December 6, 2024 • 29 mins
Famed criminal defense attorney Mark Geragos is joined by Juliette to dig into some of the most buzzed about court cases right now, including the Menendez Brothers, Scott Peterson and Hunter Biden. He breaks down how the media and TikTok have influenced the public's curiosity.
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Episode Transcript
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Speaker 1 (00:10):
All right, well, welcome to Going Rogue. It's Juliet and
today I am joined by somebody that I really admire
and I'm very excited to speak to. You would know
him as one of the most well known, high profile
attorneys out there and the managing partner of Gegos and Garagos.
Please let's welcome Mark Geragos.
Speaker 2 (00:30):
How are you today? I'm doing great? Thank you.
Speaker 1 (00:34):
In addition to the questions that I'm going to ask,
the way that I'm approaching things is a little bit differently.
So everybody that I'm sure you're interviewing with is very straightforward,
what's happening with this, what's happening with that. I'm kind
of interested in how the media of it all fits in,
and you, in your own right, having been a host
in media personality and then you use media throughout the
(00:58):
legal process. So that's kind of what I'm trying to
achieve here. So my questions are going to be a
little bit more peppered in that direction.
Speaker 2 (01:04):
So, for example, I love talking about it. I love that.
I love that.
Speaker 1 (01:09):
So let's dig right into. Obviously, something that's very high
profile and out there right now is the Menendez brother case.
Anything that you can in general tell us what's sort
of the update right now?
Speaker 2 (01:21):
Well, I think part of the update on Menendez brothers.
I think the most consequential thing since the last court appearance,
which wasn't that long ago. The last court appearance, what
nobody really reported on, speaking of media, is there was
a wall to wall coverage of the fact that the
(01:43):
former now former as we record this, DA, George Gascon,
had initiated what's called a resentencing process. Under California law,
you can re sentence under the Code sections and clearly
Lyle and Eric qualify for resentencing, and the DA did that.
Then what happened was is that he did that prior
(02:06):
to the election. Then a new DA was elected, and
there has been a number of developments, but just yesterday,
as we record this today, the new DA was sworn in.
And to some degree I enjoyed some of his remarks
yesterday because he's been asked repeatedly since he has won
(02:28):
the election, not what his new policies are, not what
the what you plan on doing, how are you going
to revamp the office? Every question on every program that
I see is what are you going to do about Menendez?
And he gave me a very good answer, I thought.
Yesterday after the swearing in which was done by former
Governor Arnold Schwarzenegger, he said that he was going to
(02:51):
use Menendez as a teachable moment, which I think is
interesting because I as somebody who has been around the
criminal justice system going into my fifth decade, it is
a teachable moment in this sense. You have a case
that garnered wall to wall attention. It kind of sparked
the birth of Court TV. It was prior to OJ
(03:14):
was trial number one of the Menendez case and that
was covered Wallda Wall in the first case ended in
a Hume jury, and Leslie Abramson was showcased as the
defense lawyer for Eric in the first trial, and she
was one of my one of the I don't know
if mentors too strong, but certainly every lawyer in the
(03:34):
eighties and the nineties coming up in LA knew of
Leslie and her accomplishments in her courtroom style. And now
we fast forward, we're now talking about Menendez thirty five
years later because for a variety of reasons, and not
the least of which has been the what I call
(03:55):
the TikTok army and the TikTok Army kind of viewed
the case through a new prism, and it's interesting to me.
It's fascinating to me. And I know people have said
or made the argument that why is this all of
a sudden a renaissance or rebirth. Part of that, I
think is the culture has changed, okay.
Speaker 1 (04:18):
Fair enough, and actually to expand upon that. So what
role does the media play in all this right now?
Because I look at you know, the from the documentaries
to the reporting.
Speaker 2 (04:30):
You know, first of all, do you.
Speaker 1 (04:32):
Feel that has changed over the last several years or
a couple decades, and do you think it actually or
how does it influence the public?
Speaker 2 (04:40):
Well, to borrow the Hawkman's teachable moment, I know that
back in ninety four, which was circa the same time
as this being tried in LA, I tried a murder
case in Pomona, and I was defending a woman who
had tried to commit what's commonly called a murder suicide.
(05:04):
I won't get into the facts of it, but it
was she felt aggrieved and ended up killing her husband
and then trying to take her own life. But she survived.
And I tried that case and I was able to
use one of the foremost experts on intimate partner violence
battered woman's syndrome. We were ultimately successful in that case.
(05:28):
She was ultimately pled to a voluntary manslaughter after trial,
so we went to trial. She was convicted of a second.
The second was reversed, she got a voluntary man so
and she was placed on probation. Interestingly, she was able
to use the battered woman's defense, but the Menendez in
(05:50):
trial number two were not able to use it. And
by the way, I'm not so sure that the law.
I think the law was a little morphous. Back then,
the DA's office made the argument their children, they were children.
Intimate partner defense does not apply to child abuse, and
(06:11):
the DA in the first case, all you got to
do is google it. You can because the transcripts are
hard to find, but the court TV TV clips are
all over YouTube. The DA's office made the argument and
trial number one that men and boys could not be
raped they don't have the equipment quote unquote. If you
(06:31):
google Pampazanich, who was the DA in trial number one
and men or boys don't have the equipment, you'll see that.
You'll see her argument. Wow, yeah, so people. Now he
reminds me there are a lot of similarities to other
kind of cultural evolutions. But it reminds me of how
(06:54):
quickly my kids, when they were in high school so
many years ago, kind of accelerated the evolution of what
was then the prop different property. But the gay marriage.
It was incomprehensible to kids why their friends' parents, who
(07:15):
may be in a committed gay relationship couldn't get married.
And you'll remember that back when Obama was president, it
took Joe Biden ironically to come out first and get
ahead of that administration and endorse that. But the kids,
the kids were on the vanguard of that, the kids,
(07:36):
the younger generation. And that's why that kind of that
movement in that the reversal of you, if you will,
of legal precedent and things of that nature, and the
enactment of a constitutional right came to be.
Speaker 1 (08:00):
So what about the court of public opinion?
Speaker 2 (08:02):
Right?
Speaker 1 (08:03):
Does that affect you? Does it affect the judicial process?
So you as an attorney, does it affect a da
that's running for election because on a high profile case,
you know, the court of public opinion is very loud
and we all buy into it, But does it actually
influence an outcome?
Speaker 2 (08:23):
Do you think, Oh absolutely, if you think differently than
it's almost as if you're committee malpractice. And you know,
by the way, the law recognizes that the court of
a public opinion, it plays a part if we want
to just talk about the criminal justice system. The original
case where the US Supreme Court dealt with public opinion
(08:47):
and public outrage was the Shepherd versus Maxwell case. There
was a lawyer his name was was Flee Bailey, who
most people may have forgotten about, but Flee Bay made
his career off of the Shepherd versus Maxwell case and
getting the Supreme Court to reverse that. That case became
(09:08):
for those who were old enough like me. You're probably
too young. But there was a famous movie and TV
series called The Fugitive and it was based on that
case with the one Armed man, and that case back
in the fifties took the position that had the judges
had to do something to clamp down on enormous public
(09:30):
interests when there's a media kind of covering a sensational case.
That case has been kind of turned upside down in
the last seventy years and now gag orders are generally
used against the defense, but most judges will push back
against that, because there was a case out of also
(09:51):
out of Nevada, guy by the name of Genteel, where
the state bar of Nevada came after him because he
was making public pronouncement defending a client. And I have
always said, if you don't defend your client now against
this media onslaught, it's almost malpracticed, because you can't go
(10:13):
into a courtroom then and have a jury and pick
a jury in any case. I'll remember Scott Peterson. I
took that case because the public was so against him,
the publicity. I didn't get involved until maybe six months
after he had been arrested, and you know it was
a Christmas Eve crime at least, and then I jumped
(10:36):
in in May when he was arrested. But by that
time the public had already assumed he was guilty. And
no matter what you did, jury selection took forever because
we called him sixteen hundred jurors and we did surveys
and they're the pre judgment. Belief in his guilt was
already set. And I remember the late Al Deluki, who
(10:59):
was the judge, to tell the me, where do you
want me to send this case, mister Gergus into a
spaceship around the world, or where am I going to
find jurors? And that that is very true. And if
you don't do something quick, the public gets they get
that feeling of guilt cemented, and then it's an uphill battle.
Speaker 1 (11:20):
It's a really really good point. And I hadn't thought
about the obvious impact of the jurors hearing all of
that and only hearing that, so that that's also very interesting.
And I think the other thing, what is your take
on the fact that so we can use Rachel as
an example but not talk about a case, but the
fact that everybody is an armchair lawyer, right, so you
(11:40):
have all these bloggers that are dissecting the case and
telling you what the outcome could be, should be, will be,
and then and then the public has this entitlement to know,
right and being on the side that I am, it's
so frustrating because I'm like, but wait a minute. Let's
you know, everybody doesn't just you. The attorney doesn't throw
the evidence out to the public. You wait and you
(12:01):
do a process in court because that's the best thing
for the client. But like, how do you caution people
to think about that? Or you know, how do we
get a grip on that, because the public definitely feels
entitled to this information and it is important to get
a certain amount of it to sway that opinion that
you were just referring to.
Speaker 2 (12:19):
So I've thought about this quite a bit, and I
have a theory here for part of the sensationalism of
crime and the sensationalism of trials, because trials are stories,
and the stories unfold and obviously the lead up to
the trial, what's the appetite for the public to follow
(12:41):
the trial. So in that model, England has what they
call the Contempt of Court Act, where even the most
sensational trial after or as it gets very close, they
clamp down. There's actually they shut out the coverage so
that you can have the trial in kind of a vacuum.
(13:04):
I think we're too far gone in this age to
try to import that into the US. I think I
was naive years ago thinking that you could do that,
but I don't think that's possible anymore. The old expression
the genie's out of the bottle, but there is, and
I made that once again. You always learn from your mistakes.
I think that one of the biggest mistakes I made
(13:26):
once again in Peterson, because that's my highest profile loss
and over twenty years ago and I still plagued by it.
I don't think I ever should have acquiesced to not
having cameras in the courtroom. And I will tell you why.
I used to work out in the mornings there. We
(13:47):
were in San Mateo, and I had a gym membership,
and I used to go into the gym in the
morning before court. And every single day when I was
in the gym, I would have some almost always don't
take this wrong way, white older woman, generally professional, who
(14:07):
would come up to me and start hammering on me
about Scott representing Scott when it was almost always it
was a type, and it would always be a series
of urban legends I heard, and then they would tell
me this, and I would debunk it, and then they
would say I heard, and I'm on the elliptical, and
I say, no, I debunk it, and then you get
(14:28):
to like debunking the fifth urban legend, and then finally
it would always default inevitably do the same thing. Well,
I don't care what the evidence is. I had a
boyfriend ro An X, just like him, and I can
see where he would have done the same thing with them,
but you know, with some cheap blonde on Christmas E
(14:48):
Lee Get Home Pregnant. Was that. I can't tell you
how many times I heard that. And the thing about
it is, I don't blame a person for that because
there was no coverage in the courtroom. All they would
hear about was back then it was kind of out
of New York, the three thousand miles away, no court coverage.
(15:12):
They're getting it secondhand from a reporter usually. And I
used to say the same thing, a former prosecutors giving
their spin on it. And if there were no resemblance,
if you were to watch it and drive you crazy,
if you were trying the case like me, you would
watch the coverage and now you want to kill yourself.
You say that, I'm not. I don't even understand what
(15:32):
trial they were watching. But it became this kind of
this belief that it was the urban legend. Now, mind you,
it took probably seventeen years for the California Supreme Court
to rule unanimously and reverse the death penalty in that case.
(15:53):
And you know why they reversed it. At the time,
I kept telling the judge, you're kicking off everybody who
doesn't support the death penalty automatically, they're just base support it.
You kick them off. If they say they do support it,
then you're questioning them or you're engaging with them. Can
you set that aside bout it? All you've done is
(16:14):
you have free ordained that you're going to get a
death qualified jury, which all the evidence shows, all the
studies show, all sociological analysis shows, is pro prosecution, pro death,
and that's what you get. And they reversed it. By
the way, I was telling the judge Luki in real time,
you're using the wrong standard. That's not the law. But
(16:36):
he was doing it. And in fact, if you read
the opinion, if you're a lawyer, it's interesting because they
kind of chied the prosecution in the case for allowing
this to happen. But that is part of and you know,
I hate to say it, the pendulum swing that we
had at the time, right, And I'll give you one
(16:58):
other I'll tie that the vogue then you have in
Los Angeles, speaking of Menendez trial, Number one with Menendez
is more jurors. There were two juries, one for Scott,
one for Lyle, one for Eric, one for Lyle. Bolter's
juries voted not guilty for murder the majority and guilty
(17:23):
of manslaughter. Then trial number two comes and the one
jury is unanimous for a conviction of murder without with
special circumstances, which is life without pearl. You know what
happened in the interim eight days before they started evidence
on trial number two, OJ was acquitted and that drove
(17:49):
that drove the DA's office, which was on their heels
because they had lost OJ. They had lost the Rodney King,
a case where the four officers. Mind you, same judge
by the way as the judge in Menendez one and two.
And so there was an existential threat DA politics back
(18:11):
then and then fast forward and I'm hoping and I'm
confident that there will not be DA politics system.
Speaker 1 (18:22):
Well that's another interesting point too. So when you look
at the level of publicity that these cases are garnering,
do you, as the kind of attorney are in, the
type of attorney are does that cause more of a
pressure or is it more of a tool for you?
Speaker 2 (18:41):
It's actually I always say the high profile cases for
some for a lawyer who's never done it, I don't
know what your audience looks like or is or the
demographic but the high profile cases are and I've done
no profile to high profile. I still continue to do that.
(19:01):
Some of my biggest wins, I always say, are cases
you've never heard of, with involving clients that you may
know by their name, but you've never heard that the
case has gone away. But the biggest problem with that
is that people, everybody gets paralyzed by the publicity and
(19:22):
don't want to do what they normally would do. And
that's a problem.
Speaker 1 (19:28):
Got it, okay? And now shifting a little bit because
you know, you threw out a name yesterday and I'm like, wait, what, So,
probably the thing topping all of the newser right now
is the pardon of Hunter Biden, which I think most
(19:52):
people and look, it's a polarizing thing, and I think
most people would see that it was, you know, the
case against him was definitely politically motivated. The question I
have now is, so what does that do though, because
it's media, it's politics, it's our government, Like, where does
that leave us next? Because we're still going to have
(20:12):
both sides arguing we now you know, they're basically saying, well,
that opens the door wide open for Trump to do
whatever he wants. Was it right.
Speaker 2 (20:20):
Was it wrong?
Speaker 1 (20:20):
Biden said he wouldn't. Then he did, how can you
sort of summarize what that means for us moving forward?
Speaker 2 (20:27):
For you know, so you were, you know, part of
my I track the trajectory of my career. I think
the case that was kind of I had tried a
case back in the nineties in LA and the client
was equitted across the board in Santa Monica of embezzlement.
(20:49):
She then got dragged back to Arkansas and in the
middle of Whitewater, she was tried by the Independent Council
whose name was Ken Starr, who's passed away. Her name
was Susan McDougall. For those who don't remember, she was
the erstwhile business partner Bill and Hillary Clinton. And we
(21:10):
ended up getting her acquitted on the obstruction of justice.
And back in nineteen ninety nine, and they had the
jury hung on the contempt of court, the contempt charges.
By the way, they hung seven to five. Guess what
the jury's political makeup was. It's nineteen ninety nine, seven Democrats,
five Republicans, and they voted seven to five for acquitto
(21:34):
on the contempt, unanimous on the obstruction. And I said,
then I complained then about the Independent Council. I complained
about Ken's starr, complained. One of my friends was a
good friend, Charles Beckley, was the spokesperson for the Independent Council.
He used to complain to Chuck about it. He said,
here you are, you're the spokesperson. You'd never want to
(21:54):
be on the receiving end of this Independent Council. And
he would constantly say, yeah, but what about to run
contra with Reagan. You guys did it to us, now
we're doing it to Clayton. And I said, that's why
you never want to have an independent council. Fast forward
twenty five years later, because remember that was nineteen ninety nine.
You're in twenty twenty four, and what do you got.
You've got a special council. Mind you. The sitting US
(22:19):
attorney here in the Central District of Los Angeles was
presented the tax case against Hunter Biden. He passed, and
mind you, the sitting then US Attorney David Weiss, presented
a plea offer to hunter Biden to misdemeanors basically, and
(22:41):
a judge, when questioned, scuttled that. Merrick Garland then appointed
David Weiss as special Council, Special Council. And next thing
you know, Hunter is indicted here and he's tried on
a gun charge in Delaware. My point, anybody who says
(23:01):
it's not political, he is naive number one, And you're
not looking at the facts. I mean, what I just
recited about is sober a recitation of what actually happened.
Is you can get so. By the way, you're going
to complain about Biden pardoning Hunter, you know, go back
(23:23):
to George Bush Senior. If I'm not mistaken. He pardoned
his son Neil, and Clinton pardoned his half brother Roger.
So stop with the stop with the faux outrage and
clutching of pearls. It's what people do when they're there.
(23:45):
And by the way Trump Trump.
Speaker 3 (23:48):
Pardened is is then in law. Jared's dad just announced
that he's appointing an ambassador to Friend. So you know,
you can say whatever you want, that's what happens. That's
the reality. Stop acting like this is breaking news. Of
(24:11):
some it is breaking news, but it's certainly not something
that there isn't pressing for, and it's certainly it's the
part of the problem is and I had said this
when Jack Smith dismissed against Trump two weeks ago. Now
I don't even remember it, and I said, yeah, that
was the right decision.
Speaker 2 (24:28):
And by the way, it gives win at the back
of all those who said those prosecutions were political, because
no matter what you say, Jack Smith then dismisses as
soon as Trump wins, and you know Alvin Bragg even
on the state side, well as soon as that happened,
mind you, I said, well, then, how it's Hunter still
being prosecuted. I mean, if Jack Smith saying the election
(24:51):
is over, Hunter should be out of here.
Speaker 1 (24:54):
Right is So the public perception of a special counsel
is that it's supposed to be non biased and fair.
But in everything you just cited, it's absolutely the opposite, correct.
Speaker 2 (25:05):
The opposite. It's a fundamental undermining of the criminal justice system.
You do not want a prosecutor's assigned to one person.
That's that's the worst thing you can do with the
criminal law. Criminal law is supposed to be somebody. You
don't look at the person to find the crime. You
find the crime and then look for the person. And
so that's it fundamentally turns the criminal justice system on
(25:28):
its head.
Speaker 1 (25:29):
What exactly is a pardon, How does what does that mean?
Speaker 2 (25:33):
It basically wipes the slate clean, and that's exactly what
it does. A commutation basically says, Okay, if you were
sentenced to this, that or the other thing, I'm going
to stop. We're calling time out. You're done. If you
have more time, if you've got collateral consequences, you've got
all kinds of other things, commutation takes care of that.
(25:54):
Pardon is at your schedule.
Speaker 1 (25:57):
So for final question, what is anything that you can
tell us in regards to for the Menendez brothers as
to what is next or what we can expect or
or what life afterwards will mean for them?
Speaker 2 (26:09):
Well, first on my one step at a time, Okay,
January thirtieth and January thirty first, they're blocked off. That'll
be the hearing. Got it. So I'm going to guess
that I get an email from you saying come back
and talk to me. I got a job.
Speaker 1 (26:27):
Thank you very much, Thank you so much.
Speaker 2 (26:29):
Mark, have a great day too. Bye bye, thank you,
I'm going road. Bye. Okay.
Speaker 1 (26:35):
Well, I hope you guys enjoyed that. I find him fascinating.
I've worked with him on some different cases and I
lose myself in the conversation because it's it's fascinating to
balance the legality and the publicity and what it all means.
And one of the things I found interesting that he
just said to us is that for an attorney that
(26:55):
hasn't dealt with the media side of things, how it
can be paralyzing or daunting. You're worried about if you
say the wrong thing. It's living in perpetuity. It's no
longer just in a courtroom. It's out there for the
world to see. But then there are attorneys that have
a real knack and artistry for using the media, and
in my opinion, Mark Gergos is one of those. He
(27:16):
knows how to use the media as a tool to
help the client, to help the big picture. And when
you think about it, all of us are listening to
sound bites and headlines and those are driven by that
media for that case, and if it goes horribly wrong
and you don't respond quickly to it, that's the last
(27:38):
thing everybody is left with and they forever think that
person is guilty or wrong. We're also right now living
in a SoundBite situation where people look at an article
they no longer read the whole article, they look at
the headline and that's their opinion. And something he said
in this interview that I hadn't even thought about is
the jurors are influenced by all that media. So everything
from a true crime podcast to a Bravo podcast analyzing
(28:02):
these different cases. The presentation of facts may or may
not be factual, and the tone that goes along with
it sets the precedence. So we all as viewers feel
entitled to knowing that information and sometimes jump to conclusions.
So I think as valuable as a tool as the
media is for myself obviously, and for clients and for
(28:24):
all of us to get our news, remember that the
court of law, they're going to take their time to
present the actual evidence, and we don't get that. We
get the opinions, we get the fast fact, we don't
see the evidence. So I personally am trying to read
more into the depth or be more patient, but in
today's world of entitlement and quick information, it's tough. But
(28:47):
I want to thank Mark. I find him fascinating and
what he does fascinating in the cases that he's worked on,
and I hope that that was fun for all of you.
And that you enjoyed hearing from him directly in reference
to what's next. And and don't think we aren't going
to call him on the thirtieth and the thirty first.
We're going to reach out and we're going to find
out what's next for the Menendez brothers. All Right, everybody,
(29:07):
have a great day. Thanks for joining
All right, well, welcome to Going Rogue. It's Juliet and
today I am joined by somebody that I really admire
and I'm very excited to speak to. You would know
him as one of the most well known, high profile
attorneys out there and the managing partner of Gegos and Garagos.
Please let's welcome Mark Geragos.
Speaker 2 (00:30):
How are you today? I'm doing great? Thank you.
Speaker 1 (00:34):
In addition to the questions that I'm going to ask,
the way that I'm approaching things is a little bit differently.
So everybody that I'm sure you're interviewing with is very straightforward,
what's happening with this, what's happening with that. I'm kind
of interested in how the media of it all fits in,
and you, in your own right, having been a host
in media personality and then you use media throughout the
(00:58):
legal process. So that's kind of what I'm trying to
achieve here. So my questions are going to be a
little bit more peppered in that direction.
Speaker 2 (01:04):
So, for example, I love talking about it. I love that.
I love that.
Speaker 1 (01:09):
So let's dig right into. Obviously, something that's very high
profile and out there right now is the Menendez brother case.
Anything that you can in general tell us what's sort
of the update right now?
Speaker 2 (01:21):
Well, I think part of the update on Menendez brothers.
I think the most consequential thing since the last court appearance,
which wasn't that long ago. The last court appearance, what
nobody really reported on, speaking of media, is there was
a wall to wall coverage of the fact that the
(01:43):
former now former as we record this, DA, George Gascon,
had initiated what's called a resentencing process. Under California law,
you can re sentence under the Code sections and clearly
Lyle and Eric qualify for resentencing, and the DA did that.
Then what happened was is that he did that prior
(02:06):
to the election. Then a new DA was elected, and
there has been a number of developments, but just yesterday,
as we record this today, the new DA was sworn in.
And to some degree I enjoyed some of his remarks
yesterday because he's been asked repeatedly since he has won
(02:28):
the election, not what his new policies are, not what
the what you plan on doing, how are you going
to revamp the office? Every question on every program that
I see is what are you going to do about Menendez?
And he gave me a very good answer, I thought.
Yesterday after the swearing in which was done by former
Governor Arnold Schwarzenegger, he said that he was going to
(02:51):
use Menendez as a teachable moment, which I think is
interesting because I as somebody who has been around the
criminal justice system going into my fifth decade, it is
a teachable moment in this sense. You have a case
that garnered wall to wall attention. It kind of sparked
the birth of Court TV. It was prior to OJ
(03:14):
was trial number one of the Menendez case and that
was covered Wallda Wall in the first case ended in
a Hume jury, and Leslie Abramson was showcased as the
defense lawyer for Eric in the first trial, and she
was one of my one of the I don't know
if mentors too strong, but certainly every lawyer in the
(03:34):
eighties and the nineties coming up in LA knew of
Leslie and her accomplishments in her courtroom style. And now
we fast forward, we're now talking about Menendez thirty five
years later because for a variety of reasons, and not
the least of which has been the what I call
(03:55):
the TikTok army and the TikTok Army kind of viewed
the case through a new prism, and it's interesting to me.
It's fascinating to me. And I know people have said
or made the argument that why is this all of
a sudden a renaissance or rebirth. Part of that, I
think is the culture has changed, okay.
Speaker 1 (04:18):
Fair enough, and actually to expand upon that. So what
role does the media play in all this right now?
Because I look at you know, the from the documentaries
to the reporting.
Speaker 2 (04:30):
You know, first of all, do you.
Speaker 1 (04:32):
Feel that has changed over the last several years or
a couple decades, and do you think it actually or
how does it influence the public?
Speaker 2 (04:40):
Well, to borrow the Hawkman's teachable moment, I know that
back in ninety four, which was circa the same time
as this being tried in LA, I tried a murder
case in Pomona, and I was defending a woman who
had tried to commit what's commonly called a murder suicide.
(05:04):
I won't get into the facts of it, but it
was she felt aggrieved and ended up killing her husband
and then trying to take her own life. But she survived.
And I tried that case and I was able to
use one of the foremost experts on intimate partner violence
battered woman's syndrome. We were ultimately successful in that case.
(05:28):
She was ultimately pled to a voluntary manslaughter after trial,
so we went to trial. She was convicted of a second.
The second was reversed, she got a voluntary man so
and she was placed on probation. Interestingly, she was able
to use the battered woman's defense, but the Menendez in
(05:50):
trial number two were not able to use it. And
by the way, I'm not so sure that the law.
I think the law was a little morphous. Back then,
the DA's office made the argument their children, they were children.
Intimate partner defense does not apply to child abuse, and
(06:11):
the DA in the first case, all you got to
do is google it. You can because the transcripts are
hard to find, but the court TV TV clips are
all over YouTube. The DA's office made the argument and
trial number one that men and boys could not be
raped they don't have the equipment quote unquote. If you
(06:31):
google Pampazanich, who was the DA in trial number one
and men or boys don't have the equipment, you'll see that.
You'll see her argument. Wow, yeah, so people. Now he
reminds me there are a lot of similarities to other
kind of cultural evolutions. But it reminds me of how
(06:54):
quickly my kids, when they were in high school so
many years ago, kind of accelerated the evolution of what
was then the prop different property. But the gay marriage.
It was incomprehensible to kids why their friends' parents, who
(07:15):
may be in a committed gay relationship couldn't get married.
And you'll remember that back when Obama was president, it
took Joe Biden ironically to come out first and get
ahead of that administration and endorse that. But the kids,
the kids were on the vanguard of that, the kids,
(07:36):
the younger generation. And that's why that kind of that
movement in that the reversal of you, if you will,
of legal precedent and things of that nature, and the
enactment of a constitutional right came to be.
Speaker 1 (08:00):
So what about the court of public opinion?
Speaker 2 (08:02):
Right?
Speaker 1 (08:03):
Does that affect you? Does it affect the judicial process?
So you as an attorney, does it affect a da
that's running for election because on a high profile case,
you know, the court of public opinion is very loud
and we all buy into it, But does it actually
influence an outcome?
Speaker 2 (08:23):
Do you think, Oh absolutely, if you think differently than
it's almost as if you're committee malpractice. And you know,
by the way, the law recognizes that the court of
a public opinion, it plays a part if we want
to just talk about the criminal justice system. The original
case where the US Supreme Court dealt with public opinion
(08:47):
and public outrage was the Shepherd versus Maxwell case. There
was a lawyer his name was was Flee Bailey, who
most people may have forgotten about, but Flee Bay made
his career off of the Shepherd versus Maxwell case and
getting the Supreme Court to reverse that. That case became
(09:08):
for those who were old enough like me. You're probably
too young. But there was a famous movie and TV
series called The Fugitive and it was based on that
case with the one Armed man, and that case back
in the fifties took the position that had the judges
had to do something to clamp down on enormous public
(09:30):
interests when there's a media kind of covering a sensational case.
That case has been kind of turned upside down in
the last seventy years and now gag orders are generally
used against the defense, but most judges will push back
against that, because there was a case out of also
(09:51):
out of Nevada, guy by the name of Genteel, where
the state bar of Nevada came after him because he
was making public pronouncement defending a client. And I have
always said, if you don't defend your client now against
this media onslaught, it's almost malpracticed, because you can't go
(10:13):
into a courtroom then and have a jury and pick
a jury in any case. I'll remember Scott Peterson. I
took that case because the public was so against him,
the publicity. I didn't get involved until maybe six months
after he had been arrested, and you know it was
a Christmas Eve crime at least, and then I jumped
(10:36):
in in May when he was arrested. But by that
time the public had already assumed he was guilty. And
no matter what you did, jury selection took forever because
we called him sixteen hundred jurors and we did surveys
and they're the pre judgment. Belief in his guilt was
already set. And I remember the late Al Deluki, who
(10:59):
was the judge, to tell the me, where do you
want me to send this case, mister Gergus into a
spaceship around the world, or where am I going to
find jurors? And that that is very true. And if
you don't do something quick, the public gets they get
that feeling of guilt cemented, and then it's an uphill battle.
Speaker 1 (11:20):
It's a really really good point. And I hadn't thought
about the obvious impact of the jurors hearing all of
that and only hearing that, so that that's also very interesting.
And I think the other thing, what is your take
on the fact that so we can use Rachel as
an example but not talk about a case, but the
fact that everybody is an armchair lawyer, right, so you
(11:40):
have all these bloggers that are dissecting the case and
telling you what the outcome could be, should be, will be,
and then and then the public has this entitlement to know,
right and being on the side that I am, it's
so frustrating because I'm like, but wait a minute. Let's
you know, everybody doesn't just you. The attorney doesn't throw
the evidence out to the public. You wait and you
(12:01):
do a process in court because that's the best thing
for the client. But like, how do you caution people
to think about that? Or you know, how do we
get a grip on that, because the public definitely feels
entitled to this information and it is important to get
a certain amount of it to sway that opinion that
you were just referring to.
Speaker 2 (12:19):
So I've thought about this quite a bit, and I
have a theory here for part of the sensationalism of
crime and the sensationalism of trials, because trials are stories,
and the stories unfold and obviously the lead up to
the trial, what's the appetite for the public to follow
(12:41):
the trial. So in that model, England has what they
call the Contempt of Court Act, where even the most
sensational trial after or as it gets very close, they
clamp down. There's actually they shut out the coverage so
that you can have the trial in kind of a vacuum.
(13:04):
I think we're too far gone in this age to
try to import that into the US. I think I
was naive years ago thinking that you could do that,
but I don't think that's possible anymore. The old expression
the genie's out of the bottle, but there is, and
I made that once again. You always learn from your mistakes.
I think that one of the biggest mistakes I made
(13:26):
once again in Peterson, because that's my highest profile loss
and over twenty years ago and I still plagued by it.
I don't think I ever should have acquiesced to not
having cameras in the courtroom. And I will tell you why.
I used to work out in the mornings there. We
(13:47):
were in San Mateo, and I had a gym membership,
and I used to go into the gym in the
morning before court. And every single day when I was
in the gym, I would have some almost always don't
take this wrong way, white older woman, generally professional, who
(14:07):
would come up to me and start hammering on me
about Scott representing Scott when it was almost always it
was a type, and it would always be a series
of urban legends I heard, and then they would tell
me this, and I would debunk it, and then they
would say I heard, and I'm on the elliptical, and
I say, no, I debunk it, and then you get
(14:28):
to like debunking the fifth urban legend, and then finally
it would always default inevitably do the same thing. Well,
I don't care what the evidence is. I had a
boyfriend ro An X, just like him, and I can
see where he would have done the same thing with them,
but you know, with some cheap blonde on Christmas E
(14:48):
Lee Get Home Pregnant. Was that. I can't tell you
how many times I heard that. And the thing about
it is, I don't blame a person for that because
there was no coverage in the courtroom. All they would
hear about was back then it was kind of out
of New York, the three thousand miles away, no court coverage.
(15:12):
They're getting it secondhand from a reporter usually. And I
used to say the same thing, a former prosecutors giving
their spin on it. And if there were no resemblance,
if you were to watch it and drive you crazy,
if you were trying the case like me, you would
watch the coverage and now you want to kill yourself.
You say that, I'm not. I don't even understand what
(15:32):
trial they were watching. But it became this kind of
this belief that it was the urban legend. Now, mind you,
it took probably seventeen years for the California Supreme Court
to rule unanimously and reverse the death penalty in that case.
(15:53):
And you know why they reversed it. At the time,
I kept telling the judge, you're kicking off everybody who
doesn't support the death penalty automatically, they're just base support it.
You kick them off. If they say they do support it,
then you're questioning them or you're engaging with them. Can
you set that aside bout it? All you've done is
(16:14):
you have free ordained that you're going to get a
death qualified jury, which all the evidence shows, all the
studies show, all sociological analysis shows, is pro prosecution, pro death,
and that's what you get. And they reversed it. By
the way, I was telling the judge Luki in real time,
you're using the wrong standard. That's not the law. But
(16:36):
he was doing it. And in fact, if you read
the opinion, if you're a lawyer, it's interesting because they
kind of chied the prosecution in the case for allowing
this to happen. But that is part of and you know,
I hate to say it, the pendulum swing that we
had at the time, right, And I'll give you one
(16:58):
other I'll tie that the vogue then you have in
Los Angeles, speaking of Menendez trial, Number one with Menendez
is more jurors. There were two juries, one for Scott,
one for Lyle, one for Eric, one for Lyle. Bolter's
juries voted not guilty for murder the majority and guilty
(17:23):
of manslaughter. Then trial number two comes and the one
jury is unanimous for a conviction of murder without with
special circumstances, which is life without pearl. You know what
happened in the interim eight days before they started evidence
on trial number two, OJ was acquitted and that drove
(17:49):
that drove the DA's office, which was on their heels
because they had lost OJ. They had lost the Rodney King,
a case where the four officers. Mind you, same judge
by the way as the judge in Menendez one and two.
And so there was an existential threat DA politics back
(18:11):
then and then fast forward and I'm hoping and I'm
confident that there will not be DA politics system.
Speaker 1 (18:22):
Well that's another interesting point too. So when you look
at the level of publicity that these cases are garnering,
do you, as the kind of attorney are in, the
type of attorney are does that cause more of a
pressure or is it more of a tool for you?
Speaker 2 (18:41):
It's actually I always say the high profile cases for
some for a lawyer who's never done it, I don't
know what your audience looks like or is or the
demographic but the high profile cases are and I've done
no profile to high profile. I still continue to do that.
(19:01):
Some of my biggest wins, I always say, are cases
you've never heard of, with involving clients that you may
know by their name, but you've never heard that the
case has gone away. But the biggest problem with that
is that people, everybody gets paralyzed by the publicity and
(19:22):
don't want to do what they normally would do. And
that's a problem.
Speaker 1 (19:28):
Got it, okay? And now shifting a little bit because
you know, you threw out a name yesterday and I'm like, wait, what, So,
probably the thing topping all of the newser right now
is the pardon of Hunter Biden, which I think most
(19:52):
people and look, it's a polarizing thing, and I think
most people would see that it was, you know, the
case against him was definitely politically motivated. The question I
have now is, so what does that do though, because
it's media, it's politics, it's our government, Like, where does
that leave us next? Because we're still going to have
(20:12):
both sides arguing we now you know, they're basically saying, well,
that opens the door wide open for Trump to do
whatever he wants. Was it right.
Speaker 2 (20:20):
Was it wrong?
Speaker 1 (20:20):
Biden said he wouldn't. Then he did, how can you
sort of summarize what that means for us moving forward?
Speaker 2 (20:27):
For you know, so you were, you know, part of
my I track the trajectory of my career. I think
the case that was kind of I had tried a
case back in the nineties in LA and the client
was equitted across the board in Santa Monica of embezzlement.
(20:49):
She then got dragged back to Arkansas and in the
middle of Whitewater, she was tried by the Independent Council
whose name was Ken Starr, who's passed away. Her name
was Susan McDougall. For those who don't remember, she was
the erstwhile business partner Bill and Hillary Clinton. And we
(21:10):
ended up getting her acquitted on the obstruction of justice.
And back in nineteen ninety nine, and they had the
jury hung on the contempt of court, the contempt charges.
By the way, they hung seven to five. Guess what
the jury's political makeup was. It's nineteen ninety nine, seven Democrats,
five Republicans, and they voted seven to five for acquitto
(21:34):
on the contempt, unanimous on the obstruction. And I said,
then I complained then about the Independent Council. I complained
about Ken's starr, complained. One of my friends was a
good friend, Charles Beckley, was the spokesperson for the Independent Council.
He used to complain to Chuck about it. He said,
here you are, you're the spokesperson. You'd never want to
(21:54):
be on the receiving end of this Independent Council. And
he would constantly say, yeah, but what about to run
contra with Reagan. You guys did it to us, now
we're doing it to Clayton. And I said, that's why
you never want to have an independent council. Fast forward
twenty five years later, because remember that was nineteen ninety nine.
You're in twenty twenty four, and what do you got.
You've got a special council. Mind you. The sitting US
(22:19):
attorney here in the Central District of Los Angeles was
presented the tax case against Hunter Biden. He passed, and
mind you, the sitting then US Attorney David Weiss, presented
a plea offer to hunter Biden to misdemeanors basically, and
(22:41):
a judge, when questioned, scuttled that. Merrick Garland then appointed
David Weiss as special Council, Special Council. And next thing
you know, Hunter is indicted here and he's tried on
a gun charge in Delaware. My point, anybody who says
(23:01):
it's not political, he is naive number one, And you're
not looking at the facts. I mean, what I just
recited about is sober a recitation of what actually happened.
Is you can get so. By the way, you're going
to complain about Biden pardoning Hunter, you know, go back
(23:23):
to George Bush Senior. If I'm not mistaken. He pardoned
his son Neil, and Clinton pardoned his half brother Roger.
So stop with the stop with the faux outrage and
clutching of pearls. It's what people do when they're there.
(23:45):
And by the way Trump Trump.
Speaker 3 (23:48):
Pardened is is then in law. Jared's dad just announced
that he's appointing an ambassador to Friend. So you know,
you can say whatever you want, that's what happens. That's
the reality. Stop acting like this is breaking news. Of
(24:11):
some it is breaking news, but it's certainly not something
that there isn't pressing for, and it's certainly it's the
part of the problem is and I had said this
when Jack Smith dismissed against Trump two weeks ago. Now
I don't even remember it, and I said, yeah, that
was the right decision.
Speaker 2 (24:28):
And by the way, it gives win at the back
of all those who said those prosecutions were political, because
no matter what you say, Jack Smith then dismisses as
soon as Trump wins, and you know Alvin Bragg even
on the state side, well as soon as that happened,
mind you, I said, well, then, how it's Hunter still
being prosecuted. I mean, if Jack Smith saying the election
(24:51):
is over, Hunter should be out of here.
Speaker 1 (24:54):
Right is So the public perception of a special counsel
is that it's supposed to be non biased and fair.
But in everything you just cited, it's absolutely the opposite, correct.
Speaker 2 (25:05):
The opposite. It's a fundamental undermining of the criminal justice system.
You do not want a prosecutor's assigned to one person.
That's that's the worst thing you can do with the
criminal law. Criminal law is supposed to be somebody. You
don't look at the person to find the crime. You
find the crime and then look for the person. And
so that's it fundamentally turns the criminal justice system on
(25:28):
its head.
Speaker 1 (25:29):
What exactly is a pardon, How does what does that mean?
Speaker 2 (25:33):
It basically wipes the slate clean, and that's exactly what
it does. A commutation basically says, Okay, if you were
sentenced to this, that or the other thing, I'm going
to stop. We're calling time out. You're done. If you
have more time, if you've got collateral consequences, you've got
all kinds of other things, commutation takes care of that.
(25:54):
Pardon is at your schedule.
Speaker 1 (25:57):
So for final question, what is anything that you can
tell us in regards to for the Menendez brothers as
to what is next or what we can expect or
or what life afterwards will mean for them?
Speaker 2 (26:09):
Well, first on my one step at a time, Okay,
January thirtieth and January thirty first, they're blocked off. That'll
be the hearing. Got it. So I'm going to guess
that I get an email from you saying come back
and talk to me. I got a job.
Speaker 1 (26:27):
Thank you very much, Thank you so much.
Speaker 2 (26:29):
Mark, have a great day too. Bye bye, thank you,
I'm going road. Bye. Okay.
Speaker 1 (26:35):
Well, I hope you guys enjoyed that. I find him fascinating.
I've worked with him on some different cases and I
lose myself in the conversation because it's it's fascinating to
balance the legality and the publicity and what it all means.
And one of the things I found interesting that he
just said to us is that for an attorney that
(26:55):
hasn't dealt with the media side of things, how it
can be paralyzing or daunting. You're worried about if you
say the wrong thing. It's living in perpetuity. It's no
longer just in a courtroom. It's out there for the
world to see. But then there are attorneys that have
a real knack and artistry for using the media, and
in my opinion, Mark Gergos is one of those. He
(27:16):
knows how to use the media as a tool to
help the client, to help the big picture. And when
you think about it, all of us are listening to
sound bites and headlines and those are driven by that
media for that case, and if it goes horribly wrong
and you don't respond quickly to it, that's the last
(27:38):
thing everybody is left with and they forever think that
person is guilty or wrong. We're also right now living
in a SoundBite situation where people look at an article
they no longer read the whole article, they look at
the headline and that's their opinion. And something he said
in this interview that I hadn't even thought about is
the jurors are influenced by all that media. So everything
from a true crime podcast to a Bravo podcast analyzing
(28:02):
these different cases. The presentation of facts may or may
not be factual, and the tone that goes along with
it sets the precedence. So we all as viewers feel
entitled to knowing that information and sometimes jump to conclusions.
So I think as valuable as a tool as the
media is for myself obviously, and for clients and for
(28:24):
all of us to get our news, remember that the
court of law, they're going to take their time to
present the actual evidence, and we don't get that. We
get the opinions, we get the fast fact, we don't
see the evidence. So I personally am trying to read
more into the depth or be more patient, but in
today's world of entitlement and quick information, it's tough. But
(28:47):
I want to thank Mark. I find him fascinating and
what he does fascinating in the cases that he's worked on,
and I hope that that was fun for all of you.
And that you enjoyed hearing from him directly in reference
to what's next. And and don't think we aren't going
to call him on the thirtieth and the thirty first.
We're going to reach out and we're going to find
out what's next for the Menendez brothers. All Right, everybody,
(29:07):
have a great day. Thanks for joining
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