#020 – Thomas Mesereau on Defending Michael Jackson and Bill Cosby, plus Defendants Taking the Stand
October 24, 2023 • 53 mins
Trial guru Thomas Mesereau joins Sara and Jim at the top of the show. The trio of trial lawyers discuss his incredible accomplishments in the courtroom, as well as his relationship with media. They also discuss his defense of Michael Jackson, Bill Cosby, and more. As the show wraps up, Thomas discusses his life-changing pro bono work in the deep south, and why he thinks all defense lawyers should assume at jump that their client is going to take the stand and testify.
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Music – Caleb Fletcher
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Music – Caleb Fletcher
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:22):
Hello, everyone, Welcome to thePresumption Podcast. I'm your co host,
Sarah Sorry here with Jim Griffin.Hi, Jim, Hey, Sarah and
Matt Hey. And we have sucha special guest today, someone who I
admire, I work with, I'veknown for many years. Tom Masero.
Tom. Welcome to the Presumption.Thank you, Sarah and Jim. I'm
(00:45):
really looking forward to it. Thankyou so much for me. Thanks so
so Tom. Everyone knows Tom.Tom is usually known as the Michael Jackson
lawyer, but he's so much morethan that. You're described as an unconventional,
unpredictable try lawyer, which you verymuch are at Your accomplishments in the
(01:08):
courtroom are extraordinary, unprecedented, andof course you quitted Michael Jackson in his
world famous you know, five anda half month. I didn't realize it
was that long trial in Santa Barbara. He was acquitted on all fourteen counts
and a child mole station indictment.I'll be talking to you about that,
and Jim is going to talk toyou about the Bill Cosby trial. You've
(01:30):
also represented Mike Tyson, a lotof different celebrities and non celebrities, and
I am most impressed by your work, Tom, all of these years,
twenty three years in the South doingpro bono work murdered cases, capital cases
in Mississippi and Alabama. And ofcourse you probably don't remember this, but
(01:52):
I met you in the legal clinicat the Personality Church where I was a
young lawyer, and I think itwas Tony Brookley or my mentor, and
your friend said you need to goand help out Tom Mezziro's running this clinic,
And of course I came in,and a couple months later you got
swept away to the Michael Jackson trial, and then I went in with the
(02:15):
team on the Blake case. Soit's been this revolving thing. But since
then we've had a lot of federalcases together, co defendants here and there,
and so very very very much lookingforward to Jim and I having this
discussion with you. So I'm goingto turn it over to Jim with sort
of a pressing question that he wasasking me the other day, and I
(02:37):
said, save it for Tom.Yeah, Hey, Tom, how are
you all right? Yeah? Good. You probably don't remember, well,
you may have remembered the trip toHilton Head, South Carolina. I think
it was shortly after the Michael Jacksoncase, and you came to speak to
the South Carolina Trial Lawyers Association onHilton Head and and new topic that you
(03:00):
know, it was about how tohandle the media in high profile cases.
You know, Sarah, that wasfifteen twenty years ago maybe now, so
you know Tom has been speaking onthis topic long before we ever thought about
the Presumption podcast. But Tom,I remember then that you seem to exkew
(03:22):
the media and that you did notengage the media, you know, with
interviews during the course of these highprofile trials. Now I may be wrong
about that, I may be misremembering, but but you know, we had
a we had a three years ina row. We went from you.
I think we had Garret Goes andNancy Grace and so of the three,
(03:43):
I remember you being the one who'swho was most shy with the media.
And I've handled a lot of mediacases. I just feel, you know,
I'd like to get your perspective onas a lawyer when you're dealing with
something that as hot as Michael Jacksonor my case, the Murdock case,
or any case with local attention,you know, what's your approach to the
media. Well, there are somegeneral thoughts I have about the media,
(04:06):
and there are case specific thoughts Ihave about the media. I'm going to
ask you about the Michael Jackson casespecific stuff because I did a deep dive.
Let me just say this, Beforethe Michael Jackson case, I was
in the Robert Blake murder case andwe had a preliminary hearing. And the
week before the preliminary hearing, Igot a call from the judges clerk asking
(04:30):
if I had any objection to camerasin the courtroom for a preliminary hearing,
and I said I would get backto her, and I did, and
I said, I have no objectionto it, knowing full well that the
District Attorney's office had a written policythat they don't encourage or object to cameras
in the courtroom. So I hada feeling they were going to be in
there. And I think most lawyerswould have said, how is my client
(04:53):
going to look good in a preliminaryhearing. It's not going to happen.
And I had a feeling of Ihad a real feeling about Hoobris. When
it came to the prosecutors in thatcase, they were like feeling no pain.
They thought they really had this thingwired. It was Shelley Samuels,
right, who's now a judge.She came in later on they hearing,
(05:16):
so I also had been late toenter the case, so I figured they
didn't think I knew it that well, and I ended up treating the preliminary
hearing on camera like a trial.I was cross examining the daylights out of
their witnesses. It was all beingpreserved on videotape, and that's the case.
It gave me some national recognition Ihad none before that. So turning
(05:40):
that preliminary hearing into a media typeevent I think ended up helping the client
tremendously because these witnesses. They decidedto showcase a lot of witnesses that I
don't think they even needed to call. You know, in californiarew's hearsay.
You're a prosecutor can introduce hearsay intoa preliminary hearing in a way that you
(06:00):
can't at trial. So I thinkby showcasing so many witnesses and letting them
be attacked on camera like it wasa trial, it boomeranged on the prosecution.
In fact, at Court TV atthe time, which was covering the
preliminary hearing, eighty percent going intothe pre limb thought he was guilty,
and after three weeks of this typeof behavior in my part, eighty percent
(06:25):
thought he was not guilty. Itwas an amazing turnaround. So there's an
example where I said bring the mediain. The Jackson case was exactly the
opposite. I said, keep themedia out of the court room. I
had a feeling there a number ofthings I felt about it. One,
I didn't want witnesses watching what otherwitnesses were saying on TV before they showed
(06:46):
up. I just got feeling that'snot going to help us. I also
knew that the judge would probably appreciateor trying to make his job easier on
when it came to cameras in thecourtroom, Mark Ragos had been the prior
counsel and he wanted cameras in.He had appealed the judge's gag order keeping
(07:11):
cameras out, and I dismissed theappeal because I just thought, I guess
what I'm saying is it's a caseby case and in general something it tends
to make lawyers do if they're notcareful as they think the media is sot
of the courtroom. It's not twelvejurors in a courtroom and a judge.
(07:33):
They're the thirteen people that mean themost, and you can't lose sight of
that. No. I remember someother lawyers used to say, we condition
the jury before we get into trial, and it makes a big difference in
the courtroom. I think that's exaggeratedthere. I don't care where you are
in the United States. Take itvery seriously, try to follow their oath
(07:58):
as best they can. They're humanbeings, they're not perfect, but they
really want to do a good job. And they're the ones that watch what's
going on and feel what's going onbecause they're in the courtroom. You can
watch a trial on TV and notfeel what's going on because you're not there,
and you can come to very differentconclusions in my opinion, about how
(08:18):
well people are doing or how wellthey're not doing. You never really know
the strategy the lawyers have, howone witness will connect with what another witness
says, etc. But I thinkyou've got to be very careful with media.
If you make it too much ofa circus, you may be giving
your client, you know, adisservice. Yeah, I generally don't like
(08:43):
them in the courtroom, but Blakewas an exception. Tom. You know,
we also know unfortunately lawyers who wantcameras for self serving purposes because they
want to put their own performance onfull display where it doesn't even you know,
(09:05):
and you were, I mean,Robert Blake, you did a phenomenal
job at the preliminary hearing because aswe all know here, it's not it's
not common to get a client outon bond h on a murderer prelim,
so it was it was a tremendousuh stride in that case. And your
(09:26):
cross examination was brilliant. I cansay this because we came in after you
and and a lot of you know, the additional work that had to be
done was slim to none, youknow, with respect to those stunt men
that the prosecution had as witnesses whowere completely shady, and a lot of
that came out on your on yourcross But you know, the I I
(09:50):
mean, I don't know what Jim'sposition is, but I always say it's
a case by case basis too,because like I don't know, if you
remember the end on John case thatI helped Tony on Brooklear here. There
were so many accusers whose credibility wasjust terrible, and we wanted that to
be seen, you know, wewanted that to be televised. And so,
(10:11):
you know, it really does dependon the case. But when you
went to down by Jim to HiltonHead, you really blasted. It wasn't
it wasn't just you know, Jim'smaking it sound all nice. I mean
you really blasted. You blasted courtTV. You said that you know that
your case was very different from OJ. How did you see that progression?
(10:35):
I mean, what is it aboutmedia coverage that changed for you from OJ
to Michael Jackson. Well, obviouslythe defense lawyers and OJ did a fabulous
job, and I'm sure they wouldn'tchange any decision they made because they got
an acquittal in what looked to melike a very difficult case. Yeah,
(10:56):
cameras in the courtroom seem to havedone them well. I was very concerned
about the circus like atmosphere in MichaelJackson, and I just had a very
strong feeling that narrowing things down towhat was in the court room as opposed
to letting witnesses all watch on adaily basis what's going on. Let them
(11:18):
see what other people are saying,let them see what the judge is saying
to the lawyers. I just didn'tthink that was going to help us.
Was it that there were more spectatorson Michael than there were on OJ?
I mean, OJ was a footballplayer who was a celebrity, et cetera.
But you mentioned something about people fromAsia and people from different places following
(11:41):
the Michael Jackson trial. Well,the OJ case was nine months long.
Michael Jackson trial was about five monthsfive and a half months. The OJ
case took over America. The MichaelJackson case, because it was not televised,
did not take over America the wayOJ did. But around the world
world, there's never been a casefollowed quite like it. Yeah, because
(12:03):
Michael Jackson was, without a doubt, the most famous person in the world.
I know, verdict day, peoplein capitals all over the planet were,
you know, watching to see whatthe verdict was. So there were
different kinds of cases and different charges. Obviously, I think the charge of
child molestation is a particularly disquality stingcharge. I think of being charged with
(12:30):
charge or being accused the child molestationis worse than being accused of murder.
Yeah, So I just wanted totone it down a bit. I didn't
have a good feeling about the mediain the court room to that extent,
and I followed my gut, Well, I feel like you've said the man's
name several times now. I wouldlove to hear Sarah's deep dive. What's
(12:52):
my deep dive on uh? OnMichael Jackson, he said, you were
prepared with a bunch of questions here. Oh yeah, no, there's just
I just have a few more questionsbefore I turn it over to Jim.
On Bill Cosby, you know,one of the things that we always say
is that you know, there's victimblaming as a no no, and you
(13:13):
really sort of got pretty close toI mean, you were victim blaming.
You were saying that, you know, these victims just wanted to live and
neverland forever. And so what wasthe strategy call behind that? You know,
as you said, child molestation chargesare sensitive, you know sensitive charges.
(13:35):
Well, let me say this.When the prosecution rested, I felt
I had done more effective cross examinationsthan probably any time in my career,
and I felt that ninety nine pointnine percent of criminal offense attorneys probably would
have rested because I felt at leasta hung jury was guaranteed. I didn't
have a feeling that an acquittal onevery count was necessarily guaranteed by using cross
(14:01):
I felt because the charges were soawful, and because the attacks, even
afforded a little bit, were sodisquieting, I felt I had to put
a counter narrative on which would showwhat Neverland really was about, what Michael
Jackson really was about, and puton our own counter narrative for the jury
to take into the deliberation room.After the trial. I was on Larry
(14:28):
King, and Larry King said ifyou talked to any jurors, and I
said, no, I'd love to, but I would never approach them.
Next to a call from the fourperson saying, a bunch of us would
love to meet with you. Wesaw you and Larry Canyon were happy to
meet. So I met with them, and I ran that by the jurors,
and I was told, in nouncertain terms, you would have hung
(14:48):
jury if you had just rested whenthe prosecution rested, you would not have
gotten acquittals on everything. We hadto hear your story. We had to
find out more about these accusers,who Michael really is. So fortunately,
I followed my gut. We calledabout forty two witnesses in the defense case.
There was a short rebuttal by theprosecution and it went to the jury.
(15:13):
I think your question is, lookthis issue of reasonable doubt I talk
about a lot, and I thinklawyers get too hung up on what reasonable
doubt is sometimes, and reasonable doubthas been thrown around enough now on court,
on trials that are televised on TVshows, based upon what lawyers supposedly
(15:37):
do. And I think most jurorswhen they walk in the courtroom want to
know what the truth is, andthey think the lawyers know the truth.
We may or may not, butthey think we do. If you start
off just talking about presumptions of innocenceand reasonable doubt and burdens, I think
the message of the jury is,you know that this is a smart lawyer
(15:58):
trying to block us from really seeingwhat happened. Theicality is here in technicalities
there. I like to get upan opening statement and have the jury here
that we know what the truth isand we're not afraid or words to that.
I mean, you don't necessarily sayit that way, right, You
want to convey that I'm not hereto throw roadblocks in your way. I'm
(16:21):
here to let you know this personis not is not guilty. So speaking
to that transparency that you start withan opening statement, It was also really
interesting to me that you know,when you were cross examining these witnesses in
Michael Jackson, there was a lotof hostility. They got very defensive,
specifically the cuser's mom, and yourepeatedly with every witness, would say,
(16:48):
my name is Tom Mazero, andI speak for mister Jackson. Why the
repeated reminder. I wanted the witnessto hear that, and I wanted the
jury to conclude that I'm being honestwith the witness because a lot of witnesses
come into a criminal court room,they're intimidated, they don't know what the
process is. You don't know whatpeople have said to them or not said
(17:11):
to them. And I just wantedto be very clear in front of the
jury that I'm being straight with thiswitness. I am here defending Michael Jackson.
I'm on his side. I thoughtit would be a very good way
to start off. No, itis. I just never I'd never come
across that sort of repetition, andyou know, it was interesting because the
accuser's mother got really ticked off,pointed the finger at you and said he's
(17:34):
wrong. And then I think ofMichael Jackson's security guard whimpered and he wants
to just go home, and acomedy club owner, you know, sort
of got into it with you andthen told you that you happen to be
funnier than another comedian that you guyswere that he was being questioned about.
(17:55):
But you know, Tom, anothersort of reason why Jim and I are
so dedicated to this platform is becauseof how mental illness substance abuse has really
been sort of thrown to the side. Uh, as we see in our
cases. It's supposed to mitigate,but it's almost like, you know,
(18:15):
really a lot of judges don't reallytake it into consideration. And so,
of course, sadly, a fewyears after this acquittal, Michael Jackson lost
his life to a ventanyl overdose thathad to do with doctor what does it
Murphy Murray, I can't remember hisname, who was also the yeah on
(18:36):
propofol sorry faentanyls today's thing, butyeah, propofol. I was confusing him
with Prince, I guess because Princewas fentanyl, so uh, what what
was your Did you have any awarenessthat Michael Jackson might be struggling? Of
course he had, you know,you use some of his Essentially, you
(18:57):
portrayed him as the victim, partlyin his defense. And so did you
notice that there's a cry for helpor that he needs help, or how
much of that came into your workwith him and maybe even defending him.
Well, first of all, hewas charged with conspiracy. He was charged
(19:18):
with conspiracy to falsely imprison a family, conspiracy to commit extortion, I mean
conspiracy to commit child abduction. Theseare the most ridiculous charges I've ever seen
in a courtroom. To think MichaelJackson was even capable of imagining leading a
criminal conspiracy like this as absurd,and I wanted the tread to know absurd.
(19:41):
It was part of our theme inour defense case, or as I
said before, we called a lotof witnesses, was to show that people
around Michael Jackson were taking advantage ofhim, that he was a very vulnerable
person who, given his sensitivities,given his amazing talents, given the fact
that he danced to a different drummer, he was very an artist like we've
(20:04):
never seen and not necessarily the mostsolid person when it came to how to
handle finances putting all this together,people were taking advantage of them left and
right, and far from Renney conspiracy. If anyone was a victim of a
conspiracy, there were a lot ofconspiracies around him taking advantage of him.
(20:26):
That was one theme, not theonly theme, but that was one theme
we promoted. I didn't I neverknew what Michael Jackson was taking in terms
of medication. I assumed he wasdealing with sleeplessness and depression and anxiety like
anybody does in a try that oranybody's position. So I know he had
(20:49):
a physician. I assumed he wasgetting treated like anybody would. I mean,
many people taking anxiety medication, theytake sleep medication, whatever they need,
depression, you name it. Togo through a five month trial being
charged with horrendous accusations like that,you know, I would not have been
(21:11):
surprised if he was taking some medication. But I never asked him. I
see him take the trial very hard. He lost way, He started more
and more pale, his eyes gota little more bloodshot. I mean,
he was a terrible experience for him. But I never thought any he was
doing anything that would be fatal,and he will always always was coherent with
me. Yeah, in our discussion. Yeah, I mean it is.
(21:34):
It is a progressive disease. Andso you know this this obviously, this
all happened years after the acquittal,but I was just curious if there was
anything that you noticed at the time. My last question on the Michael Jackson
trial is change of venue. Thisis of course it has been an issue
(21:55):
for Jim in his case, inAlec Murdoch's case, and you know that
Saga is not and so if hedoes get a new trial, there might
be some considerations there for them.Obviously a different part of the nation,
very different part of the nation.But did you seek I think you sought
change of venue? We're thinking ofseeking a change of venue or how did
that play out in Michael Jackson.Well, the case was tried in Santa
(22:18):
Maria, California, which is northernSanta Barbara County, and there was a
lot of pressure on me to makemotion to change venue. And before the
trial started, I hung out aloneat various bars and restaurants in that community.
I would go in with just myblack leather jacket and hang out at
a bar, and people would comeover sometimes to say, are you Michael
(22:41):
Jackson's attorney, And I would sayyes. And I wanted to feel for
that community because I had never trieda case in Santa Barbara County, and
I got the impression that the peopleof that community liked Michael Jackson. They
didn't like the charges. This wasa very blue collar, very conservative,
(23:03):
very libertarian actually community where the feelingwas, you know, government, police,
district attorney, don't go too farwith us because we are law abiding
people. We don't like government intrudingtoo much, but we don't like crime.
So they had a very high convictionrate in the courthouse. But I
just Michael lived in that community,employed one hundred people that never land.
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And I thought to myself, ifI if I make an emotion to change
venue and it succeeds, where arewe going to go? We go north
to Bakersfield, where Michael would haveno. Yeah, it's not where we
lives, not more shops, notwhere we hired people. We could go
south to Ventura County, which meanswould be something similar, very conservative,
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but Michael doesn't live there. Michaelhad made some statements that he loved his
community and look forward to being vindicated. I just decided we're better off where
we are, right, and itturned out to be right. But I
was from all sorts of people,people in my own camp, people on
the media. Why isn't he seekinga change of venue? And that was
(24:07):
the reason. No, it makessense. I'm turning this over to Jim
because Bill Cosby was another huge trialof yours. Yeah, before we get
to that, I've just was MichaelJackson's jury sequestered. Tom. I didn't
ask, I didn't answer to besequestered either. I thought being sequestered for
(24:29):
six months would make you angry anduncomfortable to say the lead. Yeah,
and I didn't want to do that. Yeah. And now as the O.
J. Simpson jury was sequestered andthey ended up favorable to the defense,
but I just didn't want these peopleto be so uncomfortable, as as
being sequestered will make anybody. SoI took a chance, and that you
(24:52):
know, that's been my approach,particularly when I have a defense to put
up, because it's been my experiencewhen when you this state finally rest,
I mean the jury has worn outand they want to go home, and
then they don't really pay much attentionto you. And and they think you're
you know, you're wasting their time, or it's just an unhappy jury.
This sequestered. And so you know, we made the decision in many big
(25:15):
cases not to sequest of the jury. For better or worse. I'm not
sure how it worked out in thislast case, but I was curious about
your approach. So, Bill Cosby, you know, I know that was
a tough, tough case for you. He was America's dad. You know,
I grew up watching Bill Cosby,grew up watching Jello commercials, and
(25:37):
and I was and I went tosome of Bill Cosby's comedy routines, and
and he did a lot of alot of good And he did some charity
events in South Carolina after Hurricane Hugo, and and and you were the trial
attorney, and and and he wasfound guilty there it was shocking to most
of us. I was in theretrial at that You're the first trial,
(26:00):
hung I was not part of thattrial. Nicely, and then then you
had the retrial. You did aclearly a fantastic job with the record and
and you know, I mean,we all we went some we lose some
Sarah's friend Jenny Bonjean was able toget it reversed on appeal. But tell
(26:21):
us your thoughts about defending Bill Cosbyin a spotlight that he was in and
how the media, you know what, I believe convicted him well before the
trial started. Well, first ofall, mister Cosby is one of the
nicest people I've ever represented. Hewas very, very respectful, very kind,
very nice, very cooperative, andone of the nicest clients you could
(26:41):
ask. For that trial. Judgewanted to make sure there was a conviction
in a retrial, and what hedid was he changed a number of his
rulings from the first trial. Heupped the number of unrelated alleged victims from
one to five. In the retrial. We're talking about some claiming things that
(27:03):
have allegedly happened twenty five thirty yearsago. I let this stuff into the
courtroom. I mean, one womanin Las Vegas claimed that she had been
sexually assaulted almost thirty years ago.Well, how do you find witnesses?
How do you find forensic evidence?When you do then an accusation like that,
(27:26):
I think when the judge let thatmaterial end, it was so obvious
that we were going to We hada judge who wanted a conviction. I
had four repellate lawyers on the team. This is the best record I've ever
seen made in a criminal case.They were filing objections, mimosa points and
authorities every day, motions for mistrialevery day. And the record on the
(27:49):
issue that he was reversed on hadto do with a prior representation by a
district attorney that he was not goingto be prosecuted. The attorney encouraged him
and actually almost mandated that he takea civil deposition because there was no Fifth
Amendment issue because they weren't going toprosecute him. This was really a contract
(28:14):
in an agreement. There had beena hearing before the first trial, again
which I wasn't part of, whichwas conducted by another attorney who did an
excellent job. I mean, ifyou read the transcript, she did an
excellent job of calling witnesses, questioningwitnesses, and we thought the record was
so complete on that issue that wedidn't have another hearing on it because those
(28:37):
witnesses could have come in, theycould have changed their stories, they could
have embellished. Who knew what wasgoing to happen, so we were allowed
to take that earlier record and insertit into our record, which became the
dispositive evidence that got a reversal.But we raised every appellate issue on the
planet at the trial level, andI'm glad we did. Unfortunately, he
(29:02):
was convicted, spent some time inprison where he didn't belong, which he
didn't deserve, and the media wasawful. I mean, Bill Cosby had
a publicist, a friend of mine, Andrew Why did a fabulous job as
best he could, but it wasa bias media. It was the first
(29:22):
me too case right on a celebritytype level that I'm aware of, and
it was not fair at all.The court room was hostile, the judge
was hostile, The rulings were clearlystill there. I mean there was there
was an exorbitant amount number of youknow, for four b women that you
(29:44):
know, we're just trying to getin and get their day in court where
their statutes had run and you knowthose were it kind of I mean,
it really is akin to Jim's case. In Jim's case, all of this
financial evidence came in in a murdertrial to show that his client it was
a liar and you know, andthen he was just I mean, it
was done at that point, andand and in cosby, I think it
(30:07):
was like, you know, inthat me too sort of, we're still
in that me too moment where youknow, everyone is welcome to take the
stand and get their day in court. I made a motion to disqualify the
judge. Yeah, set him soobviously, and I think we had to
do that. Now, Tom,did you do that during the course of
the trial or pre trial pre trial? Yeah, and the judges qualified as
(30:33):
bias was so obvious. There weresome actual reasons we thought were very compelling,
and of course he denied our motion. What were the reasons? He
asked me. At one point hesaid, who is responsible for this?
I said, I am. Isaid, were a team to get we
all worked together, but I'm theone responsible for it. He didn't like
it one bit. Yeah, So, Tom, I'm sure you feel the
(30:56):
same as I do. I mean, the prosecutors have an ethical obligation not
to overreach, and clearly in theCosmic case, they did overreach, and
the judge allowed them overreach. Soyou know, what's your thoughts about the
ethical obligation of the prosecutor to ensureit's a fair trial, not a trial
they can win at all cost.Look, there's no one I respect more
(31:18):
than a courageous, professional, balanced, responsible prosecutor, someone who can handle
the enormous power they have to hurtpeople just by accusing them. And such
prosecutors do exist, but they're fewand far between, particularly when you have
a lot of media around, becausecameras affect everybody. I mean, the
late Robert Blake said to me,cameras are like drugs. They're like,
(31:42):
okay, you know, nobody canresist them. And when you see a
camera anywhere and a lawyer nearby,expect the lawyer to be affected, and
prosecutors will start acting like people they'reprobably not of a situation and other settings.
So when you get a high profilecase with a prosecutor who sees cameras
(32:06):
and who's a politician to begin with, that's how they get in office.
Expect trouble now once you run intopeople who are very mature and very professional
and credit to the system, butnot not too often well, and it
was it really was a political hitjob, if you think about it,
because it was the DA before thisDA. This DA was running again.
(32:28):
My understanding is and the d beforeis the one that said, you know
you have immunity, go ahead andtestify in this uh in this in this
civil deposition. And then the newguy came out and said no, and
we're not bound by that. AndI always think, you know, a
lot of what we do, especiallyyou know on the federal side, when
(32:49):
we bring our clients and to profit, you know, there is a lot
of it is based on you know, sort of this honor system, this
trust that we have. You know, they don't want to promise as a
specific result until they hear from theclient. And so it's just it was
so upsetting to me that he wasindicted in the first place. Well,
(33:09):
it's a little worse than you've evendescribed. The DA before who made the
agreement not to prosecute Bill Cosby,running against someone who became the trial judge.
Oh jesus, And it was abitter campaign. So here's what happens.
(33:29):
The da who made the agreement notto prosecute runs against the person who
became the trial judge. Fast forwardto the Cosby case. The trial judge
is presiding over a hearing to dismissthe case, where the former da IS
rival is the main witness because he'sthe one that entered into the non prosecution
(33:52):
agreement, and the trial judge,his old bitter rival, rules that he
lacks credibility and denies the motion.Oh god went out. Yeah, truth.
The case was filled with injustice,fill with politics, and mister Cosby
should never have had to go throughthat. Tom as a lawyer, in
(34:15):
going through that with the clients suchas mister Cosby, and you see the
injustice happen before your eyes. Imean, how do you How do you
just fold up your briefcase and headback to the office without carrying it all
with you or can you do that? I don't think you can do that
so easily. I mean, Ithink some people do it better than others.
(34:37):
The problem is that to really beeffective, in my opinion, as
a criminal offense lawyer, you haveto have some emotional involvement with the client.
You know, we're I remember earlierin my career all these so called
trial gurus saying you've got to beobjective. You can't lose your objectivity,
don't get too emotionally involved, don'tlet your passions get too involved. And
(35:01):
I remember the late Joe Jamail fromHouston, one of the best civil trial
lawyers in history. He wrote abook that I read, and he said,
Look, I don't understand these peoplewho say you've got to be completely
dispassionate and objective. You have tobe emotionally involved. You have to you
have to feel your client's feelings.You have to understand the client, and
(35:22):
if you do that, you aremore vulnerable with the kinds of stresses we're
talking about. But I think it'sinevitable. If you're going to be any
good you can't just become hard boiledand calloused and insensitive and desensitized. You
won't be active and you won't doa good job for the client. Now,
there are some lawyers in our professionwho become that way. They just
(35:45):
suddenly seem to lose any emotional connectionto the client, or even any desire
to have an emotional connection with theclient. But I don't think and you
can be possibly be that effective unlessyou have some Yeah, Tom, I
couldn't agree with you more on thatpoint and your prior point about cameras having
(36:06):
the effect on prosecutors and the participantsin the trial. And let me ask
you, there's probably nothing you couldhave done differently. But looking back twenty
twenty hindsight on the Cosmy trial,is there something that that that choices you
think, you know you would havemade different choices knowing what you know now
(36:28):
you know? Not really. Ithink we had a great team. I
think we made a as I saidbefore, the best record for appeal I've
ever seen in a criminal case.On a daily basis, we were doing
that. I think some of thememorandums of points, the authorities on for
or four B type witnesses on thenon prosecution agreement, I think I've never
(36:50):
seen a better brief trial record.And I had a wonderful client who is
very, very bright guy. Isaw the way the media and the country
was turning against us, and wedidn't get a fair trial. Thank god
for the Pennsylvania Supreme Court. Theyrecognize that. If you read that opinion,
(37:13):
it's pretty blistering about what before us, about the lack of fundamental fairness,
I mean, the due process issues. That's how I look at the
trial. I think we had verygood lawyers and did our very very best
in a very difficult, unfair situation. Eventually, Bill Cosby prevailed, thank
(37:35):
god, but it was a toughroad for him, and a very unfair
road. He should never have beenin that courtroom on trial to begin with.
Yeah, it's so difficult to defendagainst, you know, just the
one charge against you, But whenthe state or the prosecutors are allowed to
bring in other allegations of criminal misconductthat you're not even charged with, and
(37:58):
you just get this avalanche and it'shard for the jury to disregard that.
I mean, there's certain instructions,the juries are given as to how they're
supposed to treat that evidence, butI mean, it just dirties the guy
up and he has no chance atthat point in time. I suspect that
we experienced that with the Cosby case. Well, that's certainly true. And
(38:19):
as I said before, how doyou go back twenty thirty years and investigate
an allegation like that, Where doyou find the liking, where do you
find the forensic evidence, where doyou find anything? It's so unfair,
it's piling on, it's going wayoutside of the record to absurd. Well,
and now you know, on thecivil side of this is the look
(38:42):
back window laws. You know thatthat allow you know, Cosby now has
an eighty something year old accuser who'scoming out, you know, seeing something
happened to her fifty years ago,and it's like, what witness do you
get out out of what grave?You know to be able to come in
and testify in defense? I mean, it's just it's ridiculous. And you
made a really good point on me. I always say, you know,
(39:06):
you know, when people law studentsask me about criminal defense, I say,
you have to be passionate and thisis not nine to five and it's
pretty thankless sometimes, you know.So we are a different breed and I
think that if you're not available atall times invested, it's just not It's
like you said, it's not effectiveand you're not for this job. But
(39:30):
we want to close with your probono work because it's absolutely incredible that for
twenty three years you would travel downto the south to Alabama, Mississippi every
year, I think in the summer, and you would I guess, work
with local council down there and pickup a capital case or murder case and
take it to trial. How didthat come about? And you know what
(39:52):
was your most notable win in thesetwenty three years, Well, in brus
nineteen ninety six, I traveled toBirmingham, Alabama to meet two lawyers who
became dear friends of mine, andI met them through Elizabeth Simmel, who
is a professor at University of CaliforniaBerkeley School of Law, which is a
(40:15):
capital case seminar. She was inWashington, d c. She was the
director of the American Bar Association's DeathPenalty Representation Project, and I met her
through a friend, Jennifer Keller,a great lawyer. Yeah, I wanted
to try some cases if I could. You know, most of the work
(40:36):
that we're talking about when lawyers comefrom outside the state to deal with a
capital type case, they're dealing withappeals, habeas petitions, that kind of
thing. I'm made very clear I'mnot a post conviction lawyer. I like
to try cases. And I foundout through Elizabeth Simmle that two lawyers in
Birmingham, Charlie Selvaggio and Wilson Myers, would like to meet me. They
(41:00):
heard I'd like to try a case. They were up against it with a
very high profile death penalty case wherea homeless black man was charged with killing
a very beautiful, wonderful white girlin Birmingham, and there was a lot
of tension about the case. Theywere getting death threats on the phone and
(41:22):
there were lots of issues involving thecase. So I flew down to Birmingham
met them. We became instant friends. They Charlie unfortunately passed away in twenty
twenty. Wilson has left Birmingham.He's now the lawyer for at an Indian
reservation. These are just wonderful people, wonderful values. We became instant friends.
(41:45):
So I agreed to be co counselin the case and we started talking
about the case and they told mea couple of things that were disturbing me
a little bit. They said,we're taught never put a client on this
land, and I said, well, can't win certain cases if you don't
put a client on the spand youknow, and if the prosecution rests and
(42:06):
you're not convinced you'd won the case, what do you have to lose?
You know? We talked about themy thoughts on putting clients on the stand.
Only they had been taught to readlightly in opening statement unless you promise
something that you can deliver, AndI said, I think that's a principle
that's kind of thrown around I wastaught that too. I don't think it's
(42:29):
correct. I think in a caselike this, we have to really go
right at him and rock them,sock him an opening statement about how innocent
this man is, and we talkedabout puttaking a homeless man and putting him
on the stand. What's going tohappen et Anyway, we became great friends.
We tried the case and it wasnot guilty, big win for us,
and we just bonded. So everyyear. It's actually almost twenty five
(42:52):
years. I think I put twentythree on my website. I think it's
almost twenty five years. I didthis every year. I did do one
capital case in Mississippi as well thatI brought them into and did everything pro
bono. From my point of view, I never never was paid a penny
for almost twenty five years of goingdown to and Mississippi to do these cases.
(43:15):
I consider these experiences among the greatestmoments of my career. I wouldn't
give them up for anything. AndI really love Birmingham, Alabama. I
have to be honest with you,and people in California will sort of assume
that people are racist in Birmingham,Alabama. It's not true. Some of
the the worst racists I've ever seenare in the West Coast, in the
(43:37):
East Coast, where I was someof the finest judges I've ever seen,
Alabama, Mississippi. I mean,there's so much about the Deep South that
I really love, and I lovemy speriences there. I've had the fairest
of fair juries. In Birmingham.There's so much more fair than Los angele
(44:00):
Us. I could talk at lengthabout it, but you asked about one
case. I think the case Ijust described was one of the greatest ones
I ever was able to do.But I did one a few years ago
in Bessemer, Alabama, which isabout forty minutes outside of Birmingham. It
was a very high profile case.A white man, a father of three
(44:24):
kids, an Iraqi war veteran,a hero, was walking out of his
house one morning at about five fivethirty and as I recall, approximately seven
or eight young black men were breakinginto cars, and to make a long
story short before the white father wasshot to death, and this generated a
(44:45):
lot of publicity in the Birmingham Bessemerarea. I agreed to defend the person
charge of that case probono. Ayoung African American man who they were calling
the shooter, and my friend Charliedid the opening statement. I cross examined
(45:06):
the main accuser. It was anotheryoung African American man who had been breaking
into cars, and said my guywas the shooter. I also put our
guy on the stand and I hadhim. I said, you're going to
have to be totally honest with thisjury. Let them know who you are.
He got on the stand. Hetalked about his upbringing. He talked
(45:27):
about how he was jumped into agang, how they made them sit in
a circle and pass the gun aroundand feel it and make promises, and
he went through the whole thing.He had nothing back, and he told
the jury I didn't have a gunthat night. I didn't want anyone hurt,
and I didn't do the shooting.And he told them who did.
And the jury deliberations went on forabout this I recalled four or five days
(45:49):
and he was acquitted a murder.He was convicted of the break ins,
which under Alabama lawman he got probationon that case. But that's one of
the bigger victories as well. Thatwas not a capital case. It was
aide case. But there's another situationlike the first one I talked about.
I said, they have to hearfrom the client, they have to understand
who the client is. And youknow, for twenty five years, my
(46:13):
friends Wilson and Charlie would listen tome and we didn't always put a client
on, but we did most ofthe time and got a lot of good
results. And I think bringing toyou humanizing your client, showing the jury
or they're a real person with hopes, with dreams, with fears, with
hurts. I mean, I justthink it makes a difference. I mean,
(46:36):
we you know, we say there'stwo reasons to put your client up
as to humanize and to explain.But I think we're so we're always programmed
to lean against it and advise,you know, against it. Listen seminar
the other day to California Attorneys orCriminal Justice, a fabulous organization. It
was in Palm Springs, and Italked about breaking rules and I talked about
(46:59):
putting your client on the stand.And I asked, I began my talk
with the following question, how manylawyers here when they, as soon as
they get in a case, assumethey're putting their client on the stand.
And one person raised their hand,nobody else did, and I said,
well I do. And it completelychanges your perspective on the case because if
(47:19):
you start with the assumption, you'regoing to put your client on, an
assumption that can be overridden later on. If you start with that assumption,
you are immediately from day one,trying to learn who your client is as
a person. What's what their expressions, with their background, with the way
they articulate, what are they sensitiveto, what are they about telling you
(47:40):
want to learn about their life.If you start with the assumption I'm not
putting them on, you have lessof an incentive to learn who the human
being is. In my opinion,great advice, ninety percent of my clients
have taken the stand, and Ireally get upset with say the prosecution rests,
say that puts on some witnesses.Then if Vince says, we're not
(48:02):
sure if we won this, we'regoing to put our client on. And
if your client gets convicted, allthese so called experts you know nothing about
what they're talking about saying it wasa disaster, why do they put the
client on? Well, if youdon't think you've won the case before the
time to make that decision is whynot try it? Why not do it?
(48:22):
But I see these people who neverput anyone on and of terrible trial
records. They're always critical when someoneelse puts the client on the stand and
it doesn't work. Well, thankyou for saying that, Tom, I've
gotten a lot of criticism, andwe put Alec Murdock on the stand,
and you know, I'm still hearingit, you know, But anyway,
(48:43):
I couldn't agree with you more.Early on, after I left the US
Attorney's office, I was appointed torepresenting this kid out of New York.
He was caught up with his cousinsin a big neat drug gang. There's
murders and they were dealing crack cocaine. And he says, mister Griffin,
I didn't deal crack cocaine. Icame down here and I'm selling marijuana.
(49:04):
I wasn't selling crack. And Igo, well, you've got something against
crack. He goes, no,I don't have anything against crack. I
just didn't like the deal that mycousins wanted to do. I can make
more money selling marijuana. And soyou know, he's the only one who
went to trial, and he goton the stand and told that story.
And on cross examination, the prosecutorsaid, well, how did you get
the money to buy the first marijuana? He said stick ups? Oh no,
(49:28):
do you need stick ups? Youknow, well you put a gun
in somebody's face and rob them,because absolutely I did that. And so
in my closing argument, I said, this kid told you what he did,
He told you the truth, andhis troubles are not going to be
over today. But Jerry went backand found him not guilty. I mean,
that was early on in my career. I learned that lesson. It's
a valuable lesson. Well, I'lltell you there was one case I did
(49:52):
in LA where I had a homelessman who had a drug problem, had
been in and out of prison seventimes on drug convictions, and they charge
him with possession for sale. Hewas sitting where he always sat, on
the sidewalk, a lot of peoplerunning away, a lot of cops chasing
them, and he said that therewas a piece of crack on the sidewalk,
(50:13):
but I didn't put it there.And I put him on the stand
and we went through his seven convictions. He said, every time I went
to prison, I deserved it,but I didn't do this here. I
don't deserve it. This, thisis just not right. The jury hung
and then they didn't reprosecute him.So you know, sometimes being honest and
being truthful makes a big, bigdifference, even if you're not a perfect
(50:35):
person. But so many people whodo criminal defense thinking they've got a conviction
that's going to do them as awitness, not necessarily at all. I
don't think so great points. Greatpoints. Well, all right, we
don't want to take up too muchof your time, Tom, because I
know you've got a lot going on. But I cannot thank you more for
(50:57):
joining us. And uh, Imean, nobody knows media and high profile
trials like you do, so itwas really an important topic for us to
talk to you about. I appreciateyou joining us, and I hope that
you will come back if you haveany interesting cases. You're always welcome here
(51:17):
to make a case. And Tom, I know you've been to the South.
You like the South, You've beento Hilton Head. I will invite
you to my island, my islandhouse on De Fusky, right across from
Hilton Head, bring your young familyanytime. You won't about me, I
would love to have have you.What about me and Matt Tom, I
(51:39):
would love to have you and yourfamily visit me on anything you can believe
the ship by the way. Bythe way, Tom said down south Mississippi
and Alabama, so where you're fromdoesn't really cut it. Yeah. Everyone,
I had a wonderful time and youreally appreciate the time. It's a
(52:02):
great show. Thank you, thanks, thank you so much. And let
me just jump in real quick beforewe wrap up to say, if you
haven't followed us already on your preferredpodcast platform, please do so. We're
called The Presumption. We are everywhereincluding on YouTube, YouTube dot com slash
at the Presumption. And speaking ofYouTube, we actually have a little treat
(52:22):
mentioned Michael Jackson a little bit earlierin this episode, and it turns out
Sarah was tasked with a retirement giftthat she sent to me and I just
want to play for you guys againstfor the two people only. It was
it was a judge in Florida.I was a really good friend of mine
who was retiring and they wrote tome and they said, since you can't
(52:43):
make it to the gala, canyou do a retirement speech and video it?
And Senato us and me because I'mso extra and eccentric. I did
a choreographed video to Michael Jackson's SmoothCriminal, which is like my favorite song,
but Matt, don't embarrass me.We'll see, we'll see in the
final edit. Again, thank youguys all so much, very much.
(53:06):
And then at this point Sarah weleft
Hello, everyone, Welcome to thePresumption Podcast. I'm your co host,
Sarah Sorry here with Jim Griffin.Hi, Jim, Hey, Sarah and
Matt Hey. And we have sucha special guest today, someone who I
admire, I work with, I'veknown for many years. Tom Masero.
Tom. Welcome to the Presumption.Thank you, Sarah and Jim. I'm
(00:45):
really looking forward to it. Thankyou so much for me. Thanks so
so Tom. Everyone knows Tom.Tom is usually known as the Michael Jackson
lawyer, but he's so much morethan that. You're described as an unconventional,
unpredictable try lawyer, which you verymuch are at Your accomplishments in the
(01:08):
courtroom are extraordinary, unprecedented, andof course you quitted Michael Jackson in his
world famous you know, five anda half month. I didn't realize it
was that long trial in Santa Barbara. He was acquitted on all fourteen counts
and a child mole station indictment.I'll be talking to you about that,
and Jim is going to talk toyou about the Bill Cosby trial. You've
(01:30):
also represented Mike Tyson, a lotof different celebrities and non celebrities, and
I am most impressed by your work, Tom, all of these years,
twenty three years in the South doingpro bono work murdered cases, capital cases
in Mississippi and Alabama. And ofcourse you probably don't remember this, but
(01:52):
I met you in the legal clinicat the Personality Church where I was a
young lawyer, and I think itwas Tony Brookley or my mentor, and
your friend said you need to goand help out Tom Mezziro's running this clinic,
And of course I came in,and a couple months later you got
swept away to the Michael Jackson trial, and then I went in with the
(02:15):
team on the Blake case. Soit's been this revolving thing. But since
then we've had a lot of federalcases together, co defendants here and there,
and so very very very much lookingforward to Jim and I having this
discussion with you. So I'm goingto turn it over to Jim with sort
of a pressing question that he wasasking me the other day, and I
(02:37):
said, save it for Tom.Yeah, Hey, Tom, how are
you all right? Yeah? Good. You probably don't remember, well,
you may have remembered the trip toHilton Head, South Carolina. I think
it was shortly after the Michael Jacksoncase, and you came to speak to
the South Carolina Trial Lawyers Association onHilton Head and and new topic that you
(03:00):
know, it was about how tohandle the media in high profile cases.
You know, Sarah, that wasfifteen twenty years ago maybe now, so
you know Tom has been speaking onthis topic long before we ever thought about
the Presumption podcast. But Tom,I remember then that you seem to exkew
(03:22):
the media and that you did notengage the media, you know, with
interviews during the course of these highprofile trials. Now I may be wrong
about that, I may be misremembering, but but you know, we had
a we had a three years ina row. We went from you.
I think we had Garret Goes andNancy Grace and so of the three,
(03:43):
I remember you being the one who'swho was most shy with the media.
And I've handled a lot of mediacases. I just feel, you know,
I'd like to get your perspective onas a lawyer when you're dealing with
something that as hot as Michael Jacksonor my case, the Murdock case,
or any case with local attention,you know, what's your approach to the
media. Well, there are somegeneral thoughts I have about the media,
(04:06):
and there are case specific thoughts Ihave about the media. I'm going to
ask you about the Michael Jackson casespecific stuff because I did a deep dive.
Let me just say this, Beforethe Michael Jackson case, I was
in the Robert Blake murder case andwe had a preliminary hearing. And the
week before the preliminary hearing, Igot a call from the judges clerk asking
(04:30):
if I had any objection to camerasin the courtroom for a preliminary hearing,
and I said I would get backto her, and I did, and
I said, I have no objectionto it, knowing full well that the
District Attorney's office had a written policythat they don't encourage or object to cameras
in the courtroom. So I hada feeling they were going to be in
there. And I think most lawyerswould have said, how is my client
(04:53):
going to look good in a preliminaryhearing. It's not going to happen.
And I had a feeling of Ihad a real feeling about Hoobris. When
it came to the prosecutors in thatcase, they were like feeling no pain.
They thought they really had this thingwired. It was Shelley Samuels,
right, who's now a judge.She came in later on they hearing,
(05:16):
so I also had been late toenter the case, so I figured they
didn't think I knew it that well, and I ended up treating the preliminary
hearing on camera like a trial.I was cross examining the daylights out of
their witnesses. It was all beingpreserved on videotape, and that's the case.
It gave me some national recognition Ihad none before that. So turning
(05:40):
that preliminary hearing into a media typeevent I think ended up helping the client
tremendously because these witnesses. They decidedto showcase a lot of witnesses that I
don't think they even needed to call. You know, in californiarew's hearsay.
You're a prosecutor can introduce hearsay intoa preliminary hearing in a way that you
(06:00):
can't at trial. So I thinkby showcasing so many witnesses and letting them
be attacked on camera like it wasa trial, it boomeranged on the prosecution.
In fact, at Court TV atthe time, which was covering the
preliminary hearing, eighty percent going intothe pre limb thought he was guilty,
and after three weeks of this typeof behavior in my part, eighty percent
(06:25):
thought he was not guilty. Itwas an amazing turnaround. So there's an
example where I said bring the mediain. The Jackson case was exactly the
opposite. I said, keep themedia out of the court room. I
had a feeling there a number ofthings I felt about it. One,
I didn't want witnesses watching what otherwitnesses were saying on TV before they showed
(06:46):
up. I just got feeling that'snot going to help us. I also
knew that the judge would probably appreciateor trying to make his job easier on
when it came to cameras in thecourtroom, Mark Ragos had been the prior
counsel and he wanted cameras in.He had appealed the judge's gag order keeping
(07:11):
cameras out, and I dismissed theappeal because I just thought, I guess
what I'm saying is it's a caseby case and in general something it tends
to make lawyers do if they're notcareful as they think the media is sot
of the courtroom. It's not twelvejurors in a courtroom and a judge.
(07:33):
They're the thirteen people that mean themost, and you can't lose sight of
that. No. I remember someother lawyers used to say, we condition
the jury before we get into trial, and it makes a big difference in
the courtroom. I think that's exaggeratedthere. I don't care where you are
in the United States. Take itvery seriously, try to follow their oath
(07:58):
as best they can. They're humanbeings, they're not perfect, but they
really want to do a good job. And they're the ones that watch what's
going on and feel what's going onbecause they're in the courtroom. You can
watch a trial on TV and notfeel what's going on because you're not there,
and you can come to very differentconclusions in my opinion, about how
(08:18):
well people are doing or how wellthey're not doing. You never really know
the strategy the lawyers have, howone witness will connect with what another witness
says, etc. But I thinkyou've got to be very careful with media.
If you make it too much ofa circus, you may be giving
your client, you know, adisservice. Yeah, I generally don't like
(08:43):
them in the courtroom, but Blakewas an exception. Tom. You know,
we also know unfortunately lawyers who wantcameras for self serving purposes because they
want to put their own performance onfull display where it doesn't even you know,
(09:05):
and you were, I mean,Robert Blake, you did a phenomenal
job at the preliminary hearing because aswe all know here, it's not it's
not common to get a client outon bond h on a murderer prelim,
so it was it was a tremendousuh stride in that case. And your
(09:26):
cross examination was brilliant. I cansay this because we came in after you
and and a lot of you know, the additional work that had to be
done was slim to none, youknow, with respect to those stunt men
that the prosecution had as witnesses whowere completely shady, and a lot of
that came out on your on yourcross But you know, the I I
(09:50):
mean, I don't know what Jim'sposition is, but I always say it's
a case by case basis too,because like I don't know, if you
remember the end on John case thatI helped Tony on Brooklear here. There
were so many accusers whose credibility wasjust terrible, and we wanted that to
be seen, you know, wewanted that to be televised. And so,
(10:11):
you know, it really does dependon the case. But when you
went to down by Jim to HiltonHead, you really blasted. It wasn't
it wasn't just you know, Jim'smaking it sound all nice. I mean
you really blasted. You blasted courtTV. You said that you know that
your case was very different from OJ. How did you see that progression?
(10:35):
I mean, what is it aboutmedia coverage that changed for you from OJ
to Michael Jackson. Well, obviouslythe defense lawyers and OJ did a fabulous
job, and I'm sure they wouldn'tchange any decision they made because they got
an acquittal in what looked to melike a very difficult case. Yeah,
(10:56):
cameras in the courtroom seem to havedone them well. I was very concerned
about the circus like atmosphere in MichaelJackson, and I just had a very
strong feeling that narrowing things down towhat was in the court room as opposed
to letting witnesses all watch on adaily basis what's going on. Let them
(11:18):
see what other people are saying,let them see what the judge is saying
to the lawyers. I just didn'tthink that was going to help us.
Was it that there were more spectatorson Michael than there were on OJ?
I mean, OJ was a footballplayer who was a celebrity, et cetera.
But you mentioned something about people fromAsia and people from different places following
(11:41):
the Michael Jackson trial. Well,the OJ case was nine months long.
Michael Jackson trial was about five monthsfive and a half months. The OJ
case took over America. The MichaelJackson case, because it was not televised,
did not take over America the wayOJ did. But around the world
world, there's never been a casefollowed quite like it. Yeah, because
(12:03):
Michael Jackson was, without a doubt, the most famous person in the world.
I know, verdict day, peoplein capitals all over the planet were,
you know, watching to see whatthe verdict was. So there were
different kinds of cases and different charges. Obviously, I think the charge of
child molestation is a particularly disquality stingcharge. I think of being charged with
(12:30):
charge or being accused the child molestationis worse than being accused of murder.
Yeah, So I just wanted totone it down a bit. I didn't
have a good feeling about the mediain the court room to that extent,
and I followed my gut, Well, I feel like you've said the man's
name several times now. I wouldlove to hear Sarah's deep dive. What's
(12:52):
my deep dive on uh? OnMichael Jackson, he said, you were
prepared with a bunch of questions here. Oh yeah, no, there's just
I just have a few more questionsbefore I turn it over to Jim.
On Bill Cosby, you know,one of the things that we always say
is that you know, there's victimblaming as a no no, and you
(13:13):
really sort of got pretty close toI mean, you were victim blaming.
You were saying that, you know, these victims just wanted to live and
neverland forever. And so what wasthe strategy call behind that? You know,
as you said, child molestation chargesare sensitive, you know sensitive charges.
(13:35):
Well, let me say this.When the prosecution rested, I felt
I had done more effective cross examinationsthan probably any time in my career,
and I felt that ninety nine pointnine percent of criminal offense attorneys probably would
have rested because I felt at leasta hung jury was guaranteed. I didn't
have a feeling that an acquittal onevery count was necessarily guaranteed by using cross
(14:01):
I felt because the charges were soawful, and because the attacks, even
afforded a little bit, were sodisquieting, I felt I had to put
a counter narrative on which would showwhat Neverland really was about, what Michael
Jackson really was about, and puton our own counter narrative for the jury
to take into the deliberation room.After the trial. I was on Larry
(14:28):
King, and Larry King said ifyou talked to any jurors, and I
said, no, I'd love to, but I would never approach them.
Next to a call from the fourperson saying, a bunch of us would
love to meet with you. Wesaw you and Larry Canyon were happy to
meet. So I met with them, and I ran that by the jurors,
and I was told, in nouncertain terms, you would have hung
(14:48):
jury if you had just rested whenthe prosecution rested, you would not have
gotten acquittals on everything. We hadto hear your story. We had to
find out more about these accusers,who Michael really is. So fortunately,
I followed my gut. We calledabout forty two witnesses in the defense case.
There was a short rebuttal by theprosecution and it went to the jury.
(15:13):
I think your question is, lookthis issue of reasonable doubt I talk
about a lot, and I thinklawyers get too hung up on what reasonable
doubt is sometimes, and reasonable doubthas been thrown around enough now on court,
on trials that are televised on TVshows, based upon what lawyers supposedly
(15:37):
do. And I think most jurorswhen they walk in the courtroom want to
know what the truth is, andthey think the lawyers know the truth.
We may or may not, butthey think we do. If you start
off just talking about presumptions of innocenceand reasonable doubt and burdens, I think
the message of the jury is,you know that this is a smart lawyer
(15:58):
trying to block us from really seeingwhat happened. Theicality is here in technicalities
there. I like to get upan opening statement and have the jury here
that we know what the truth isand we're not afraid or words to that.
I mean, you don't necessarily sayit that way, right, You
want to convey that I'm not hereto throw roadblocks in your way. I'm
(16:21):
here to let you know this personis not is not guilty. So speaking
to that transparency that you start withan opening statement, It was also really
interesting to me that you know,when you were cross examining these witnesses in
Michael Jackson, there was a lotof hostility. They got very defensive,
specifically the cuser's mom, and yourepeatedly with every witness, would say,
(16:48):
my name is Tom Mazero, andI speak for mister Jackson. Why the
repeated reminder. I wanted the witnessto hear that, and I wanted the
jury to conclude that I'm being honestwith the witness because a lot of witnesses
come into a criminal court room,they're intimidated, they don't know what the
process is. You don't know whatpeople have said to them or not said
(17:11):
to them. And I just wantedto be very clear in front of the
jury that I'm being straight with thiswitness. I am here defending Michael Jackson.
I'm on his side. I thoughtit would be a very good way
to start off. No, itis. I just never I'd never come
across that sort of repetition, andyou know, it was interesting because the
accuser's mother got really ticked off,pointed the finger at you and said he's
(17:34):
wrong. And then I think ofMichael Jackson's security guard whimpered and he wants
to just go home, and acomedy club owner, you know, sort
of got into it with you andthen told you that you happen to be
funnier than another comedian that you guyswere that he was being questioned about.
(17:55):
But you know, Tom, anothersort of reason why Jim and I are
so dedicated to this platform is becauseof how mental illness substance abuse has really
been sort of thrown to the side. Uh, as we see in our
cases. It's supposed to mitigate,but it's almost like, you know,
(18:15):
really a lot of judges don't reallytake it into consideration. And so,
of course, sadly, a fewyears after this acquittal, Michael Jackson lost
his life to a ventanyl overdose thathad to do with doctor what does it
Murphy Murray, I can't remember hisname, who was also the yeah on
(18:36):
propofol sorry faentanyls today's thing, butyeah, propofol. I was confusing him
with Prince, I guess because Princewas fentanyl, so uh, what what
was your Did you have any awarenessthat Michael Jackson might be struggling? Of
course he had, you know,you use some of his Essentially, you
(18:57):
portrayed him as the victim, partlyin his defense. And so did you
notice that there's a cry for helpor that he needs help, or how
much of that came into your workwith him and maybe even defending him.
Well, first of all, hewas charged with conspiracy. He was charged
(19:18):
with conspiracy to falsely imprison a family, conspiracy to commit extortion, I mean
conspiracy to commit child abduction. Theseare the most ridiculous charges I've ever seen
in a courtroom. To think MichaelJackson was even capable of imagining leading a
criminal conspiracy like this as absurd,and I wanted the tread to know absurd.
(19:41):
It was part of our theme inour defense case, or as I
said before, we called a lotof witnesses, was to show that people
around Michael Jackson were taking advantage ofhim, that he was a very vulnerable
person who, given his sensitivities,given his amazing talents, given the fact
that he danced to a different drummer, he was very an artist like we've
(20:04):
never seen and not necessarily the mostsolid person when it came to how to
handle finances putting all this together,people were taking advantage of them left and
right, and far from Renney conspiracy. If anyone was a victim of a
conspiracy, there were a lot ofconspiracies around him taking advantage of him.
(20:26):
That was one theme, not theonly theme, but that was one theme
we promoted. I didn't I neverknew what Michael Jackson was taking in terms
of medication. I assumed he wasdealing with sleeplessness and depression and anxiety like
anybody does in a try that oranybody's position. So I know he had
(20:49):
a physician. I assumed he wasgetting treated like anybody would. I mean,
many people taking anxiety medication, theytake sleep medication, whatever they need,
depression, you name it. Togo through a five month trial being
charged with horrendous accusations like that,you know, I would not have been
(21:11):
surprised if he was taking some medication. But I never asked him. I
see him take the trial very hard. He lost way, He started more
and more pale, his eyes gota little more bloodshot. I mean,
he was a terrible experience for him. But I never thought any he was
doing anything that would be fatal,and he will always always was coherent with
me. Yeah, in our discussion. Yeah, I mean it is.
(21:34):
It is a progressive disease. Andso you know this this obviously, this
all happened years after the acquittal,but I was just curious if there was
anything that you noticed at the time. My last question on the Michael Jackson
trial is change of venue. Thisis of course it has been an issue
(21:55):
for Jim in his case, inAlec Murdoch's case, and you know that
Saga is not and so if hedoes get a new trial, there might
be some considerations there for them.Obviously a different part of the nation,
very different part of the nation.But did you seek I think you sought
change of venue? We're thinking ofseeking a change of venue or how did
that play out in Michael Jackson.Well, the case was tried in Santa
(22:18):
Maria, California, which is northernSanta Barbara County, and there was a
lot of pressure on me to makemotion to change venue. And before the
trial started, I hung out aloneat various bars and restaurants in that community.
I would go in with just myblack leather jacket and hang out at
a bar, and people would comeover sometimes to say, are you Michael
(22:41):
Jackson's attorney, And I would sayyes. And I wanted to feel for
that community because I had never trieda case in Santa Barbara County, and
I got the impression that the peopleof that community liked Michael Jackson. They
didn't like the charges. This wasa very blue collar, very conservative,
(23:03):
very libertarian actually community where the feelingwas, you know, government, police,
district attorney, don't go too farwith us because we are law abiding
people. We don't like government intrudingtoo much, but we don't like crime.
So they had a very high convictionrate in the courthouse. But I
just Michael lived in that community,employed one hundred people that never land.
(23:26):
And I thought to myself, ifI if I make an emotion to change
venue and it succeeds, where arewe going to go? We go north
to Bakersfield, where Michael would haveno. Yeah, it's not where we
lives, not more shops, notwhere we hired people. We could go
south to Ventura County, which meanswould be something similar, very conservative,
(23:47):
but Michael doesn't live there. Michaelhad made some statements that he loved his
community and look forward to being vindicated. I just decided we're better off where
we are, right, and itturned out to be right. But I
was from all sorts of people,people in my own camp, people on
the media. Why isn't he seekinga change of venue? And that was
(24:07):
the reason. No, it makessense. I'm turning this over to Jim
because Bill Cosby was another huge trialof yours. Yeah, before we get
to that, I've just was MichaelJackson's jury sequestered. Tom. I didn't
ask, I didn't answer to besequestered either. I thought being sequestered for
(24:29):
six months would make you angry anduncomfortable to say the lead. Yeah,
and I didn't want to do that. Yeah. And now as the O.
J. Simpson jury was sequestered andthey ended up favorable to the defense,
but I just didn't want these peopleto be so uncomfortable, as as
being sequestered will make anybody. SoI took a chance, and that you
(24:52):
know, that's been my approach,particularly when I have a defense to put
up, because it's been my experiencewhen when you this state finally rest,
I mean the jury has worn outand they want to go home, and
then they don't really pay much attentionto you. And and they think you're
you know, you're wasting their time, or it's just an unhappy jury.
This sequestered. And so you know, we made the decision in many big
(25:15):
cases not to sequest of the jury. For better or worse. I'm not
sure how it worked out in thislast case, but I was curious about
your approach. So, Bill Cosby, you know, I know that was
a tough, tough case for you. He was America's dad. You know,
I grew up watching Bill Cosby,grew up watching Jello commercials, and
(25:37):
and I was and I went tosome of Bill Cosby's comedy routines, and
and he did a lot of alot of good And he did some charity
events in South Carolina after Hurricane Hugo, and and and you were the trial
attorney, and and and he wasfound guilty there it was shocking to most
of us. I was in theretrial at that You're the first trial,
(26:00):
hung I was not part of thattrial. Nicely, and then then you
had the retrial. You did aclearly a fantastic job with the record and
and you know, I mean,we all we went some we lose some
Sarah's friend Jenny Bonjean was able toget it reversed on appeal. But tell
(26:21):
us your thoughts about defending Bill Cosbyin a spotlight that he was in and
how the media, you know what, I believe convicted him well before the
trial started. Well, first ofall, mister Cosby is one of the
nicest people I've ever represented. Hewas very, very respectful, very kind,
very nice, very cooperative, andone of the nicest clients you could
(26:41):
ask. For that trial. Judgewanted to make sure there was a conviction
in a retrial, and what hedid was he changed a number of his
rulings from the first trial. Heupped the number of unrelated alleged victims from
one to five. In the retrial. We're talking about some claiming things that
(27:03):
have allegedly happened twenty five thirty yearsago. I let this stuff into the
courtroom. I mean, one womanin Las Vegas claimed that she had been
sexually assaulted almost thirty years ago.Well, how do you find witnesses?
How do you find forensic evidence?When you do then an accusation like that,
(27:26):
I think when the judge let thatmaterial end, it was so obvious
that we were going to We hada judge who wanted a conviction. I
had four repellate lawyers on the team. This is the best record I've ever
seen made in a criminal case.They were filing objections, mimosa points and
authorities every day, motions for mistrialevery day. And the record on the
(27:49):
issue that he was reversed on hadto do with a prior representation by a
district attorney that he was not goingto be prosecuted. The attorney encouraged him
and actually almost mandated that he takea civil deposition because there was no Fifth
Amendment issue because they weren't going toprosecute him. This was really a contract
(28:14):
in an agreement. There had beena hearing before the first trial, again
which I wasn't part of, whichwas conducted by another attorney who did an
excellent job. I mean, ifyou read the transcript, she did an
excellent job of calling witnesses, questioningwitnesses, and we thought the record was
so complete on that issue that wedidn't have another hearing on it because those
(28:37):
witnesses could have come in, theycould have changed their stories, they could
have embellished. Who knew what wasgoing to happen, so we were allowed
to take that earlier record and insertit into our record, which became the
dispositive evidence that got a reversal.But we raised every appellate issue on the
planet at the trial level, andI'm glad we did. Unfortunately, he
(29:02):
was convicted, spent some time inprison where he didn't belong, which he
didn't deserve, and the media wasawful. I mean, Bill Cosby had
a publicist, a friend of mine, Andrew Why did a fabulous job as
best he could, but it wasa bias media. It was the first
(29:22):
me too case right on a celebritytype level that I'm aware of, and
it was not fair at all.The court room was hostile, the judge
was hostile, The rulings were clearlystill there. I mean there was there
was an exorbitant amount number of youknow, for four b women that you
(29:44):
know, we're just trying to getin and get their day in court where
their statutes had run and you knowthose were it kind of I mean,
it really is akin to Jim's case. In Jim's case, all of this
financial evidence came in in a murdertrial to show that his client it was
a liar and you know, andthen he was just I mean, it
was done at that point, andand and in cosby, I think it
(30:07):
was like, you know, inthat me too sort of, we're still
in that me too moment where youknow, everyone is welcome to take the
stand and get their day in court. I made a motion to disqualify the
judge. Yeah, set him soobviously, and I think we had to
do that. Now, Tom,did you do that during the course of
the trial or pre trial pre trial? Yeah, and the judges qualified as
(30:33):
bias was so obvious. There weresome actual reasons we thought were very compelling,
and of course he denied our motion. What were the reasons? He
asked me. At one point hesaid, who is responsible for this?
I said, I am. Isaid, were a team to get we
all worked together, but I'm theone responsible for it. He didn't like
it one bit. Yeah, So, Tom, I'm sure you feel the
(30:56):
same as I do. I mean, the prosecutors have an ethical obligation not
to overreach, and clearly in theCosmic case, they did overreach, and
the judge allowed them overreach. Soyou know, what's your thoughts about the
ethical obligation of the prosecutor to ensureit's a fair trial, not a trial
they can win at all cost.Look, there's no one I respect more
(31:18):
than a courageous, professional, balanced, responsible prosecutor, someone who can handle
the enormous power they have to hurtpeople just by accusing them. And such
prosecutors do exist, but they're fewand far between, particularly when you have
a lot of media around, becausecameras affect everybody. I mean, the
late Robert Blake said to me,cameras are like drugs. They're like,
(31:42):
okay, you know, nobody canresist them. And when you see a
camera anywhere and a lawyer nearby,expect the lawyer to be affected, and
prosecutors will start acting like people they'reprobably not of a situation and other settings.
So when you get a high profilecase with a prosecutor who sees cameras
(32:06):
and who's a politician to begin with, that's how they get in office.
Expect trouble now once you run intopeople who are very mature and very professional
and credit to the system, butnot not too often well, and it
was it really was a political hitjob, if you think about it,
because it was the DA before thisDA. This DA was running again.
(32:28):
My understanding is and the d beforeis the one that said, you know
you have immunity, go ahead andtestify in this uh in this in this
civil deposition. And then the newguy came out and said no, and
we're not bound by that. AndI always think, you know, a
lot of what we do, especiallyyou know on the federal side, when
(32:49):
we bring our clients and to profit, you know, there is a lot
of it is based on you know, sort of this honor system, this
trust that we have. You know, they don't want to promise as a
specific result until they hear from theclient. And so it's just it was
so upsetting to me that he wasindicted in the first place. Well,
(33:09):
it's a little worse than you've evendescribed. The DA before who made the
agreement not to prosecute Bill Cosby,running against someone who became the trial judge.
Oh jesus, And it was abitter campaign. So here's what happens.
(33:29):
The da who made the agreement notto prosecute runs against the person who
became the trial judge. Fast forwardto the Cosby case. The trial judge
is presiding over a hearing to dismissthe case, where the former da IS
rival is the main witness because he'sthe one that entered into the non prosecution
(33:52):
agreement, and the trial judge,his old bitter rival, rules that he
lacks credibility and denies the motion.Oh god went out. Yeah, truth.
The case was filled with injustice,fill with politics, and mister Cosby
should never have had to go throughthat. Tom as a lawyer, in
(34:15):
going through that with the clients suchas mister Cosby, and you see the
injustice happen before your eyes. Imean, how do you How do you
just fold up your briefcase and headback to the office without carrying it all
with you or can you do that? I don't think you can do that
so easily. I mean, Ithink some people do it better than others.
(34:37):
The problem is that to really beeffective, in my opinion, as
a criminal offense lawyer, you haveto have some emotional involvement with the client.
You know, we're I remember earlierin my career all these so called
trial gurus saying you've got to beobjective. You can't lose your objectivity,
don't get too emotionally involved, don'tlet your passions get too involved. And
(35:01):
I remember the late Joe Jamail fromHouston, one of the best civil trial
lawyers in history. He wrote abook that I read, and he said,
Look, I don't understand these peoplewho say you've got to be completely
dispassionate and objective. You have tobe emotionally involved. You have to you
have to feel your client's feelings.You have to understand the client, and
(35:22):
if you do that, you aremore vulnerable with the kinds of stresses we're
talking about. But I think it'sinevitable. If you're going to be any
good you can't just become hard boiledand calloused and insensitive and desensitized. You
won't be active and you won't doa good job for the client. Now,
there are some lawyers in our professionwho become that way. They just
(35:45):
suddenly seem to lose any emotional connectionto the client, or even any desire
to have an emotional connection with theclient. But I don't think and you
can be possibly be that effective unlessyou have some Yeah, Tom, I
couldn't agree with you more on thatpoint and your prior point about cameras having
(36:06):
the effect on prosecutors and the participantsin the trial. And let me ask
you, there's probably nothing you couldhave done differently. But looking back twenty
twenty hindsight on the Cosmy trial,is there something that that that choices you
think, you know you would havemade different choices knowing what you know now
(36:28):
you know? Not really. Ithink we had a great team. I
think we made a as I saidbefore, the best record for appeal I've
ever seen in a criminal case.On a daily basis, we were doing
that. I think some of thememorandums of points, the authorities on for
or four B type witnesses on thenon prosecution agreement, I think I've never
(36:50):
seen a better brief trial record.And I had a wonderful client who is
very, very bright guy. Isaw the way the media and the country
was turning against us, and wedidn't get a fair trial. Thank god
for the Pennsylvania Supreme Court. Theyrecognize that. If you read that opinion,
(37:13):
it's pretty blistering about what before us, about the lack of fundamental fairness,
I mean, the due process issues. That's how I look at the
trial. I think we had verygood lawyers and did our very very best
in a very difficult, unfair situation. Eventually, Bill Cosby prevailed, thank
(37:35):
god, but it was a toughroad for him, and a very unfair
road. He should never have beenin that courtroom on trial to begin with.
Yeah, it's so difficult to defendagainst, you know, just the
one charge against you, But whenthe state or the prosecutors are allowed to
bring in other allegations of criminal misconductthat you're not even charged with, and
(37:58):
you just get this avalanche and it'shard for the jury to disregard that.
I mean, there's certain instructions,the juries are given as to how they're
supposed to treat that evidence, butI mean, it just dirties the guy
up and he has no chance atthat point in time. I suspect that
we experienced that with the Cosby case. Well, that's certainly true. And
(38:19):
as I said before, how doyou go back twenty thirty years and investigate
an allegation like that, Where doyou find the liking, where do you
find the forensic evidence, where doyou find anything? It's so unfair,
it's piling on, it's going wayoutside of the record to absurd. Well,
and now you know, on thecivil side of this is the look
(38:42):
back window laws. You know thatthat allow you know, Cosby now has
an eighty something year old accuser who'scoming out, you know, seeing something
happened to her fifty years ago,and it's like, what witness do you
get out out of what grave?You know to be able to come in
and testify in defense? I mean, it's just it's ridiculous. And you
made a really good point on me. I always say, you know,
(39:06):
you know, when people law studentsask me about criminal defense, I say,
you have to be passionate and thisis not nine to five and it's
pretty thankless sometimes, you know.So we are a different breed and I
think that if you're not available atall times invested, it's just not It's
like you said, it's not effectiveand you're not for this job. But
(39:30):
we want to close with your probono work because it's absolutely incredible that for
twenty three years you would travel downto the south to Alabama, Mississippi every
year, I think in the summer, and you would I guess, work
with local council down there and pickup a capital case or murder case and
take it to trial. How didthat come about? And you know what
(39:52):
was your most notable win in thesetwenty three years, Well, in brus
nineteen ninety six, I traveled toBirmingham, Alabama to meet two lawyers who
became dear friends of mine, andI met them through Elizabeth Simmel, who
is a professor at University of CaliforniaBerkeley School of Law, which is a
(40:15):
capital case seminar. She was inWashington, d c. She was the
director of the American Bar Association's DeathPenalty Representation Project, and I met her
through a friend, Jennifer Keller,a great lawyer. Yeah, I wanted
to try some cases if I could. You know, most of the work
(40:36):
that we're talking about when lawyers comefrom outside the state to deal with a
capital type case, they're dealing withappeals, habeas petitions, that kind of
thing. I'm made very clear I'mnot a post conviction lawyer. I like
to try cases. And I foundout through Elizabeth Simmle that two lawyers in
Birmingham, Charlie Selvaggio and Wilson Myers, would like to meet me. They
(41:00):
heard I'd like to try a case. They were up against it with a
very high profile death penalty case wherea homeless black man was charged with killing
a very beautiful, wonderful white girlin Birmingham, and there was a lot
of tension about the case. Theywere getting death threats on the phone and
(41:22):
there were lots of issues involving thecase. So I flew down to Birmingham
met them. We became instant friends. They Charlie unfortunately passed away in twenty
twenty. Wilson has left Birmingham.He's now the lawyer for at an Indian
reservation. These are just wonderful people, wonderful values. We became instant friends.
(41:45):
So I agreed to be co counselin the case and we started talking
about the case and they told mea couple of things that were disturbing me
a little bit. They said,we're taught never put a client on this
land, and I said, well, can't win certain cases if you don't
put a client on the spand youknow, and if the prosecution rests and
(42:06):
you're not convinced you'd won the case, what do you have to lose?
You know? We talked about themy thoughts on putting clients on the stand.
Only they had been taught to readlightly in opening statement unless you promise
something that you can deliver, AndI said, I think that's a principle
that's kind of thrown around I wastaught that too. I don't think it's
(42:29):
correct. I think in a caselike this, we have to really go
right at him and rock them,sock him an opening statement about how innocent
this man is, and we talkedabout puttaking a homeless man and putting him
on the stand. What's going tohappen et Anyway, we became great friends.
We tried the case and it wasnot guilty, big win for us,
and we just bonded. So everyyear. It's actually almost twenty five
(42:52):
years. I think I put twentythree on my website. I think it's
almost twenty five years. I didthis every year. I did do one
capital case in Mississippi as well thatI brought them into and did everything pro
bono. From my point of view, I never never was paid a penny
for almost twenty five years of goingdown to and Mississippi to do these cases.
(43:15):
I consider these experiences among the greatestmoments of my career. I wouldn't
give them up for anything. AndI really love Birmingham, Alabama. I
have to be honest with you,and people in California will sort of assume
that people are racist in Birmingham,Alabama. It's not true. Some of
the the worst racists I've ever seenare in the West Coast, in the
(43:37):
East Coast, where I was someof the finest judges I've ever seen,
Alabama, Mississippi. I mean,there's so much about the Deep South that
I really love, and I lovemy speriences there. I've had the fairest
of fair juries. In Birmingham.There's so much more fair than Los angele
(44:00):
Us. I could talk at lengthabout it, but you asked about one
case. I think the case Ijust described was one of the greatest ones
I ever was able to do.But I did one a few years ago
in Bessemer, Alabama, which isabout forty minutes outside of Birmingham. It
was a very high profile case.A white man, a father of three
(44:24):
kids, an Iraqi war veteran,a hero, was walking out of his
house one morning at about five fivethirty and as I recall, approximately seven
or eight young black men were breakinginto cars, and to make a long
story short before the white father wasshot to death, and this generated a
(44:45):
lot of publicity in the Birmingham Bessemerarea. I agreed to defend the person
charge of that case probono. Ayoung African American man who they were calling
the shooter, and my friend Charliedid the opening statement. I cross examined
(45:06):
the main accuser. It was anotheryoung African American man who had been breaking
into cars, and said my guywas the shooter. I also put our
guy on the stand and I hadhim. I said, you're going to
have to be totally honest with thisjury. Let them know who you are.
He got on the stand. Hetalked about his upbringing. He talked
(45:27):
about how he was jumped into agang, how they made them sit in
a circle and pass the gun aroundand feel it and make promises, and
he went through the whole thing.He had nothing back, and he told
the jury I didn't have a gunthat night. I didn't want anyone hurt,
and I didn't do the shooting.And he told them who did.
And the jury deliberations went on forabout this I recalled four or five days
(45:49):
and he was acquitted a murder.He was convicted of the break ins,
which under Alabama lawman he got probationon that case. But that's one of
the bigger victories as well. Thatwas not a capital case. It was
aide case. But there's another situationlike the first one I talked about.
I said, they have to hearfrom the client, they have to understand
who the client is. And youknow, for twenty five years, my
(46:13):
friends Wilson and Charlie would listen tome and we didn't always put a client
on, but we did most ofthe time and got a lot of good
results. And I think bringing toyou humanizing your client, showing the jury
or they're a real person with hopes, with dreams, with fears, with
hurts. I mean, I justthink it makes a difference. I mean,
(46:36):
we you know, we say there'stwo reasons to put your client up
as to humanize and to explain.But I think we're so we're always programmed
to lean against it and advise,you know, against it. Listen seminar
the other day to California Attorneys orCriminal Justice, a fabulous organization. It
was in Palm Springs, and Italked about breaking rules and I talked about
(46:59):
putting your client on the stand.And I asked, I began my talk
with the following question, how manylawyers here when they, as soon as
they get in a case, assumethey're putting their client on the stand.
And one person raised their hand,nobody else did, and I said,
well I do. And it completelychanges your perspective on the case because if
(47:19):
you start with the assumption, you'regoing to put your client on, an
assumption that can be overridden later on. If you start with that assumption,
you are immediately from day one,trying to learn who your client is as
a person. What's what their expressions, with their background, with the way
they articulate, what are they sensitiveto, what are they about telling you
(47:40):
want to learn about their life.If you start with the assumption I'm not
putting them on, you have lessof an incentive to learn who the human
being is. In my opinion,great advice, ninety percent of my clients
have taken the stand, and Ireally get upset with say the prosecution rests,
say that puts on some witnesses.Then if Vince says, we're not
(48:02):
sure if we won this, we'regoing to put our client on. And
if your client gets convicted, allthese so called experts you know nothing about
what they're talking about saying it wasa disaster, why do they put the
client on? Well, if youdon't think you've won the case before the
time to make that decision is whynot try it? Why not do it?
(48:22):
But I see these people who neverput anyone on and of terrible trial
records. They're always critical when someoneelse puts the client on the stand and
it doesn't work. Well, thankyou for saying that, Tom, I've
gotten a lot of criticism, andwe put Alec Murdock on the stand,
and you know, I'm still hearingit, you know, But anyway,
(48:43):
I couldn't agree with you more.Early on, after I left the US
Attorney's office, I was appointed torepresenting this kid out of New York.
He was caught up with his cousinsin a big neat drug gang. There's
murders and they were dealing crack cocaine. And he says, mister Griffin,
I didn't deal crack cocaine. Icame down here and I'm selling marijuana.
(49:04):
I wasn't selling crack. And Igo, well, you've got something against
crack. He goes, no,I don't have anything against crack. I
just didn't like the deal that mycousins wanted to do. I can make
more money selling marijuana. And soyou know, he's the only one who
went to trial, and he goton the stand and told that story.
And on cross examination, the prosecutorsaid, well, how did you get
the money to buy the first marijuana? He said stick ups? Oh no,
(49:28):
do you need stick ups? Youknow, well you put a gun
in somebody's face and rob them,because absolutely I did that. And so
in my closing argument, I said, this kid told you what he did,
He told you the truth, andhis troubles are not going to be
over today. But Jerry went backand found him not guilty. I mean,
that was early on in my career. I learned that lesson. It's
a valuable lesson. Well, I'lltell you there was one case I did
(49:52):
in LA where I had a homelessman who had a drug problem, had
been in and out of prison seventimes on drug convictions, and they charge
him with possession for sale. Hewas sitting where he always sat, on
the sidewalk, a lot of peoplerunning away, a lot of cops chasing
them, and he said that therewas a piece of crack on the sidewalk,
(50:13):
but I didn't put it there.And I put him on the stand
and we went through his seven convictions. He said, every time I went
to prison, I deserved it,but I didn't do this here. I
don't deserve it. This, thisis just not right. The jury hung
and then they didn't reprosecute him.So you know, sometimes being honest and
being truthful makes a big, bigdifference, even if you're not a perfect
(50:35):
person. But so many people whodo criminal defense thinking they've got a conviction
that's going to do them as awitness, not necessarily at all. I
don't think so great points. Greatpoints. Well, all right, we
don't want to take up too muchof your time, Tom, because I
know you've got a lot going on. But I cannot thank you more for
(50:57):
joining us. And uh, Imean, nobody knows media and high profile
trials like you do, so itwas really an important topic for us to
talk to you about. I appreciateyou joining us, and I hope that
you will come back if you haveany interesting cases. You're always welcome here
(51:17):
to make a case. And Tom, I know you've been to the South.
You like the South, You've beento Hilton Head. I will invite
you to my island, my islandhouse on De Fusky, right across from
Hilton Head, bring your young familyanytime. You won't about me, I
would love to have have you.What about me and Matt Tom, I
(51:39):
would love to have you and yourfamily visit me on anything you can believe
the ship by the way. Bythe way, Tom said down south Mississippi
and Alabama, so where you're fromdoesn't really cut it. Yeah. Everyone,
I had a wonderful time and youreally appreciate the time. It's a
(52:02):
great show. Thank you, thanks, thank you so much. And let
me just jump in real quick beforewe wrap up to say, if you
haven't followed us already on your preferredpodcast platform, please do so. We're
called The Presumption. We are everywhereincluding on YouTube, YouTube dot com slash
at the Presumption. And speaking ofYouTube, we actually have a little treat
(52:22):
mentioned Michael Jackson a little bit earlierin this episode, and it turns out
Sarah was tasked with a retirement giftthat she sent to me and I just
want to play for you guys againstfor the two people only. It was
it was a judge in Florida.I was a really good friend of mine
who was retiring and they wrote tome and they said, since you can't
(52:43):
make it to the gala, canyou do a retirement speech and video it?
And Senato us and me because I'mso extra and eccentric. I did
a choreographed video to Michael Jackson's SmoothCriminal, which is like my favorite song,
but Matt, don't embarrass me.We'll see, we'll see in the
final edit. Again, thank youguys all so much, very much.
(53:06):
And then at this point Sarah weleft
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