Latest / Bloomberg Law / Menendez Brothers, Chokehold Trial & Suit Over 'Romeo & Juliet' Scene

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Menendez Brothers, Chokehold Trial & Suit Over 'Romeo & Juliet' Scene · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:11
Speaker 1: I'm going to need you to walk me through what happened.
0:13
Speaker 2: Part of this process is the two of you reconnecting,
0:18
Speaker 2: growing closer as brothers.
0:22
Speaker 3: Eric and I killed our parents together, so I'd say
0:27
Speaker 3: that makes us pretty close. Eric, I know that they
0:32
Speaker 3: would be proud of us.
0:33
Speaker 2: Millions of people watched the Netflix series Monsters, and then
0:38
Speaker 2: Netflix released the documentary The Menendez Brothers. So about three
0:42
Speaker 2: decades after Eric and Lyle Menendez were sentenced to life
0:46
Speaker 2: in prison without parole for the brutal murders of their parents,
0:51
Speaker 2: their case was being talked about again and reframed, with
0:55
Speaker 2: their claims of molest station seeming more compelling to than
1:00
Speaker 2: in the nineties. So now the Menendez brothers can see
1:04
Speaker 2: a path to walking out of prison thanks to the
1:07
Speaker 2: resentencing recommendation of La District Attorney George Gascone.
1:12
Speaker 4: And I do believe that the brothers was subjected to
1:15
Speaker 4: a tremendous amount of ysfunction in the home in molisation.
1:23
Speaker 4: We're very sure, not only that the brothers have rehabilitated
1:28
Speaker 4: and that they will be safe to be reintegrator in
1:30
Speaker 4: our society, but that they have paid their dues not
1:36
Speaker 4: only for the crimes that they committed, because of all
1:39
Speaker 4: the other things they have done to improve the life
1:41
Speaker 4: of so many others.
1:42
Speaker 2: Gascone is recommending that the brothers get a new sentence
1:45
Speaker 2: of fifty years to life, and because they were under
1:48
Speaker 2: twenty six years old at the time of the murders,
1:51
Speaker 2: they'd be eligible for parole immediately. But the brothers have
1:55
Speaker 2: several obstacles ahead before they can walk out of prison.
1:59
Speaker 2: A judge, the parole board, and the governor of California
2:03
Speaker 2: joining me is La. Trial attorney Dave Ring of Taylor
2:06
Speaker 2: Ring the DA said his office was split on the case.
2:11
Speaker 2: The Menendez family is split on what to do. What
2:15
Speaker 2: led to his decision to call for resentencing.
2:19
Speaker 5: There's a lot of factors that go into that. You know,
2:21
Speaker 5: George Gascone came to Los Angeles as a district attorney
2:25
Speaker 5: a few years ago on this platform of being a
2:27
Speaker 5: progressive district attorney, of trying to do away with mass incarcerations,
2:33
Speaker 5: you know, really a big reformer of the criminal process,
2:36
Speaker 5: rehabilitation instead of punishment. That was his platform, and so
2:41
Speaker 5: this case, if you believe George gascon and this was
2:44
Speaker 5: a case where he felt that these brothers had served,
2:47
Speaker 5: you know, thirty five years for a crime that maybe
2:51
Speaker 5: they had some plausible excuse for committing, and he made
2:56
Speaker 5: it public that he felt it was time for them
2:58
Speaker 5: to be re sentenced so that they could be possibly
3:02
Speaker 5: placed on role.
3:03
Speaker 2: The brother's first trial ended in a hung jury, actually
3:06
Speaker 2: two hung juries, because there were two separate juries deciding
3:09
Speaker 2: the case for each brother. What might have made the
3:12
Speaker 2: difference in the second trial where they were convicted.
3:16
Speaker 5: No doubt about it, It was the evidence involving sexual abuse.
3:19
Speaker 5: So in the first trial, which was televised and which
3:23
Speaker 5: was huge news not only Los Angeles but across the country.
3:26
Speaker 5: I mean that was a big trial, there was a
3:28
Speaker 5: lot of evidence that was allowed that the brothers had
3:32
Speaker 5: been allegedly sexually abused by their dad, emotionally and physically
3:37
Speaker 5: abused by both parents, and that that was why they
3:40
Speaker 5: committed this horrific murder of their parents. Two hung juries.
3:44
Speaker 5: So then trial number two, and you know, there was
3:48
Speaker 5: some backlash about that outcome that maybe, you know, somehow
3:51
Speaker 5: they were getting away with these horrible crimes, and so,
3:55
Speaker 5: for whatever reason, the trial court really curtailed the evidence
4:00
Speaker 5: in the second trial, there is very little about being
4:02
Speaker 5: sexually abused, and it really focused on their motivations and
4:07
Speaker 5: all the acts they committed that showed this was a
4:10
Speaker 5: planned murder. And so in the second trial you got
4:14
Speaker 5: two convictions for murder and they were sentenced to life
4:18
Speaker 5: in prison without any possibility for parole, which brings us
4:23
Speaker 5: up to today.
4:24
Speaker 2: Times have change, and the DA sort of referred to
4:27
Speaker 2: this the years, chipping away at the stereotypes that existed
4:32
Speaker 2: more than thirty years ago. Mark Geragos, the lawyer for
4:36
Speaker 2: the brothers, said, if they were the Menendez sisters, they
4:40
Speaker 2: would not be in custody. We have evolved, it is time.
4:44
Speaker 2: How have changing attitudes affected this decision.
4:47
Speaker 5: Our society has absolutely viewed children who are abused in
4:52
Speaker 5: a far far different light than they did thirty or
4:55
Speaker 5: forty years ago, and particularly boys who are being abused,
4:59
Speaker 5: no doubt about, and so that's made a huge role
5:02
Speaker 5: in this decision coming about now that these boys should
5:06
Speaker 5: possibly have the chance to be freed from prison and
5:10
Speaker 5: be placed on prol and come out in the community again.
5:13
Speaker 5: And of course he had all the support of the
5:15
Speaker 5: Netflix shows and other shows that kind of you know,
5:19
Speaker 5: supported their fact that they were abused and they had
5:22
Speaker 5: a plausible excuse for this, and we should forgive them
5:25
Speaker 5: for thirty five years in prison. And he has big
5:28
Speaker 5: celebrities like Kim Kardashian supporting them, and so I think
5:31
Speaker 5: that's a big factor in what brought this about. A
5:34
Speaker 5: huge factor on the flip side, however, that's if you
5:38
Speaker 5: believe they were abused. You brought it up at the
5:40
Speaker 5: beginning of the interview that there's really two factions out there,
5:44
Speaker 5: the faction that thinks they should be released and the
5:46
Speaker 5: ones that think they should stay in prison till they die.
5:48
Speaker 5: And so the reason why there's a big group out
5:51
Speaker 5: there that thinks they should not be released is because
5:53
Speaker 5: if you go back and look at the evidence in
5:55
Speaker 5: these trials, it's a little bit sketchy on the sexual abuse.
5:58
Speaker 5: You know, there's a lot of reasons to believe that
6:01
Speaker 5: this was a made up defense. At the criminal.
6:03
Speaker 2: Trials, there was new evidence that played a part in
6:06
Speaker 2: this as.
6:07
Speaker 5: Well, and that's also the reason why we're here today.
6:11
Speaker 5: And so what came about is really two things.
6:14
Speaker 4: It was an.
6:14
Speaker 5: Allegation a couple of years ago from a former boy
6:18
Speaker 5: band member the band was Menudo, they were big in
6:21
Speaker 5: the eighties and nineties, and he came forward recently and
6:25
Speaker 5: said that he had been sexually abused by the brother's dad.
6:29
Speaker 5: The second piece of evidence was a letter that Eric
6:34
Speaker 5: Mendendez had apparently written months before the murders. He'd written
6:38
Speaker 5: it to his cousin. In the letter, it made mention
6:41
Speaker 5: that he was scared of his dad and the dad
6:43
Speaker 5: was coming into the room at night of molesting him. Now,
6:46
Speaker 5: the thing about the letter was that letter never surfaced
6:49
Speaker 5: ever during the criminal case, and in fact only surfaced
6:53
Speaker 5: I think in twenty fifteen. And so there's questions about
6:57
Speaker 5: that letter as well as to whether or not that
6:59
Speaker 5: letter is truly a letter that was written eight months
7:03
Speaker 5: before the murders, or was it written at some point
7:06
Speaker 5: long after the murders and used for this purpose. A
7:09
Speaker 5: lot of questions, a lot of unanswered questions.
7:12
Speaker 2: The DA stressed the rehabilitation of the brothers and that
7:19
Speaker 2: plays a huge role in deciding on resentencing.
7:23
Speaker 5: It definitely does. And so the LA District Attorney's position
7:26
Speaker 5: on this is that human ends brothers have served close
7:30
Speaker 5: to thirty five years in prison, that they apparently have
7:33
Speaker 5: been model citizens in prisons. They've shown, to some extent remorse,
7:38
Speaker 5: they've never gotten in any trouble in prison, and so
7:42
Speaker 5: his position is, hey, look it's been thirty five years.
7:46
Speaker 5: If they'd been sentenced to fifty years to life, they'd
7:49
Speaker 5: absolutely right now be eligible for parole because they were
7:53
Speaker 5: youthful offenders when it happened. California has a lot it says,
7:57
Speaker 5: if you're a youthful offender, you have a shot at
8:00
Speaker 5: bull after a certain number of years, And that's Gascone's
8:04
Speaker 5: whole platform. His whole platform is, you know, we don't
8:07
Speaker 5: keep people in prison for no good reason if we
8:09
Speaker 5: think they've served a sufficient time and they've somehow been rehabilitated.
8:15
Speaker 2: On that point, critics accuse Gascon of playing politics. He's
8:20
Speaker 2: facing a difficult reelection, trailing his opponent by double digits apparently,
8:26
Speaker 2: and he said that his office was inundated with calls
8:29
Speaker 2: after the Netflix series so much so that they couldn't
8:33
Speaker 2: handle it. So is he playing politics?
8:36
Speaker 5: Well, there's a big crowd out there that thinks he
8:39
Speaker 5: absolutely is playing politics. And their position is this that
8:42
Speaker 5: George Gascone came in to try to change things in
8:46
Speaker 5: Los Angeles. Four years ago, and at least a big
8:50
Speaker 5: part of the community here in Los Angeles thinks he
8:53
Speaker 5: failed miserably, that he's soft on crime, that his policies
8:57
Speaker 5: have made things worse here. So he's up for reelection
9:01
Speaker 5: and he's so far down in the polls that people
9:05
Speaker 5: think he really doesn't have a shot for winning, and
9:07
Speaker 5: so they think that what he did was he had
9:11
Speaker 5: a chance here to garner a whole lot of publicity
9:14
Speaker 5: with this Menendez decision, and this was a chance for
9:17
Speaker 5: him to be covered by every major media outlet and
9:21
Speaker 5: maybe get some goodwill and maybe get some votes. That's
9:24
Speaker 5: the position of why it might be a political decision.
9:27
Speaker 6: At this point.
9:28
Speaker 2: The Menandez brothers still have a long way to go
9:31
Speaker 2: before they can be released from prison. A judge will
9:34
Speaker 2: have to agree with the DA's resentencing recommendation after a hearing,
9:39
Speaker 2: then they'll have to face the parole board, and finally
9:42
Speaker 2: the governor can intervene. What do you think their prospects
9:45
Speaker 2: are for running the gauntlet, so to speak?
9:48
Speaker 5: You know, I think when you take everything into consideration,
9:51
Speaker 5: I think their prospects are pretty good. Because the district
9:54
Speaker 5: attorney that office has backed the resensing. I think when
9:58
Speaker 5: the judge handles this, I think they will be resent
10:01
Speaker 5: and if they're resentenced, they basically eliminate the life without
10:05
Speaker 5: possibility of role part of it. Well, then they're automatically
10:08
Speaker 5: under the law eligible for parole. So then it goes
10:11
Speaker 5: to the parole board and they're going to look at
10:13
Speaker 5: all sorts of factors, and again I think they have
10:16
Speaker 5: a pretty decent shot of having role granted. Then the
10:19
Speaker 5: final step is the Governor of California can veto that decision,
10:24
Speaker 5: and I've seen him do it recently on a big
10:26
Speaker 5: case where the parole board recommended parole for a convicted
10:31
Speaker 5: murderer and despite public pressure, governments and went and vetoed
10:35
Speaker 5: that decision. So it's not a sure thing for the
10:38
Speaker 5: Menendez brothers that they're going to get out, but I
10:41
Speaker 5: think their prospects are looking pretty good. I think they
10:44
Speaker 5: have a strong chance that they'll run the gauntlet and
10:47
Speaker 5: in a few months, maybe three to six months, maybe
10:51
Speaker 5: a little longer, but not a huge amount of time,
10:53
Speaker 5: they could be free men.
10:55
Speaker 2: Thanks so much, Dave. That's LA trial attorney Dave Ring.
11:00
Speaker 2: The next step in the process is a hearing before
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Speaker 2: an LA judge on the DA's re sentencing recommendation. All
11:07
Speaker 2: arguments and evidence will be admitted at that time and
11:10
Speaker 2: the judge will make a decision based on that. Coming
11:13
Speaker 2: up next on the Bloomberg Las Show, the trial of
11:16
Speaker 2: a Marine veteran accused in the choke cold death of
11:20
Speaker 2: a homeless man on a New York City subway car
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Speaker 2: last year. I'm June Grosso and you're listening to Bloomberg.
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Speaker 7: I was scared for myself. When I looked around, I
11:29
Speaker 7: saw women and children. He was yelling in their faces, saying,
11:34
Speaker 7: saying these threats. I couldn't just sit still.
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Speaker 2: Jury's selection began this week in the trial of Daniel Perry,
11:40
Speaker 2: the Marine Corps veteran charged with recklessly causing the death
11:44
Speaker 2: of a homeless man by putting him in a deadly
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Speaker 2: choke hold on a New York City subway train last year.
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Speaker 2: The death of Jordan Neely ignited a firestorm of protests, debate,
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Speaker 2: and division across the city. Was Panny a good samaritan
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Speaker 2: or vigilante? Penny says he was trying to protect himself
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Speaker 2: and the other passengers because Neelie was threatening them.
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Speaker 7: The three main threats that he repeated over and over
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Speaker 7: was I'm going to kill you, I'm prepared to go
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Speaker 7: to jail for life, and I'm willing to die.
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Speaker 2: Joining me is criminal defense attorney Jeremy Salande, a former
12:18
Speaker 2: Manhattan prosecutor. How much of this debate about homelessness and
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Speaker 2: mental illness and safety on the subway? How much will
12:27
Speaker 2: that bleed into the trial?
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Speaker 1: These are issues that are biggest hit home for many
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Speaker 1: New Yorkers. But what happens outside the courtroom should remain
12:33
Speaker 1: outside the court. What happens inside the courtroom should be
12:36
Speaker 1: regulated by the four corners of the law. I would
12:39
Speaker 1: not expect that any of it should come into the trial.
12:42
Speaker 1: The question is not what Jordan Neely did or didn't
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Speaker 1: do eight weeks, once and years before a criminal record
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Speaker 1: of the health builders being homeless in that moment in time,
12:51
Speaker 1: In that moment in time, was Dan Penny justified and
12:55
Speaker 1: taking action to subdue Jordan Neeli and ultimately causes death,
13:00
Speaker 1: money recklessly and management has the legs by the prosecutors.
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Speaker 2: There's a four minute video of Penny pinning Neely to
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Speaker 2: the ground and placing him in a choke hold while
13:11
Speaker 2: two other passengers helped to restrain Neely and both sides
13:15
Speaker 2: say they're going to use that, How will they use
13:17
Speaker 2: it differently?
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Speaker 1: Well, you know, I think that the defensive term to
13:21
Speaker 1: try to show that what Penny did was very reasonable
13:24
Speaker 1: in that moment and he's holding and pinning this individual
13:27
Speaker 1: to the ground, and you know there's other people who
13:29
Speaker 1: are helping him do something because they're equally concerned about
13:32
Speaker 1: the volatility of the immediate presence bones or that not
13:36
Speaker 1: threat on lives of people on the subway. Whereas the
13:39
Speaker 1: prosecution is going to show a guy who is subdued
13:42
Speaker 1: and the hold around the neck in the true hold
13:44
Speaker 1: and probably concentrate more on that which, ultimately, if you
13:48
Speaker 1: believe in their theory, and they proved me on a
13:49
Speaker 1: reasonable about cause him to lose consciousness and ultimately pass
13:53
Speaker 1: sitting aside whether or not law enforcement did CPR and
13:56
Speaker 1: should have done CPR. So it's the same video, obviously,
13:59
Speaker 1: But what is he going to try to demonstrate it
14:01
Speaker 1: was reasonable in the moment. The other words, we're going
14:03
Speaker 1: to try to demonstrate it was agrigent, reckless, and beyond
14:05
Speaker 1: the panel.
14:06
Speaker 2: If you will nearly reportedly had mental health and drug
14:09
Speaker 2: addiction issues. Will the defense be allowed to bring in
14:13
Speaker 2: his psychiatric history and the fact that synthetic cannabinoids known
14:19
Speaker 2: as K two were found in his system.
14:22
Speaker 1: First of all, Max Wiley and Judge Wiley's has been
14:25
Speaker 1: around the block in terms of the criminal and criminal
14:28
Speaker 1: justice for years. He was actually my deputy chief when
14:30
Speaker 1: I was a prosecutor, and it's been on the bench
14:32
Speaker 1: a long time. I trust it he'll make the right call.
14:35
Speaker 1: And in this particular case, I think you have to
14:37
Speaker 1: setify the noise. And again, not looking at his criminal history,
14:41
Speaker 1: not looking at his mental health issues, was it relevant
14:43
Speaker 1: in that moment to the determination and the reasonable person analysis,
14:47
Speaker 1: if you will, of Daniel Penny when he observed this
14:51
Speaker 1: man throwing down his jacket saying something along the lines
14:53
Speaker 1: of I don't care if I go to jail or
14:55
Speaker 1: whatever you might have said, and the reaction of people,
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Speaker 1: So you have to limit it because you can't twist
15:01
Speaker 1: the jury and provide evidence that is not relevant instead
15:04
Speaker 1: of determination and decision making. Daniel Penny didn't know about
15:08
Speaker 1: the prior history. Daniel Penny didn't know about the mental illness,
15:11
Speaker 1: the K two cause, and really there act in a
15:13
Speaker 1: certain way, maybe that could be relevant, but what did
15:16
Speaker 1: people see? What does the video show and demonstrate and
15:19
Speaker 1: what happened in that moment is really important factor.
15:21
Speaker 2: Not days weeks, months before, the Medical Examiner's office found
15:27
Speaker 2: that he died from compression to his neck as a
15:29
Speaker 2: result of the choke hold and the manner was homicide.
15:32
Speaker 2: The defense said it's going to attack the emmy's report
15:36
Speaker 2: and bring up potential other causes of Neelie's death, including
15:41
Speaker 2: high levels of K two in his bloodstream. That usually
15:44
Speaker 2: works in movies. Does it work in the courtroom.
15:46
Speaker 1: It can work in the courtroom. I don't necessarily believe
15:49
Speaker 1: the cakes was relevant to the reaction and behavior of
15:52
Speaker 1: long A Penny, but it can absolutely be relevant to
15:54
Speaker 1: try to establish that the K two may have been
15:57
Speaker 1: that proximate natural cause of death to Jordanneeling, and I
16:01
Speaker 1: assume we'll have an expert to try to establish this.
16:04
Speaker 1: I believe that big concern here is you have to
16:07
Speaker 1: make sure that you separate those jurors who have preconceived notion,
16:10
Speaker 1: whether it's race, whether it's politics, whether it's some way safety,
16:13
Speaker 1: take them out of the equation so that that jury
16:16
Speaker 1: objectively analyzes the evidence that's presented in that courtroom. So
16:21
Speaker 1: it does work it absolutely can work. It's not an
16:23
Speaker 1: easy task or an easy lift, especially with such a
16:26
Speaker 1: charged case. From the emotional perspective.
16:28
Speaker 2: Both sides are going to call witnesses who are on
16:31
Speaker 2: the train, and it appears that their level of concern
16:35
Speaker 2: about Neely's behavior varied. Some said they were afraid, others
16:40
Speaker 2: said no, they see this all the time on the subway.
16:43
Speaker 2: How important are their accounts?
16:45
Speaker 1: The words that the user are going to be critically
16:47
Speaker 1: important because that video only shows section in time. It
16:50
Speaker 1: doesn't show that imminent threat because remembered by law, there
16:54
Speaker 1: needs to be that imminent threat of that serious physical
16:56
Speaker 1: injury or death even to allow for the justification defense
17:00
Speaker 1: or self defense if you will yourself or other people.
17:03
Speaker 1: So beyond that video, how do these people perceive those moments?
17:07
Speaker 1: How do they react? And I'd be very concerned, as
17:10
Speaker 1: Daniel Penny's counsel and Daniel Penny personally, if witnesses are
17:14
Speaker 1: going to call up and say, you know what, you
17:16
Speaker 1: see this all the time, You put your head down.
17:18
Speaker 1: I'm a New Yorker, I've been around the block, I'm
17:20
Speaker 1: ridden these subways later at night, you just ignore that
17:22
Speaker 1: moment and the thread if he will goes away. Because
17:25
Speaker 1: remember too, it's not about just being scared or nervous
17:28
Speaker 1: or anxious. It's not a canvas or textansponder of riding
17:31
Speaker 1: the New York Subway photo or a real New York
17:35
Speaker 1: standard or just a reasonable standard. What was observed in
17:38
Speaker 1: the moment. So the words and the specificity of why
17:41
Speaker 1: and how they believe that they were physical or serious
17:44
Speaker 1: physical danger in a death. That's so important, so important,
17:48
Speaker 1: not just that I'm scared.
17:50
Speaker 2: What about the fact that he was a trained marine?
17:53
Speaker 2: Does that come in?
17:54
Speaker 1: It very well can come in if there is evidence
17:57
Speaker 1: that he knew and was a where this type of
18:00
Speaker 1: choke hold and how to apply it and use it,
18:03
Speaker 1: and the potential consequences of it, because remember, you know
18:07
Speaker 1: it's not an intentional climate. But did he know of
18:09
Speaker 1: these risks? Jordan Eily and then he just really ignored
18:13
Speaker 1: those risks? Was there a substantial likelihood or risk that
18:16
Speaker 1: his actions were going to cause another person's death and
18:18
Speaker 1: he ignored it? And if Daniel Penny was aware and
18:21
Speaker 1: knew and had that skill, fit I believe that I
18:23
Speaker 1: should come in. It should be know.
18:24
Speaker 2: What does a prosecution need to prove to get a
18:26
Speaker 2: manslaughter conviction.
18:28
Speaker 1: When you're child of man's daughter in the second degree,
18:31
Speaker 1: when the prosecution has to igomige is that you recklessly
18:34
Speaker 1: cause the death to another person. Reckless is that standard,
18:37
Speaker 1: whereas criminally negligent, and that's the lower felony, that's the
18:41
Speaker 1: class efelony that when you commit these acts, you failed
18:45
Speaker 1: to sort of perceive that there was this real, substantial
18:48
Speaker 1: risk that your actions would cause that other person's death.
18:52
Speaker 1: So the recklessness is different, and it's more severe than
18:55
Speaker 1: the lesser, if you will, of criminal negligence.
18:58
Speaker 2: So the question looming over the trial, like every trial, basically,
19:03
Speaker 2: is whether he's going to testify himself, and one of
19:07
Speaker 2: his lawyers said he'd be a great witness. We anticipate
19:10
Speaker 2: that he will, but that will depend on how the
19:12
Speaker 2: trial goes. Does he almost have to take this stand
19:15
Speaker 2: to explain his state of mind at the time.
19:19
Speaker 1: Defense attorneys such as myself, we don't always show our
19:21
Speaker 1: cards like the prosecution does at this point in the
19:24
Speaker 1: trial process. A lot of this hinges on that witness testimony. Yes,
19:28
Speaker 1: that video was important, but I think that video can
19:30
Speaker 1: work against Daniel Penny too, because you know, if somebody's
19:34
Speaker 1: quote unquote squirming as was used in the terminology by
19:36
Speaker 1: Daniel Penny, and that's not a favorable term. And for
19:39
Speaker 1: all those minutes to hold that person there, what are
19:42
Speaker 1: these witnesses going to say? Are they going to articulate
19:45
Speaker 1: how and why they're feel for for their life to
19:48
Speaker 1: their physical safety, Because if they don't, then Daniel Penny
19:51
Speaker 1: has to testify. If they do and it's clear of
19:54
Speaker 1: this imminent threat danger, then maybe Daniel Penny doesn't. But
19:58
Speaker 1: I would expect him to. OU expect he will testify
20:01
Speaker 1: because he probably will come across as a sympathetic person,
20:05
Speaker 1: not trying to attention the hurt another man, but doing
20:08
Speaker 1: what he thought was the right thing in that moment.
20:10
Speaker 1: True or not, that's the jury to decide, but I
20:13
Speaker 1: would expect that he would testify.
20:15
Speaker 2: Police interviewed him on the day that Neely died, but
20:19
Speaker 2: then released him. That was criticized by some elected officials
20:24
Speaker 2: and protesters demanded that Canny be arrested. Will that come in.
20:31
Speaker 1: So issues of statements that are made, whether you're in
20:34
Speaker 1: custody and it's an interrogation as a matter of law,
20:37
Speaker 1: those issues have already been litigate. It could very well
20:39
Speaker 1: come in, and I would expect it to come in
20:42
Speaker 1: that she was questioned and arrested only after the fact,
20:45
Speaker 1: because the prosecution wants to tell a complete story. They
20:47
Speaker 1: don't want to seem like they're hiding the ball and misrepresenting.
20:50
Speaker 1: They want to explain why that occurs. Because if I'm
20:53
Speaker 1: the defense, I want to seize on that and say,
20:55
Speaker 1: you guys, didn't arrest me initiative, Look at only because
20:58
Speaker 1: there's political pressure because of his outside voices and the
21:01
Speaker 1: issues of race and the issues of subway safety and politics.
21:04
Speaker 1: Did my client get arrested? And that's not just or justice.
21:07
Speaker 1: So I would expect to come in with both sides
21:10
Speaker 1: clients to rationalize a reason why. And I will say
21:13
Speaker 1: that this is not incredibly atypical. Certainly most people are
21:17
Speaker 1: arrested in a moment, but there are times that not
21:19
Speaker 1: only does the NYPD not make an arrest initially, there
21:23
Speaker 1: are also times when prosecutors offices do what's called a
21:26
Speaker 1: DP or a decline to prosecute a case even after
21:30
Speaker 1: the process has started, for further investigation or to later
21:33
Speaker 1: make an arrest. So this is not necessarily typical, but
21:36
Speaker 1: it's not atypical either.
21:37
Speaker 2: So what kind of juror are you looking for if
21:40
Speaker 2: you're the prosecutor, and what kind if you're the defense.
21:44
Speaker 1: Starting with the prosecution, I'm looking for in real New Yorker,
21:48
Speaker 1: which is the opposite of what the defense is looking for.
21:52
Speaker 1: I don't want my Florida, Texas, California, Iowa, trans I'm
21:56
Speaker 1: not looking for the guy or gal who's been around
21:59
Speaker 1: the block once because they had to walk to school
22:02
Speaker 1: or their new job and they're so excited to be
22:04
Speaker 1: in the big city, you know, bright eyed and excited,
22:07
Speaker 1: or maybe mom and dad are paying the rents. That's
22:10
Speaker 1: the person that the defense wants, because the defense wants
22:12
Speaker 1: that overreacting individual who is not familiar with the subway life,
22:16
Speaker 1: is not familiar with quote unquote goffing. Manhattanites are very
22:20
Speaker 1: very different who rid in that subway and live their
22:22
Speaker 1: lives to better temper jur that we would expect the
22:26
Speaker 1: prosecution to want to take, you know, to put your
22:28
Speaker 1: head down, walk away, This too shall pass.
22:30
Speaker 2: Would you rather be the prosecutor here or the defense attorney?
22:33
Speaker 1: If I had to take a side, which really sounds
22:35
Speaker 1: awkward saying that, because this is such a tragic case
22:38
Speaker 1: of matter of rest but if I had to take
22:40
Speaker 1: a side from a legal perspective, I would want to
22:42
Speaker 1: work aside of the prosecution. I think this is an
22:45
Speaker 1: uptill climent to what I have seen. Granted to process
22:48
Speaker 1: percent every single person, every single time, and the process
22:52
Speaker 1: hasteone its course, will see the evidence. But that video
22:56
Speaker 1: is not some overwhelming piece of evidence that would say,
22:59
Speaker 1: oh my gosh, you know, was it backless or languaging?
23:02
Speaker 1: Remember attentionally and those witnesses on the subway. From what
23:05
Speaker 1: I have read, there's nothing so overwhelming, Oh my gosh,
23:08
Speaker 1: you know, if you've ridden the subway in New York,
23:11
Speaker 1: this happened. This happened. It's terrible. It's sad in terms
23:15
Speaker 1: of people having episodes or manic episodes, or misbehavior or
23:19
Speaker 1: even getting aggressive and violent. But that's something we see,
23:23
Speaker 1: and I would not want to be on the side
23:25
Speaker 1: of Daniel Petty. But let the jury decide that. Let's
23:27
Speaker 1: flip through process from course.
23:29
Speaker 2: After five days of jury selection, not a single juror
23:32
Speaker 2: has been seated yet, and interestingly, the judge has decided
23:38
Speaker 2: that the jury will remain anonymous due to threats made
23:42
Speaker 2: to the prosecution and defense. The trial itself is expected
23:46
Speaker 2: to take six weeks. Thanks so much for joining us
23:49
Speaker 2: on the show, Jeremy. That's criminal defense attorney Jeremy Salande
23:54
Speaker 2: coming up next on The Bloomberg Law Show. The stars
23:57
Speaker 2: of the critically acclaimed Franco Zepharelli movie Romeo and Juliet
24:02
Speaker 2: file lawsuits more than fifty years after the film's release
24:06
Speaker 2: over underage nude scenes. I'm June Grosso and you're listening
24:10
Speaker 2: to Bloomberg.
24:13
Speaker 7: The World's most Enduring love story is the motion picture
24:17
Speaker 7: to be seen forever.
24:19
Speaker 3: Romeo and Juliet.
24:21
Speaker 6: Starring Leonard Whiting on Olivia Hussey as.
24:23
Speaker 5: The star Cross lovers.
24:26
Speaker 6: Oh ruyo Romio, wea Rulia.
24:33
Speaker 2: It was the first time those famous lines were spoken
24:36
Speaker 2: on screen by a teenager around Juliet's age. Franco Zephyrelli's
24:42
Speaker 2: nineteen sixty eight film is considered one of the best
24:45
Speaker 2: screen versions of Shakespeare's Romeo and Juliet, but a brief
24:49
Speaker 2: nude scene with Olivia Hussey and Leonard Whiting, the two
24:53
Speaker 2: real life teens playing the star Cross lovers, is still
24:57
Speaker 2: causing controversy today. Hus thee in widing suit Paramount Pictures
25:02
Speaker 2: fifty four years later, claiming the scene amounted to child
25:06
Speaker 2: pornography and alleging they were duped by Zephyarelli into appearing nude.
25:11
Speaker 2: Judges have dismissed two versions of their lawsuit and they
25:14
Speaker 2: say they're going to appeal. Joining me is intellectual property
25:18
Speaker 2: litigator Terrence Ross a partner Katon Muchen Rosenman Terry tell
25:22
Speaker 2: us about the background of this lawsuit.
25:24
Speaker 6: This is all rising out of a movie version of
25:28
Speaker 6: Romeo and Juliet that Franco Zephyrelli, one of the great
25:31
Speaker 6: film directors of all time, wrote and directed. It was
25:35
Speaker 6: filmed in nineteen sixty seven, released in nineteen sixty eight,
25:38
Speaker 6: so it's quite old. It was a critical hit, received
25:42
Speaker 6: four Oscar nominations. It was a financial hit. Against the
25:45
Speaker 6: budget about eight hundred and fifty thousand dollars in North
25:47
Speaker 6: America alone, they made fourteen point five million and made
25:50
Speaker 6: quite a bit in the UK and Europe as well,
25:52
Speaker 6: so by all measures, it was a hit. And what
25:54
Speaker 6: really attracted people to it was it was the very
25:56
Speaker 6: first film or stage version that had actually used teens
26:00
Speaker 6: as Romeo and Juliet as William Shakespeare intended to be used.
26:03
Speaker 6: If you remember the play Romeo and Juliet are like
26:06
Speaker 6: fifteen and sixteen, so Zephyrelli cast Olivia Hussey who was
26:11
Speaker 6: sixteen at the time of filming as Juliet, and Leonard
26:14
Speaker 6: Whitting as Romeo, who was seventeen at the time of filming,
26:18
Speaker 6: and obviously both of them were underage miners. And in
26:23
Speaker 6: seeing in Act three that takes place in Juliet's bedroom,
26:27
Speaker 6: we see Olivia Hussey's bear breasts and Leonard Whitting's bear buttocks.
26:32
Speaker 6: Neither of them are particularly long camera shots, but they
26:35
Speaker 6: are there. The actors were paid about twenty two hundred
26:38
Speaker 6: dollars in nineteen sixty seven money for the entire film.
26:41
Speaker 6: Olivia Hussey went on to have solid career in not
26:44
Speaker 6: top tier in later years, did a lot of voiceover work,
26:48
Speaker 6: and Leonard Whitting had not much of a career thereafter,
26:51
Speaker 6: had a few parts, but sort of drifted off into obscurity,
26:54
Speaker 6: and indeed, on multiple occasions wrote to the studio saying
26:58
Speaker 6: he really should be paid more money for his work
27:01
Speaker 6: on Romeo and Juliet, which he was not. And so
27:04
Speaker 6: that's the background to where we are.
27:06
Speaker 2: What were the grounds of their first suit against Paramount
27:10
Speaker 2: More than a half century after the film came out.
27:14
Speaker 6: So the gravemen of the suit was that this nude
27:17
Speaker 6: scene amounted to sexual abuse. The actual lawsuit, filed in
27:22
Speaker 6: late twenty twenty two in Santa Monica Superior Court. Ooking mind,
27:25
Speaker 6: this is a California state court, had seven causes of action,
27:29
Speaker 6: and listeners unfamiliar with California litigation may go, what that happen?
27:33
Speaker 6: But this is the way litigation works in California. You
27:36
Speaker 6: toss in, you know, all these what I call make
27:39
Speaker 6: weight causes of action on top of what really matters.
27:42
Speaker 6: So the first count was for sexual harassment. Then they
27:45
Speaker 6: had a claim for fraud, a claim for childhood sexual abuse,
27:50
Speaker 6: a claim for appropriation of likeness. It's a very trendy
27:53
Speaker 6: cause of action these days, cause of action for intentional affliction,
27:56
Speaker 6: emotional harm, cause action for negligence, and bizarre claim for
28:00
Speaker 6: unfair business practices. And the lawsuits sought one hundred million
28:04
Speaker 6: dollars cross punitive damages. But the grabman of the compline,
28:07
Speaker 6: as you say, was really these nude scenes, and when
28:10
Speaker 6: using miners in such nude scenes, what does that amount
28:14
Speaker 6: to at law? And so set aside the causes of
28:16
Speaker 6: action that's what this lawsuit was about.
28:19
Speaker 2: And they claimed that they were sort of forced into
28:23
Speaker 2: doing the scene.
28:24
Speaker 6: Yeah, exactly. They claimed they were told by Zephyrelli at
28:27
Speaker 6: the outset of the film that there would be no nudity.
28:30
Speaker 6: The actual scene involving the nudity was filmed secretly. The
28:35
Speaker 6: parents of the two miners did not know about it,
28:38
Speaker 6: did not know it had happened until after it was filmed.
28:41
Speaker 6: These things raised some suspicions in your mind. And apparently
28:45
Speaker 6: Zephyrelli was in sort of a creepy way hanging a
28:50
Speaker 6: battle of the hussy, making comments about her breath, and
28:52
Speaker 6: it is very sort of creepy behavior on set during
28:56
Speaker 6: the scene. Although I Hasten also say that neither actor
28:59
Speaker 6: has ever criticized Franco Zepharelli since then over this, and
29:04
Speaker 6: he was not a defendant lawsuit. He passed away in
29:07
Speaker 6: twenty nineteen anyway, But even in the press relations surrounding
29:11
Speaker 6: the lawsuit, they were not critical of him in any way,
29:14
Speaker 6: which is also sort of odd.
29:15
Speaker 2: Did this fifty four year gap play a part in
29:19
Speaker 2: the dismissal of the first lawsuit?
29:21
Speaker 6: So California In the last few years passed a special
29:24
Speaker 6: law that temporarily suspended the statute of limitations in child
29:29
Speaker 6: sex abuse cases. Statute of limitations is sort of a
29:33
Speaker 6: deadline by which you file your lawsuit. The public policy
29:37
Speaker 6: reason behind it is that memory fade, evidence gets lost.
29:39
Speaker 6: It's really unfair to inflict upon a defendant a lawsuit
29:43
Speaker 6: for something that happened more than a certain number of
29:45
Speaker 6: years ago. Given all that has happened in the last
29:48
Speaker 6: few years with the Me Too movement, California passed this
29:50
Speaker 6: law debt for a short period time allowed victims of
29:53
Speaker 6: child sexual abuse to file against or suspended the statute
29:57
Speaker 6: of limitations. So what happened here then was they saw
30:00
Speaker 6: this opportunity and together Luis Hussey and Leonard winning all
30:04
Speaker 6: those peers that Witting was the prime mover in this lawsuit,
30:08
Speaker 6: fab a lawyer and filed this lawsuit.
30:10
Speaker 2: And why did a judge dismiss the lawsuit in May
30:14
Speaker 2: of twenty twenty.
30:14
Speaker 6: Three, So Paramount Pictures filed what is called an anti
30:19
Speaker 6: slap motion. It is essentially a law that was put
30:23
Speaker 6: in place but California and has been adopted by a
30:24
Speaker 6: lot of other states since then that protects creators and
30:28
Speaker 6: also citizens against having their First Amendment rights chilled through litigation.
30:34
Speaker 6: So citizen starts complaining about a developer and what they're
30:39
Speaker 6: doing poisoning the environment. Perhaps the developer brings a lawsuit
30:42
Speaker 6: against that citizen and that coerces them into shutting up. Well,
30:47
Speaker 6: this was a way a mechanism for getting rid of
30:49
Speaker 6: such lawsuits so as to protect First Amendment free speech,
30:53
Speaker 6: and so Paramount filed that motion, and May twenty twenty three,
30:57
Speaker 6: the judge in Santa Monica granted that and dismissed the
31:00
Speaker 6: lawsuit in its entirety. She made a number of important
31:05
Speaker 6: factual findings to get there. Probably the most important, and
31:10
Speaker 6: I'll try to quote exactly from the decision here, she
31:13
Speaker 6: found that this bedroom scene in Act three was quote
31:16
Speaker 6: not sufficiently sexually suggestive close quote to be able to
31:22
Speaker 6: invoke the temporary suspension of the Statute of limitations. In essence,
31:28
Speaker 6: she's saying, this wasn't sexual abuse or sexual harassment or
31:32
Speaker 6: taking advantage of a minor given what was actually on
31:35
Speaker 6: the film. And therefore she said the statute of limitations applied,
31:39
Speaker 6: and she tossed out the lawsuit. Now there was a
31:43
Speaker 6: whole second layer to this, which is the actors had
31:46
Speaker 6: signed consent contracts at the time their parents had signed
31:51
Speaker 6: along with them, because as a minor, you're technically not
31:55
Speaker 6: held to any contract you saw. And the judge went on,
31:58
Speaker 6: is to find that even if you tossed out those
32:01
Speaker 6: consents from back in nineteen sixty seven, the behavior of
32:05
Speaker 6: the two actors subsequently once they became adults at age eighteen,
32:10
Speaker 6: constituted ratification of contracts. And she pointed out to numerous
32:15
Speaker 6: instances in which critics had attacked over time this particular
32:19
Speaker 6: scene with the nudity, and both Olivia Hussey and Leonard
32:23
Speaker 6: whitting had descended the scene and said it was perfectly
32:26
Speaker 6: appropriate and had defended Zephyrelli for including it in the movie,
32:29
Speaker 6: and that the judge found to be very curious behavior
32:33
Speaker 6: and said that as a legal matter, constitute ratification of
32:36
Speaker 6: the consent contracts, even if they had been miners at
32:39
Speaker 6: the time.
32:39
Speaker 2: But they filed a new lawsuit in February of this
32:44
Speaker 2: year because there had been a re release of the
32:46
Speaker 2: film in twenty twenty three.
32:48
Speaker 6: You won't like all the movies nowadays, movies are worth
32:50
Speaker 6: or anything. A company called Criterion Collection brought out a
32:54
Speaker 6: digitally enhanced DVD that restored the film air quotes around
32:58
Speaker 6: restored and really that, and so a smart lawyer said, well,
33:03
Speaker 6: this restarts the statute of limitations. In February twenty twenty three,
33:08
Speaker 6: refiled the same causes of action mostly and again Paramount
33:12
Speaker 6: Pictures filed a motion to dismiss, and again the judge said, no,
33:16
Speaker 6: this re release may be digitally restored, but it's not
33:21
Speaker 6: in any significant way different, particularly with respect to the
33:25
Speaker 6: bedroom scene. And therefore you're stuck with the statute of
33:29
Speaker 6: limitations date from back in nineteen sixty seven. And I'm
33:33
Speaker 6: going to dismiss this lawsuit again on the same grounds
33:37
Speaker 6: as before. And apparently the plaintiffs are going to take
33:41
Speaker 6: an appeal of this, and there's lots to take an
33:44
Speaker 6: appeal with, but I think that that is going to
33:47
Speaker 6: be the most interesting part of the appeal. Whether or
33:50
Speaker 6: not a digital re release constitutes a restart of the
33:54
Speaker 6: statute limitation.
33:55
Speaker 2: What are some of the other appellate issues they might raise.
34:00
Speaker 6: We're going to argue that the nude bedroom scene actually
34:03
Speaker 6: does constitute child abuse, verging on child pornography. That's going
34:09
Speaker 6: to be challenging because the judge here made a fact
34:12
Speaker 6: finding that it was not sexually suggestif in sufficient manner
34:17
Speaker 6: to violate the law. Trialcourt judge's fact findings are granted
34:21
Speaker 6: great deference on appeal, and in order for the appellate
34:25
Speaker 6: court to get around that, they would have to say
34:29
Speaker 6: the fact finding was out of the realm of reasonable possibility,
34:33
Speaker 6: and that almost never happened. And when it does, it
34:35
Speaker 6: usually means that the judges made a grievous mistake, usually
34:39
Speaker 6: a mistake that just didn't understand the record. That's not
34:43
Speaker 6: the mistake being alleged here. On appeal, the plaintiffs will
34:46
Speaker 6: say that she just got it wrong, subjectively got it wrong,
34:50
Speaker 6: and that is going to be a hard argument to
34:53
Speaker 6: make to the appeled court.
34:54
Speaker 2: I understand legally why the suits were dismissed, but something
34:58
Speaker 2: does seem wrong here. I mean, they were minors doing
35:02
Speaker 2: a nude scene that they didn't know about before, and
35:06
Speaker 2: their parents didn't know about before, and what's pornographic? Shouldn't
35:10
Speaker 2: that be something decided by a jury rather than one judge.
35:14
Speaker 6: I think it's a very hard thing to decide. I
35:16
Speaker 6: think what is even harder is to put yourself back
35:20
Speaker 6: in time to nineteen sixty seven. And try to understand
35:26
Speaker 6: what would constitute child abuse under the statute. And there's
35:30
Speaker 6: the famous comment from an injustice White, how do you
35:33
Speaker 6: decide of his pornography? He said, I know it when
35:36
Speaker 6: I see it, which is not much of a standard.
35:38
Speaker 6: This is not, strictly speaking, a case of pornography. It's
35:42
Speaker 6: just whether or not this was sexual abuse sufficient to
35:45
Speaker 6: suspend the statute of limitations. Now, one of the facts
35:49
Speaker 6: that came out that a film sort of shocked by
35:53
Speaker 6: is the Motion Picture Association of America apparently gave this
35:56
Speaker 6: a PG rating when it first came out. I don't
35:59
Speaker 6: know what the rating is now on the re release,
36:01
Speaker 6: or even if they rate re releases, but you know,
36:03
Speaker 6: that sort of argues at the time people didn't think
36:06
Speaker 6: much of this scene, and as I said at the beginning,
36:08
Speaker 6: these were sort of fleeting glimpses. You know. That would
36:10
Speaker 6: seem to strike me as a pretty strong factual indication
36:14
Speaker 6: of what people thought back in nineteen sixty seven. In
36:17
Speaker 6: nineteen sixty eight about the scene, the critics really focused
36:22
Speaker 6: on the fact that this was the first time ever
36:24
Speaker 6: in a film or stage version outside of high school,
36:27
Speaker 6: but a major production of Rummy and Juliet where they
36:30
Speaker 6: had used team and they just didn't then make the
36:33
Speaker 6: jump to yeah, but you had naked teams. They were, oh,
36:37
Speaker 6: this is brilliant Franco's ever early. I will say this, June, dummy,
36:40
Speaker 6: your instinct is bought on about our contemporary reaction to this.
36:45
Speaker 6: Something doesn't feel right at your gut level about him
36:49
Speaker 6: doing this, So he's dead. He can't rebut this. But
36:52
Speaker 6: telling them that there wasn't going to be a nudity,
36:55
Speaker 6: then doing this, doing it a separate scene all by itself,
36:59
Speaker 6: without the parents on set, not ever having told them,
37:02
Speaker 6: sort of secretly filming it. Now, the rebuttal argument could be, well,
37:05
Speaker 6: you wanted to take an account sensitivity the actors as
37:08
Speaker 6: they do nowadays, and you have you empty out the
37:10
Speaker 6: set for the most part, and that may have been it,
37:13
Speaker 6: but you know, nowadays we have intimacy coordinators for any
37:16
Speaker 6: scenes that involve the smallest man nudity. None of that
37:20
Speaker 6: was present back then. And these were teenagers, and they
37:24
Speaker 6: talked about the problems they had memalin coping with this
37:28
Speaker 6: as teens having people watch them in this way. And
37:31
Speaker 6: so that's why I mean, I think your gut instinct
37:33
Speaker 6: to is exactly right. It just doesn't sound right. Whether
37:36
Speaker 6: or not that's a lawsuit, I don't know.
37:39
Speaker 2: I guess we'll see what the appellate court thinks about it.
37:42
Speaker 2: Thanks so much, Terry. That's Terrence Ross of Catain Muchen Rosenman.
37:46
Speaker 2: And that's it for this edition of the Bloomberg Law Podcast.
37:49
Speaker 2: Remember you've ben always get the latest legal news by
37:52
Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify,
37:56
Speaker 2: and at Bloomberg dot com, slash podcast, Slash Law. I'm
38:00
Speaker 2: June Grosso, and this is Bloomberg