he's a wonderful lawyer. I think he's got a whale
• 28:58
  Speaker 2: of an issue here. Remember, you're great at this, Rachel.
• 29:03
  Speaker 2: The hardest decision you have to make is whether you
• 29:09
  Speaker 2: put your client on the stand. I know, I will
• 29:12
  Speaker 2: tell you how, that they struggled with that decision because
• 29:17
  Speaker 2: the evidence, in my opinion, had been less than what
• 29:21
  Speaker 2: you needed for beyond a reasonable doubt until they put
• 29:24
  Speaker 2: him on the stand. But they made the decision to
• 29:27
  Speaker 2: do that. It's ultimately, it's the one area where the
• 29:30
  Speaker 2: client has control. You can tell the client, like I
• 29:35
  Speaker 2: have on several occasions, I don't want you to testify,
• 29:38
  Speaker 2: they get the ultimate, It's not strategic. At that point,
• 29:42
  Speaker 2: it's the client's constitutional right. Murdoch takes the stand. They
• 29:46
  Speaker 2: did not know that the court clerk had allegedly gone
• 29:50
  Speaker 2: in and told the jurors, don't believe him, watch him,
• 29:53
  Speaker 2: watch his body language, basically had torpedoed that decision, the
• 29:58
  Speaker 2: most important decision you'll make in a trial, before they'd
• 30:00
  Speaker 2: ever called him to the stand. So is that material? Absolutely.
• 30:05
  Speaker 2: Is that something that it should get reversed? Unfortunately for
• 30:08
  Speaker 2: the taxpayers, yes.
• 30:10
  Speaker 3: Wow.
• 30:12
  Speaker 1: That will be interesting. Okay, let's get to the Menendez brothers,
• 30:15
  Speaker 1: which is why I really wanted.
• 30:16
  Speaker 2: To talk to you. And I'm out of time, so.
• 30:19
  Speaker 1: Not yet, I got five minutes.
• 30:20
  Speaker 2: Okay.
• 30:21
  Speaker 1: So all right. So basically, everyone knows the story. I'm
• 30:24
  Speaker 1: not going to recap it. The bottom line is that
• 30:28
  Speaker 1: Lyle and Eric have been in jail for about 34
• 30:32
  Speaker 1: years now. They were convicted, life in prison for the
• 30:35
  Speaker 1: both of them. And now there is some new evidence.
• 30:38
  Speaker 1: You have submitted a writ of habeas corpus. And also,
• 30:42
  Speaker 1: I think there's a California resentencing law and you are
• 30:45
  Speaker 1: looking to do some mitigation evidence. Just tell us what
• 30:49
  Speaker 1: all that means.
• 30:50
  Speaker 2: Sure. So for those who weren't in the weeds at
• 30:53
  Speaker 2: the time, you did a wonderful job of kind of
• 30:56
  Speaker 2: summarizing it. But basically what happened is trial number one,
• 30:59
  Speaker 2: the kind of renowned defense lawyer Leslie Abramson tried. It
• 31:04
  Speaker 2: was a hung jury. More jurors leaning towards manslaughter than murder.
• 31:09
  Speaker 2: That's what a hung jury is. After that trial, what happens?
• 31:14
  Speaker 2: Gilgar said he is running for DA. They lose the
• 31:18
  Speaker 2: OJ case. And they're mocked because they had also lost
• 31:23
  Speaker 2: the case involving the four officers and Rodney King. There
• 31:27
  Speaker 2: was this perception that the LADA's office could not win
• 31:31
  Speaker 2: the big one. So they assigned, miraculously, David Kahn to
• 31:37
  Speaker 2: try the second case. David Kahn was believed to be
• 31:40
  Speaker 2: the chief rival for Gil Garcetti politically in the next election.
• 31:46
  Speaker 2: So David was taken off the board, was not going
• 31:49
  Speaker 2: to run against Gil. They then tried the second trial,
• 31:53
  Speaker 2: and the judge changed all of his rulings, did not
• 31:57
  Speaker 2: allow in what's called imperfect self-defense, which is, you know,
• 32:01
  Speaker 2: we have a robust theory here in California about battered
• 32:06
  Speaker 2: women's syndrome, which had been expanded into other traumas, and
• 32:10
  Speaker 2: that would have been imperfect self-defense, basically pulled the rug
• 32:14
  Speaker 2: out from under them at the last hour and then allowed,
• 32:19
  Speaker 2: after excluding all evidence of abuse, the judge then allowed
• 32:23
  Speaker 2: the DA to argue that they had not provided any
• 32:28
  Speaker 2: evidence and it was an abuse excuse and these kids
• 32:31
  Speaker 2: were just spoiled brats after knowing that he had successfully
• 32:35
  Speaker 2: excluded all of that evidence. Fast forward to Sometime in 2018, 2019,
• 32:43
  Speaker 2: a documentarian, Robert Rand, found a letter that had been
• 32:48
  Speaker 2: written by Eric to his cousin, who's now passed away.
• 32:53
  Speaker 2: And the letter, eight months or nine months prior to
• 32:57
  Speaker 2: the homicides, had been complaining about the abuse at the
• 33:01
  Speaker 2: hands of his father. Then the documentary comes out. where
• 33:07
  Speaker 2: there is evidence that one of the boys, that boy
• 33:12
  Speaker 2: in the menudo man, had also been raped by Jose Menendez.
• 33:16
  Speaker 2: You combine those two together, we're arguing that that's reason
• 33:21
  Speaker 2: enough for a new trial, number one. And number two,
• 33:24
  Speaker 2: there is, as you mentioned also, somebody's doing your homework,
• 33:27
  Speaker 2: maybe it's you, that there is a, it's you, that
• 33:31
  Speaker 2: there's a resentencing glitch here in the law where they
• 33:37
  Speaker 2: are eligible to be resent. So we're moving, we're walking
• 33:41
  Speaker 2: and chewing gum at the same time, going down two tracks. Okay.
• 33:46
  Speaker 1: So just quickly, I interviewed a guy named Daniel Villegas,
• 33:49
  Speaker 1: who also they submitted a writ of habeas corpus. He
• 33:52
  Speaker 1: was able to get a new trial. He was offered
• 33:54
  Speaker 1: an Alford plea. Do Alford pleas come in here or
• 33:57
  Speaker 1: it doesn't work with somebody who's already they are guilty
• 34:00
  Speaker 1: of killing their parents. It's just if they're manslaughter or not.
• 34:05
  Speaker 2: Right. An Alford plea is the federal equivalent of what
• 34:08
  Speaker 2: we have in California, which is called a People vs.
• 34:10
  Speaker 2: West plea. That's a no contest plea. You could do
• 34:13
  Speaker 2: that if they offered it. They have never argued that
• 34:17
  Speaker 2: they didn't do it. They've always argued the mental state.
• 34:21
  Speaker 2: And the mental state is what separates murder from a manslaughter.
• 34:25
  Speaker 2: And the majority of jurors There were two juries in
• 34:29
  Speaker 2: the first case, one for Lyle, one for Eric. The
• 34:32
  Speaker 2: majority of the jurors voted not guilty on murder, meaning
• 34:36
  Speaker 2: they didn't believe the mental state was there. So yes,
• 34:39
  Speaker 2: there could be an Alfred slash People vs. West resolution here,
• 34:43
  Speaker 2: but that's getting ahead of ourselves. Okay.
• 34:46
  Speaker 1: So just quickly, how are you managing their moods in
• 34:50
  Speaker 1: jail right now? How do they think they're going to do?
• 34:54
  Speaker 2: Well, I don't want to reveal attorney claim. You wouldn't
• 34:56
  Speaker 2: want me to do that. So I will just say
• 34:59
  Speaker 2: that I'm putting together mitigation packages, which will go to
• 35:03
  Speaker 2: the DA. And both of them have done impressive work
• 35:07
  Speaker 2: while knowing for over 30 years or maybe 20 years
• 35:11
  Speaker 2: that they had no chance of getting out. So I
• 35:13
  Speaker 2: think that takes volumes to the idea that they are
• 35:20
  Speaker 2: perfect candidates.
• 35:22
  Speaker 1: Okay.
• 35:22
  Speaker 2: All right.
• 35:23
  Speaker 1: Well, I know we're out of time here, so I
• 35:25
  Speaker 1: will ask that maybe once this moves forward and there's
• 35:27
  Speaker 1: more information on it, you would come back. Two last questions,
• 35:30
  Speaker 1: super quick. What case are you the most proud of
• 35:33
  Speaker 1: in your history?
• 35:35
  Speaker 2: That's tough. There's a bunch of them. The case I
• 35:39
  Speaker 2: alluded to where the young man was charged with special
• 35:42
  Speaker 2: circumstance murder, and I ended up getting that dismissed. And
• 35:47
  Speaker 2: then I sued and was able to get him a
• 35:50
  Speaker 2: multi-million dollar settlement. That is one. Susan McDougal, I always say,
• 35:56
  Speaker 2: it changed the course of my career. Susan was the
• 35:58
  Speaker 2: business partner of Bill Clinton, and I defended her during
• 36:02
  Speaker 2: the Whitewater investigation against the Independent Council, and she was
• 36:06
  Speaker 2: acquitted of obstruction of justice in Arkansas and was acquitted
• 36:10
  Speaker 2: in Santa Monica here, of all counts. That's also one
• 36:13
  Speaker 2: that I'm proud of.
• 36:15
  Speaker 1: OK, and who is your most misunderstood client?
• 36:21
  Speaker 2: That's tough. Michael Jackson and to some degree, Chris Brown.
• 36:30
  Speaker 2: So I'll leave it there.
• 36:32
  Speaker 1: OK, I love those answers.
• 36:33
  Speaker 2: Do a dry bike drum.
• 36:36
  Speaker 1: All right, Mark, it's been such a pleasure. Thank you
• 36:39
  Speaker 1: so much.
• 36:40
  Speaker 2: Thank you.
• 36:52
  Speaker 1: Thank you so much for listening to Misunderstood. I'm your host,
• 36:55
  Speaker 1: Rachel Yucatel. Please be sure to subscribe to the show
• 36:58
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• 37:00
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• 37:05
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• 37:08
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• 37:12
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