November 5, 2019 • 60 mins
Thomas Mesereau is regarded by some as an unconventional, unpredictable trial attorney. His accomplishments in the courtroom as a high stakes trial lawyer are extraordinary and his experiences are unprecedented, having been lead counsel on the most high-profile trial in American history. However, it’s Tom's authenticity that has helped him to be one of the most effective trial lawyers in modern times. In this first part of our two-part conversation, we also talk about managing the pressures of public opinion and we learn more about Tom's personal perspective than he has shared in any of his past interviews - in this fascinating and insightful first of two parts of our conversation.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Dr. Shepp (00:09):
Thanks for tuning in to manage the moment
conversations in performancepsychology.
I'm Dr.Sari Shepphird.
Tom (00:17):
I learned that performance involves far more than
artificial contrived, uh, fakeways of behaving.
That true performance involveswho you are as a person, your
emotions, your depression, youranger, your in your anxiety,
your great happiness, uh, your,your gratitude.
(00:37):
I mean, whatever the panoply ofemotions inside you are.
Real performance is you and Ireally concluded authenticity to
me being who you are no more, noless is a major component of
performance.
Dr. Shepp (00:56):
Thomas Mesereau is regarded by some as an
unconventional, unpredictabletrial attorney.
His accomplishments in thecourtroom as a high stakes trial
lawyer are extraordinary and hisexperiences are unprecedented,
having been lead counsel on themost high profile trial in
American history.
There are some things thoughthat you might not know about
Tom- Like he took a sitcomacting class for example, or
(01:19):
that he likes to defy logic byincorporating his sense of self
into his work in the courtroomthrough emotion, humor and
compassion.
Tom knows who he is and it's hisauthenticity that has helped him
to be one of the most effectivetrial lawyers, in modern times.
But is performer, the word thatsomeone would use to describe a
courtroom attorney.?That'ssomething that he and I
(01:40):
discussed when we sat downtogether for this conversation
in his office in Los Angeles.
And this first part of ourtwo-part conversation, we also
talk about managing thepressures of public opinion and
we will hear more of Tom'spersonal perspective than he has
shared in past interviews inthis fascinating and insightful
first of two parts of ourconversation.
Here's Tom.
Good morning.
(02:02):
Tom.
Thank you so much for beinghere.
I'm very excited to speak withyou.
Tom (02:05):
Thank you for having me.
Dr. Shepp (02:06):
Absolutely.
It's my pleasure.
Um, there's so many things thatI'd like to be able to talk with
you about today because I thinkbeing a courtroom attorney, most
of our listeners will reallyfind it fascinating how much of
an overlap there is between, uh,performance psychology, sports
psychology principles andmindset that one brings to
their, to their skill when theyexecuted in a moment of time.
(02:28):
And the work that you do as a,as a trial attorney.
I know from your background thatI'm guessing any way that you
probably have a, some sort ofsense of, of sports psychology
given that your father was a, uh, a football coach alongside
Vince Lombardi.
Tom (02:44):
He was at West point.
My father grew up inBergenfield, New Jersey where
Vince Lombardi was raised.
My father attended and playedfootball in high school at st
Cecilia's high school where hewas an all state football player
and then went to West point andhe was an all American, a West
point and then played serviceball after, uh, after world war
(03:05):
II ended.
Um, and he was an assistantcoach at army under Earl Blake,
who was a very famous coach in,in the history of college
football.
And at one point Blake waslooking for an assistant coach
and my father suggested he goback to his high school, st
Cecelia's in Englewood, NewJersey, where the head coach was
Vince Lombardi and talk to VinceLombardi about his first college
(03:27):
job.
So as it worked out, they bothwere assistant coaches at West
point together in the lateforties.
Um, quite an interesting story.
Dr. Shepp (03:35):
Absolutely.
Did your father talk about, uh,I don't know what kind of dinner
table conversations you mighthave had.
Did he talk about the psychologyof performance and in sport?
Tom (03:45):
I wouldn't say did that.
Uh, he wasn't much of a braggartabout his accomplishments.
Um, I can't say we ever had adiscussion like that.
Uh, but I did have my, uh,grandfather who was quite well
known in New York city forowning a very well known
restaurant.
And he had been an Italianimmigrant who was raised in
hell's kitchen, which was a slumof New York at the time.
(04:05):
Now it's all gentrified, but hismother, uh, who immigrated as
well from Northern Italy,started a smaller restaurant and
expanded it a number of timesand it became quite well known.
And my father was a re, mygrandfather was a real
performer.
If you asked me, he was a hugerestaurant.
He could make every patron atevery table feel like they were
the focus of his attention.
(04:27):
And it was kind of a naturalthing.
He didn't go through anytraining or instruction on this,
but he was quite a showman, atremendous chef, and tremendous
in the restaurant business.
So I would say if you talkedabout who performed in my
upbringing, I would say he wasprobably more of a quote
performer and of code than myfather was.
Dr. Shepp (04:46):
Did you take anything away from watching your
grandfather in that kind of asetting?
Tom (04:50):
Well, he was a very, a very gifted, very talented,
ferociously hardworking person,a real immigrant success story.
Uh, and he always emphasize hardwork and he emphasized a
promotion and he emphasized hewas, there were scarcely a day,
it wasn't in the newspapers inNew York at his restaurant.
He gave free meals tojournalists and, and uh, was
(05:11):
quite a character, I have tosay.
Dr. Shepp (05:13):
And this was [inaudible], is that correct?
Absolutely.
Yes.
So very, very successful,well-known restaurant.
Tom (05:18):
Yes.
Unfortunately, there was somefamily splits early in life and
it was sold in the late fifties.
And he, but he was a real NewYork character, real New York
showman and uh, and his ownnatural way.
You look at the way he dressed,uh, the, for the ties he wore
and, and just the personalapproach he gave to every, every
customer at every table, uh,felt Geno Leoni was really
(05:40):
focusing on them and he justcould do something like that.
He brought politicians, hebrought famous performers,
actors.
It was at 48th and Broadway inNew York, which is a theater
district.
And so a lot of, uh, that worlddid affect me as a boy.
Dr. Shepp (05:54):
It's interesting that you talk about the, to speak to
somebody as though they're theonly person in the room to
really give that attention.
And, and if I could just drawthe parallel to the current work
that you do now, because Iimagine that's a lot of what you
need to do when you speak tothose, those 12 people on the
jury, um, is, is to make themfeel as though you're speaking
(06:14):
directly to them and, andconnecting directly to them.
Tom (06:17):
Well, I, I don't want to overdo the performance aspect of
this.
And by the way, the wordperformance, uh, is somewhat of
a loaded word to me.
And I'll explain to you why.
Um, in my early thirties, I wentthrough a very difficult
personal period of my life.
I went through a divorce.
I had financial problems.
(06:39):
My grandfather was dying.
I was responsible for him.
My father was, was dying.
I, you know, was very involvedin that.
I switched jobs and I used to, Itook my father to a cancer
clinic in Mexico for alternativemethods.
I used to replace my sister andweekends at the clinic.
And it was a tough time in mylife.
It was the first time, so manyproblems had converged at once.
(07:00):
You know, we all always haveproblems, whether we're young,
old, whatever.
But this was a real crisisperiod for me.
And I came out of it.
Uh, when the, when the smokecleared, I was somewhat of a
withdrawn individual.
Uh, I have, uh, I have a veryintroverted side anyway.
I have a side that has alwaysliked to just be alone and
(07:21):
observe people anyway.
But at this period in my life, Iknew that something needed to
change.
Uh, I had lived a life thatlooked good on paper and in my
opinion was not, and I waswilling to face that.
So among other things, I took afew acting classes, I took a
method acting class and I took asit situation, comedy class.
(07:43):
I taught the sit-com classbecause I felt like I hadn't
laughed for a long time.
Uh, I felt very withdrawn.
I took the method acting classbecause I was at a bookstore and
I'm a prolific reader and I loveyou as a bookstore is and lament
that they're going out ofbusiness so much today.
But I was at a used bookstorebuying a bunch of books and I
saw these tapes, the craft ofacting by a fellow named Eric
(08:07):
Morris for five bucks.
And I bought them, listen tothem.
I called him up and said, I'mnot an actor, I'm a lawyer.
Um, but your class interests me.
I listened to some audio tapesand I said, would you be willing
to let a lawyer show up?
They said, sure.
And I've actually counseledlawyers before, so I'll never
forget a, and this was in the80s, the mid eighties.
(08:29):
I went to one of his classeswhere he had actors getting up
on stage and doing variousexercises that he required them
to do.
And I was horrified at what Iwas seeing.
Um, and I said to him that thislooked almost too difficult for
me cause he had actors goinginto anger at parents said anger
(08:50):
at various issues andconversely, great joy in their
life.
You know, you had them lookingat empty chairs where they would
match in apparent was there, andthey would tell them what they
had done to hurt the actor orconversely, all the wonderful
love and things that they haddone to help the actor.
And they would ex, he wouldexplore feelings.
And I was not someone who feltthat comfortable exploring
(09:11):
feelings like that.
So I remember he asked me to getup and just say who I was, uh,
my name.
Uh, how I grew up, uh, myeducation, what I do for a
living.
And he said, stop.
At one point I've already gothim.
He said, you're someone whobasically uses your intellect
and your ability to articulate,to hide what's inside of you
(09:34):
emotionally.
And he said, you have a lot ofways of getting away from being
hurt emotionally.
And he said, I'm, if you do thisclass and I'm urging you to do
it, he said, I'm going to haveyou doing exercises that are
going to be very difficult foryou.
They're going to involveantilogic, anti leadership, anti
control.
And I ended up attending thisclass once a week for a number
(09:58):
of years.
Um, not so much to be, uh, alawyer, but to be a person.
And I learned that performanceinvolves far more than
artificial, contrived, uh, fakeways of behaving.
That true performance involveswho you are as a person, your
emotions, your depression, youranger, your, your anxiety, your
(10:22):
great happiness.
Uh, your, your, uh, gratitude.
I mean, whatever the panoply ofemotions inside you are real
performance is you.
And he said to me in that firstevening, he said, the whole
purpose of this class is to knowwho you are and be comfortable
with it.
No more, no less.
(10:42):
And he said, the greatperformers really are
themselves.
Whether it's in a part, whetherit's, you know, on stage,
whatever it may be, they reallyare themselves.
And I did this class, I read alot of his books and of course I
was a prolific reader on triallawyering.
And I really concluded, based onmy observations, I used to run
(11:03):
down to watch famous lawyers trycases wherever I was.
I would read their books orbooks about them.
And I came to the conclusionthat the most effective trial
lawyers were really themselves.
And at some of the mosteffective trial lawyers were not
terribly dramatic or theatrical.
Uh, and they were somewhatboring, maybe dull, maybe
(11:23):
methodical, but they were reallywho they, who they are.
And some of the least effectivetrial lawyers were very
theatrical, very, uh, very loud,very colorful, and they were the
least effective at getting theirmessage across.
So authenticity to me being whoyou are no more, no less is a
(11:44):
major component of performanceand contriving a role and
putting on airs and putting onfake anger or fake laughter is
not what performance really ismeant to be at all.
So I wanted to, let's to laythat out for you so you
understand where I'm comingfrom.
I fear that a lot of thelisteners might think the word
(12:05):
performance can connotessomething very contrived,
something very fake, somethingvery artificial.
It can if you don't know whatyou're doing.
But I think performance whendone well and done properly is a
lot deeper than that.
Speaker 4 (12:25):
[inaudible]
Dr. Shepp (12:25):
You've articulated very well some of the things
that I often talk about in mywork with clients, because
performers, regardless of theircraft, whether they be actors,
whether they be businessleaders, whether they be
attorneys, whether they beathletes, often come to their
work with a sense of needing toeither prove something or or
pretend about something and it'sactually counterproductive to
(12:47):
their performance.
So to be able to eliminate that,that artificial nature and find
a way to connect to one's one'sown self, one's own values,
one's own constructs, one's ownability and have that be more
authentic is invariably going toenhance someone's performance.
I'm glad you clarified the wordbecause I do think that it's
(13:07):
important to do that because inmy line of work and those who
are listening who might comefrom a background of performance
psychology, we understand it tomean being able to, to work at
one's best and optimize thetalents and the skills that they
bring to the craft that they,that they engage in.
But listeners outside ofperformance psychology might
associate that with a differentconnotations.
So I appreciate that you didthat.
Tom (13:28):
Well, I've never studied performance psychology, so I
know nothing about it.
Uh, I know what I've done, uh,therapeutically and to improve
myself and also in the, in thecourt room.
So that's kinda where I come.
So some of your, some of whatyou talk about may or may not be
familiar to me given the kind ofwork you do and the kind of work
I do, but, but certainly happyto talk about it.
Dr. Shepp (13:51):
We might use different terminology, but I
would imagine that there's a lotof overlap because you, you
obviously are aware of thedynamic that's happening in a
courtroom.
I mean, you, you must follow,um, body language of jurors and,
and um, and, and what their eyecontact might be and what some
of the, the looks on their facesmight be.
And, and you're not a mindreader, neither am I.
(14:13):
um, people might assume thatsometimes about you as an
attorney, those on the outsidejust as they do in, in my
profession, but you're obviouslynot a mind reader.
Get your, you must be a keenobserver.
Tom (14:22):
Well, I'd like to think I am, but you only have so much to
work with.
For example, a jury selectiongoes fairly quickly in a
courtroom much too quickly toreally understand who the
potential jurors are.
Uh, when you're given anopportunity to question them,
which you're not always given,uh, particularly in federal
court where a lot of judges wantto kind of monopolize the
(14:42):
questioning and get it done.
Um, you know, first of all, ifyou're allowed to question, it's
not that long.
Second of all, people arecomplicated that sometimes they
don't know who they arethemselves, let alone you
figuring out who they are in 20minutes.
Um, so it may not be as, uh,insightful a process as you
(15:04):
would want it to be or hope itwould be, but nevertheless,
you've got to deal with thecards you're dealt.
So yes, you try and figure outin a generalized sense what kind
of juror might work best for youin a particular case.
Um, uh, but that's generalities.
Who are these people really noteasy to say.
(15:25):
Sometimes you get aninstinctive, intuitive feel for
someone.
That's powerful.
Cause I like to think of myselfas an intuitive, instinctive
person, uh, as well as dealingwith legal issues and factual
issues.
Uh, and keep in mind that incollege, in law school, nobody
teaches you EEQ they basicallyteach your IQ.
You know, people come out of lawschool I think less comfortable
(15:48):
and less insightful about humanbeings than they were when they
went in.
That's interesting because youwill look at students who come
out of college, um, where theyspend four years interacting
with a wide cross section ofpeople, uh, developing a,
hopefully a sense of who theyare, taking a wide variety of
subjects.
Um, they show up optimistic and,and uh, with a glow in their eye
(16:12):
and an excitement to law school.
And three years later afterhaving argument drummed into
them and Socratic method drummedinto them and facts drummed into
them, they seem less happy, lesshealthy and no one has, nobody
has taught them how to evaluatehuman beings, how to judge human
beings or how to relate to humanbeings.
[inaudible] I think one of thefallacies of legal education is
(16:34):
that people aren't taught enoughhow to behave in the courtroom,
uh, when they're given theopportunity to represent, you
know, clients.
By the same token, you look atdoctors, you know, they have to,
they get out of medical schooland they have to go through a
residency period, uh, wherethey're dealing with
practicality.
But people get out of law schoolpassed the bar, which is an
(16:55):
academic exercise and suddenlythey're have the right to have
lies in their hands.
And I don't think it'snecessarily well done the way we
do it.
And that's been, this has been apoint of criticism for by trial
lawyers for many years about ourlegal education.
Yes, you can take trial practicein law school and most people
do.
Yes, you take a course inevidence, but do you really know
(17:16):
what the court rooms like?
They really don't.
Um, and there's no extra yeartreating trial lawyers as a
specialty that deals withemotions, deals with human
interaction deals with judgingand evaluating people,
communicating with people.
You don't have much training inthat.
Dr. Shepp (17:35):
And yet that's so important in the work that you
do because you must have, I, Iremember you saying in an
interview that you, you try tospend some portion of your day
to find out at least one thingabout client that you're working
Tom (17:50):
with that will help them to be humanized.
Well, I spent a lot of timeearly in my career defending
gang members in Los Angeles andthe deep South.
And you know, in the earlynineties, uh, LA was a
slaughterhouse, the gangviolence, Crip shooting, bloods,
blood shooting Crips, uh, gangsfrom East LA shooting each
(18:13):
other.
I mean, this was going on everynight in the late nineties
because in the 80s, the adventof crack cocaine basically
decentralize and disorganizedthe drug business in Los
Angeles.
Whereas it used to have somepowerful people who controlled
it alone.
Now you had, you know, smalltime crack dealers trying to
(18:34):
protect their, their turf, theirblock and make money.
And it increased the amount ofviolence tremendously.
Uh, decentralizing the, the, theillegal drug business ended up
with a, uh, a huge violentaftermath which was going on on
a daily basis.
And young men were just inshooting each other every
(18:55):
evening in South LA and East LAwas horrific.
And when society is faced with athreat like this, uh, whether
it's an external war, whetherit's an internal war, which it
was, society tends to find waysto deal with it.
And the first thing is that goour civil liberties when our
country, our society is at war,civil liberties are the first
(19:18):
things that people are willingto do away with to deal with
this war.
And what I noticed was that theLA district attorney's office,
which is the largest districtattorney's office in the
country, over a thousanddistrict attorneys larger than
any other city, they had ahardcore gang unit that was
designed to prosecute gangmembers.
And they were prosecuting gangmurders all the time.
(19:39):
And what I learned was thatevery other unit, whether it was
domestic violence, whether itwas special crimes, whether it
was insurance fraud, every otherunit would not bring a case on
the basis of a single eyewitness identification.
Unless there was evidence tocorroborate that, I wouldn't say
identification.
The only unit in the DA's officethat was bringing criminal
(20:02):
charges based on a soleeyewitness ID, even if there was
nothing to corroborate, it wasthe hardcore gang unit because
there was such a fear of gangmembers.
There was such a fear of thisviolence escalating out of
control that they wanted to justget these people off the street
and lock them up.
And I was bothered by that.
I understood the impetus behindit, but I was bothered by it.
(20:23):
So I said to myself, you know,these young men from South LA,
they're being railroaded rightthrough the system.
If they have a tattoo or if theyhave a moniker, you know,
jurors, some other parts of townare willing to just assume that
they're, they're violent,they're guilty, they're
criminals.
They may not be, they may bekids that walked out the door
and on the way to school, had todeal with gang members, had to
(20:44):
play Kate them, had to playalong with them without really
doing anything wrong.
But the system was just washingthese people away.
And I saw young prosecutors withelite educations like myself, uh
, who didn't grow up in theseneighborhoods, like I didn't,
uh, just assuming they're allgang bangers and, and, and
de-valuing them by definitionfrom where they came from, how
(21:07):
they dressed, their race, theirincome level, whatever.
I didn't like it.
So I failed.
You've got to find a way todefend your clients effectively.
And I decided the first way wasto humanize them in ways they
were being, they were not beinghumanized effectively in court.
So I would hang out with thefamily.
I would go to the neighborhoodvarious times a day.
(21:28):
I would try and find out how myclient lived and, and what
influenced, uh, for good or fornot good, uh, in their lives.
I, I'd ask them what good youdid.
Do you go to church?
Do you, do you try to helppeople?
Who's the last person you triedto?
You tried to help in some wayand why didn't you do that?
And try and find the human sidethat maybe no one had, had
(21:49):
examined before and then try andbring that into the court room.
And I discovered that I was muchmore effective at defending
these cases than most lawyers Iknew.
Um, again, we don't get out alot.
We don't learn in law school howto humanize a client.
We don't learn how to humanizeourselves, let alone the client.
So I think that's my response towhat you're talking about.
(22:10):
Uh, I would put on characterdefenses when nobody would do
it.
Um, there was a thought that ifyou put on a character fancy,
you opened the door to theprosecutor to bring an evidence
of bad character.
But my thought was they alreadyhave destroyed the, the
reputation of the client byvirtue of their charges in their
case.
Um, show them who the client is.
(22:31):
And I would put clients on thestand more than others and ask
them about their upbringing,asked them about their
development, uh, asked themabout obstacles in their life,
uh, and then put on characterwitnesses if I had them to
basically say what theirreputation was.
And a lot of them were justfighting a survival battle to
deal with the gangs in theirneighborhood without being in
gangs at all.
(22:51):
Some of them were trying toimpress the girls by, you know,
wearing tattoos and doingthings.
And, and no more than that.
Some of them were reallyhardcore gang members and some
of them were not.
And to bring in the complexityof life in neighborhoods where
the jurors from other parts oftown had never been a, was part
was a challenge.
But something I tried to do in,in my defense of, uh, of these
(23:13):
cases
Dr. Shepp (23:14):
and this was more than a legal strategy to me.
It sounds like you have a set,you know, a high E Q emotional
intelligence, um, quotient thatwould lead you to understand the
importance of people being ableto see another side of the
defendant or, or of your client.
And is, was part of that, um,understanding of the importance
(23:36):
of that.
Is that something that camethrough your work in method
acting and connecting to yourown sense of, of emotionality?
Tom (23:42):
Well, I think we're all a sum of everything we do.
Life, you know, good or bad.
Uh, our victories, our defeats,our great moments are at sad
moments, whatever they may be.
They all make up who we are aspeople.
So looking at it that way, Ithink everything I did
contributed to, I think I hadcompassionate parents who were
very compassionate, kind people.
(24:04):
Um, did not like racism, did notlike de-valuing people based on
race or religion, that kind ofthing.
Um, my upbringing was primarilyminorities on the East coast,
Irish and Italian.
I have two Irish grandmothersand Italian grandfather and uh,
my other grandfather was Frenchand Irish.
Um, the Italian influence wasmore predominant growing up.
(24:25):
Probably than the Irishinfluence, but I have more Irish
blood in me than anything else.
But nevertheless, I grew up withan interest in people.
The restaurant business, whichmy grandfather and father were,
were in, did expose you to a lotof types of people.
Um, so I think I'm someone whogrew up with maybe a little more
empathy than most people.
Uh, I think the, trying tofigure out what a strong man was
(24:49):
growing up was difficult becausemy concept of a strong man was
not someone who was particularlysympathetic or sensitive or
caring.
And I had to deal with thatissue as part of my upbringing.
I think a lot of men in thosedays had to deal with it and
probably still do.
What's a strong tough man?
What's a, what's a real, uh, areal masculine person like, and
(25:10):
what's, what's, what's he notlike?
And that kind of thing.
So, um, I think, well, what,what the, what the method acting
did was just helped meunderstand myself and not be
afraid of my feelings.
You know, for example, Iremember there was an exercise
where we had to get intodepression when we'd been
depressed.
We had to lie on the floor andclose our eyes.
(25:31):
And think of the last time wewere deeply depressed and dwell
on it.
And this was so hard for mebecause to me, when you've been
depressed, you want to get awayfrom it.
Do you want to bury it?
You know, run as far aspossible.
What I discovered was thatactors saw access to when they
were depressed as a great virtuebecause if they were required to
(25:51):
play a part of someone who isgoing through depression or is
depressed, they want to borrowon their own experiences.
I didn't know any of this untilI got in this class and found it
very hard to deal with, butultimately very helpful to me
understanding my strengths andweaknesses and what I ran away
from in my life and what I wouldtry to Barry cause I wasn't
raised to, to access thesefeelings and, and confront them
(26:15):
and think that was okay.
Um, so listen, as far as jurorsgo, we live in a time where
people are much moresophisticated than maybe 30
years ago.
And they've watched TV, they sawthe OJ Simpson case, which was a
watershed case in Americanhistory, it seems like yesterday
(26:37):
to me, but it's 25 years ago.
And people watch what lawyers doand witnesses do, prosecutors
do.
And there was all sorts ofcommentary, some good and some
not good surrounding that, thattrial, which took over America
for about nine months.
And I think as a result of that,uh, potential jurors are much
more versed in what happens in acourt room for better or for
(27:01):
worse.
I mean, it's, society seems tobe fixated on true crime
stories.
Now you've got ID channel,you've got other channels like
oxygen and a and a trying todevelop their true crime, you
know, chapters.
Um, and it just seems likepeople can't get enough of date
line and 48 hours and 2020.
And so you have jurorsinterviewed on these shows, you
(27:23):
have snapshots of the courtroomon these shows.
And I think, you know, thatthere were probably good and bad
things that are coming out ofthis, but nevertheless, I don't
think people are as naive whenthey walk into a courtroom.
Uh, I think they haveexpectations, which may be good
or not good.
But I think the worst thing alawyer can do is be a phony.
You know, I think if you havefake laughter and fake reactions
(27:46):
and fake gestures, and I thinkjurors are going to see that
pretty quickly.
Uh, court rooms are verycounterintuitive to what a lot
of people expect.
Uh, there's something about acourtroom that's different and
people don't always expect it tobe different.
Um, uh, sometimes people who areeffective salespeople outside
(28:09):
the courtroom or not in acourtroom, I've always thought
politicians who are great atselling themselves in a certain
context outside of courtcourtroom tend not to be the
best witnesses.
You know, I don't know how toexplain it except that a lot of
what happens is counterintuitiveand jurors take their job very
seriously.
They know that what they'rebeing asked to do is going to
(28:31):
affect someone's life.
In one way or another.
And I think, you know, althoughthey're human and they're not
perfect, I think they try torise to the occasion as best
they can to do what's right.
Unfortunately, they're onlyhuman.
And the trial process is not aperfect process for bringing the
truth in.
You know, we're, we're reallyreconstructing what happened
(28:52):
somewhere else, uh, according tocertain norms and rules and
procedures.
And that can never be perfectand there are always going to be
miscarriages of justice.
We see it all the time.
I mean, the last I checked, over300 people had been released
from lengthy prison sentences ordeath sentences or life
sentences because of DNA.
I mean, those are 300 peoplewhere there was DNA to check.
(29:15):
And as a psychologist, I'm sureyou know, the problems with eye
witness identification, they'rejust, you know, Legion Juris can
be very effective when someonesays, I'll never forget that
face.
And they pointed the person andthey may be completely wrong.
And they're in many instanceswhere they have been proven
completely wrong.
They don't, they pick the wrongperson.
I mean, I'll never forget, uh,when I first agreed to do a
(29:37):
death penalty case in the stateof Alabama, I agreed to do it
free.
This was 20 years ago.
It was a homeless black mancharged with killing of
beautiful white girl and atrendy part of Birmingham,
Alabama.
And there was tremendous emotionand passion behind this case.
And two white lawyers wereappointed to defend the person I
agree to defend with them.
(29:58):
[inaudible] they were gettingracist threats on their
answering machines.
Uh, the N word was being used,et cetera.
So I agreed to help them.
And I discovered that a, Iwould've sided eye witness
identification expert had nevertestified in a criminal case in
the state of Alabama.
I'd been using such experts inLos Angeles.
(30:18):
So I found a psychologist fromthe university of Alabama at
Birmingham who taught a chorusthat dealt with partially dealt
with eyewitness identificationand the problems.
And you know, it was assumedthat if somebody's in the heat
of, of, of violence or in theheat of a crime looks in
someone's face, they'll rememberit.
(30:42):
Um, it can be exactly theopposite.
But in my trial preparation, Icalled a white woman in North
Carolina who had been raped by ablack man and who had testified
at the defendant's trial.
She said, you know, this man wason top of me.
I could not overpower him.
He was too, too strong for me.
And I looked at his eyes and Ilooked at his nose and I looked
(31:04):
at his mouth and his ears andhis cheeks and his teeth and his
hair.
And I said, I'm going toremember that face.
And she pointed at the defendantand said, that's the man that
raped me.
He was convicted, he went toprison.
And there was a reversal on atechnicality.
They had a second trial.
She said the same thing.
And then one day she got a callfrom the investigator who said,
(31:26):
I've got good news and bad newsfor you.
I'll start with a bad news.
That's not the man who rapedyou.
And the good news is we foundthe man who raped you.
He's in another prison.
We did a DNA match and theyreleased the black man.
She had identified and she wasjust horrified by what she had
done.
Uh, she said he was veryforgiving, said, you know, you
(31:48):
weren't trying to lie oranything.
I know you thought what you weredoing was right.
But she just, when I spoke toher 20 years ago, she was
speaking around the countryabout the problems of, of
particularly cross racial eyewitness identification and the,
the studies consistently showthat the races have trouble
identifying other races.
(32:09):
And when you mix in violence andshock and this kind of thing,
you make it even more difficult.
But Asians identifyingHispanics, Hispanics,
identifying whites, whites,identifying blacks, I mean
everybody has much moredifficulty identifying people in
another race, particularly in asetting like this where there
(32:30):
are shots and there's focus onthe gun and, and there's poor
lighting and, and people haveall sorts of emotional deficits.
They're going through this.
So, uh, that had to be pointedout.
Um, and we did point out in thetrial and it was an acquittal
which generated a lot of angerin parts of town.
(32:50):
Um, again, my co-counsel gotdeath threats on his machine and
family members are pointing atme in the court room.
And, and I know what we did wasright.
I know this fellow didn't dothis.
Um, but nevertheless, uh, thecourt room is not perfect.
It's the best legal system inthe world, but it's not a
perfect system.
And we need criminal offense.
Lawyers who are courageous andprepared and dedicated to fight
(33:14):
even when public opinion isagainst them.
And even when the media isconditioned, you know, potential
jurors for a conviction, uh, wehave to make the system work,
um, more than anybody, uh, toprotect our clients and protect
the system.
So that's maybe a roundaboutanswer to your question, but,
uh,
Dr. Shepp (33:32):
now it's fascinating to me because you're talking so
much about the complexity ofwhat you need to manage in the
courtroom, but also in yourprofession.
Because here you've talked aboutthe vulnerability that you
gained, um, and, and the way itenhanced your own life
experience to connect to your,to your emotions.
But at the same time, you have adifferent side of things where
(33:53):
just the, the work that you do,uh, might make you vulnerable
and other ways vulnerable topeople's perceptions, to their
opinions, to their judgements ofyou.
I mean, receiving death threatsand, and, and looks from people
in the courtroom.
And I would imagine it looksfrom people that you still get
for defending some of the peoplethat you've defended.
And so that, but that iscontrary to the vulnerability
(34:15):
that you spoke about.
Tom (34:17):
We're all complicated.
I guess I am too.
But you know, I, I think the,the thrust of your interview is
performance in the court roomand performance means a lot of
things.
I mean, it means trying tofigure out what the best defense
for your client may be givenwhere you're trying the case
given you know, what theevidence is given the times you
(34:37):
live in.
Um, performance can mean pickinga jury.
Um, that's, I guess you'd callthat performing for your client.
Again, it's not some artificialtheatrical thing.
Um, but I think insight intohuman nature, which again, law
school is just do not teach andmost lawyers and law firms spend
(34:57):
no time on can be veryimportant, particularly in
criminal defense.
And I'm talking about all kindsof cases cause I try white
collar cases in federal court.
I try not unlike holler casesand in state court and
everything in between.
Um, but let me, let me mentionjury selection in the Michael
Jackson case cause there's anaspect to it that uh, you might
(35:17):
be interested in.
And that's the issue of race inthe court room.
Um, when I took over the MichaelJackson case, I immediately
change a lot of things that weregoing on by prior defense
counsel that I didn't approve ofand didn't like and didn't think
would be terribly effective forMichael.
First of all, I learnedsomething about Michael.
I talked with him extensivelyand I did research on who he was
(35:40):
as a person.
I'd always liked his music, butI never was a real student of
his music.
And it became pretty clear thathe was a person who brought
races together, didn't dividethem.
So when I got into the, youknow, there was the song he sang
, it doesn't matter if you'reblack or white.
He had adopted children of otherraces.
He plan to do more of that.
(36:00):
Uh, he was a person who wantedto bring all races together.
But when I was observing how thedefense was conducting
themselves in the MichaelJackson case, before I got in, I
was seeing just the opposite.
Michael would show up with thenation of Islam surrounding him,
providing security.
And I understood why he wantedit.
He was felt terribly threatened.
(36:21):
Uh, his father, his siblingswere going on TV, calling this
illegal lynching and reallymaking race a predominant issue.
And I very quickly said, I don'twant the nation of Islam to be
prominent around Michael.
I don't want his, his siblingsor his father going on TV or
radio, calling it a racial andperform of injustice.
(36:42):
It may be, but I don't want themsaying that because this is
going to be tried in apredominantly white community.
A worry, we may not get oneblack person on the jury.
And Andy, we didn't have a blackperson on the jury.
We had one black alternate whonever made it to the main jury.
But I said, look, this is your,where you chose to live.
You, you hire people of allraces, people of all races that
(37:04):
are in your immediate family.
I mean, I said, look, we have toshow that you bring people
together that will appeal towhite people.
Particularly racial divisionwill not appeal to white people
at all walking into thatcourtroom.
Um, you know, because whitepeople, particularly after the,
you know, Simpson case, whichwas very divisive, uh, where
there was such a difference ofopinion given people's race, uh,
(37:27):
as to whether the verdict wasappropriate or not.
And so I changed that whole partof it.
Now when we were picking a jury,uh, you can imagine the panel
showed up.
There were media everywhereoutside the courthouse.
There was an effort by the courtpersonnel to hide people from
the media as much as they could.
(37:48):
But this was the most watchedcase in American history.
There were over 2200 accreditedmedia in Santa Maria, which is
Northern Santa Barbara Countywatching the trial that's more
than OJ Simpson and ScottPeterson combined.
So there was all sorts ofconcern everywhere as to how
media could affect what goes onin the courtroom.
But nevertheless, the jury comesin, we've got three white male
(38:12):
prosecutors and their white malejury consultant.
Okay.
Uh, the defense is white, acouple of white males and an
Asian American female.
Okay.
But I had studied theprosecutors how they were
behaving from the moment I metthem, I felt they were just,
hubris was everywhere.
They just felt they could neverlose this case.
(38:34):
They were to be movie starsaround the world that they won.
And they seem to be very full ofthemselves.
And I know white men and theytend to be very deficient when
it comes to understanding of theblack community, black history,
black neighborhoods, blackpeople, et cetera.
So you don't have much of ablack community in Santa Barbara
(38:56):
County.
You very small one.
So I observed these prosecutors,how they behave and how they
reacted.
I would ask them questions whenwe had moments, you know,
talking lawyer to lawyer.
And I said to myself, they thinkthere's no way the defense can
win.
And the defense, all blacks aregoing to be behind Michael
(39:18):
Jackson and[inaudible] is goingto want a black on the jury to
hang the jury.
That's a very simplistic way oflooking at things.
But that's what I felt they weredoing.
And that's what I used in myjury selection.
And I'll tell you how I used it.
Um, you have a, typically in atrial, you have a panel of
(39:39):
initial jurors and each side hasa certain number of challenges.
They can exercise, uh, to removepeople without giving a reason.
And these are called peremptorychallenges.
You don't have to give a reason,but you can't remove someone if
you violate the constitution.
In other words, you can't removesomeone's solely on race or
(39:59):
solely on gender.
So miraculously on the firstpanel, a black woman appeared
and they immediately removedher.
So I asked to go to sidebar andraised a constitutional
objection that they were doingthis Jeff's on race and my
motion was denied.
To my astonishment, anotherblack woman showed up on a later
(40:21):
panel and they removed herimmediately.
So I went to sidebar again, madea constitutional objection and
you know that they're notallowed to do this.
And it was denied.
They came up with reasons thatthey claim were race neutral for
removing these two black women.
So I think I gave them theimpression that their suspicions
(40:43):
of me were confirmed given myobjections and how I behaved.
So we had a jury, uh, that Iliked and I had a number of
challenges left and theyaccepted the panel.
I think leaving a few jurors onthey didn't particularly care
for.
But here's what I thought theywere doing.
(41:04):
There was a young black man inthe alternate ranks who if I
kept raising them, makingobjections and moving jurors
out, a, I should say objections.
If I kept challenging jurors andmoving them out, there was
mathematically I could end upwith that young black man on the
jury.
And so they kept accepting thepanel and accepting the panel,
(41:26):
hoping I would use up mychallenges and my feeling was
he'll get beat, they think he'llget on the jury then then
they'll remove and a bunch ofothers they don't like.
And at one point they acceptedthat panel.
And with more than half mychallenges remaining, I accepted
the panel and I saw their jawsdrop.
I saw their jaws completelydropped because I don't think
this was the panel they reallywanted.
(41:47):
They were playing their racestrategy and I called their
bluff and got them.
The jury didn't have one blackperson on it and Michael Jackson
was acquitted of every singlecount.
Um, so race comes into thecourtroom in various different
ways.
Um, this is one way it workedout.
Um, but I don't think very manypeople knew about at the time or
(42:09):
figure it out.
And, and I, by the way, had toconvince my client and his
family that I didn't neednecessarily need an African
American juror cause they wereconcerned about that as you
would expect.
You know, they knew the historyof black celebrities being
unfairly prosecuted andconvicted in America.
They thought this was horriblein justice.
They thought black jurors wouldhave more of an understanding of
(42:29):
that.
You can't blame them forthinking that.
Um, but I told them, I said,look, the way I'm going to
present this defense, don'tworry about that.
It's not gonna, it's not gonnamatter.
And they think I'm just totallydependent on their concept of
what a black juror will do andI'm going to use that against
them.
And that's what I did.
Dr. Shepp (42:48):
It's very astute.
It speaks to, again, to yourawareness of the psychology of
human beings and how thatimpacts your work.
And I read and understand thatthere were a number of things
that you needed to overcomealong that line with regard to
the judge and some of therulings that he made and um,
which I'll let you speak to,but, but um, along with that, if
(43:09):
you could just answer how youmanage the unexpected when it
arises in the courtroom,
Tom (43:13):
you do your best.
I don't know how else to answerthat question.
You know, it's unexpected.
I think a lot of effective triallawyer thing is good reaction.
Um, I think a lot of bad triallawyer airing has poor reaction.
Um, you know, in the late 1980s,I was with a civil law firm for
a while and I tried a number oflegal malpractice cases, civil
(43:37):
cases for the plaintiffs and forthe defense.
And what I discovered waslawyers were the worst witnesses
on the planet and the easiest toexamine, and I would have
thought going into it, it wouldbe the opposite, that lawyers
would be particularly astuteabout the courtroom and would
know what they're doing.
And it turned out to be exactlythe opposite.
They were the easiest witnessesto examine and make it look bad.
(43:58):
Why was that?
Because lawyers are taught to bevery careful about what they say
and write and to carefullyconsider various alternatives.
Again, be before they speak orbefore they write.
And you would ask a lawyer themost basic question, you know,
where were you?
(44:20):
And the lawyer would hesitate,roll their eyes, think about the
perfect language to use.
And then in the process, yourtypical juror who's not a lawyer
and thinks people just respondis saying, this guy's a liar.
I don't trust him.
Or, you know, um, you'd ask, uh,did you see the following?
(44:41):
And they would roll their eyes,think their head goes up, their
head goes down, they took turnto the left, they turned to the
right.
They finally look at you andsay, I have no general
recollection.
And then of course you wouldlook them and say, well, do you
have a specific recollection?
They would give the sameprocess.
(45:02):
And I'd say, sir, look at thejury.
Answer the question truthfully.
Did you see this or not?
Now this kind of thing, youcould make them look so horrible
and they actually thought theywere doing a good job.
You know?
So, um, one great thing abouttrial lawyering as a courtroom,
as the laboratory of life, it'swhere every aspect of human
(45:22):
nature is, is alive and well,uh, for a variety of reasons.
And everybody has to do theirbest to make the system work in
the most opportune way at Ken.
Jurors have to take their oathseriously and do their best.
Judges have two prosecutors havetwo defense lawyers, have two
bailiffs, have two witnesses,have to, you know, uh, it's an
(45:43):
interactive thing.
Um, and every trial has a uniquechemistry that has never been
there before and never will bethere afterwards.
And spontaneity, given thatunique chemistry and the way
trials move, uh, is extremelyimportant.
You have to be able to think onyour feet, react, respond,
keeping in mind your jurors,looking at you, the judges
(46:05):
looking at you, witnesses arelooking at you, your clients
looking at you.
Um, it's a very dynamic thing.
Uh, I feel very blessed to be atrial lawyer.
I'm very lucky that, uh, I foundthis profession and um, I think
it's fantastic, but it's not foreverybody clearly for one of the
reasons being what you, thequestion you just asked, not
(46:27):
everybody feels good on theirfeet responding cause witnesses
will do things that nobodypredicted.
Someone you think will be a goodwitness.
It turns out to be awful foryou.
Someone you thought would be aterrible witness for you ends up
helping you a strategy shift inthe middle of the trial and the
Michael Jackson trial, weexpected a seven to eight month
trial.
Both sides did and you know, itended up about five months
(46:51):
because I cut down on ourwitness list considerably when I
thought we were doing well and Ithought the jury is ready to
ready to deliberate on thiscase.
So I switched strategy very,very, uh, quickly and in a very
significant way.
I was asked, why are we notcalling this jury, this jury
witness and that witness?
And I said, look, I think, Ithink this jury is Willis.
(47:14):
I think they really seen thetruth.
I think they're getting tired.
This has been a long ordeal.
My instincts, my gut is tellingme get this into the jury room
now.
And I operated on that instinctand this is where what you're
speaking about, I thinkparallels a lot of
Dr. Shepp (47:30):
different crafts and lines of work that people might
find themselves in where theyhave to narrow their attention
to what's taking place in themoment.
In order to have the mostcreative thought.
I mean, certainly you preparefor a trial.
Um, I'll speak a little bitlater about the amount of
preparation, but you certainlyprepare your very well prepared
for the courtroom.
(47:50):
But yet at the same time, youreally have to be present in the
moment in order to pay attentionto the, the number of things
that you're talking about.
Not allow those things to causeyou to feel so much pressure
that you, you become too nervousor, or that you lose focus.
But instead to be able to havethe freedom of thought, to think
creatively and strategically.
Tom (48:10):
Well, that's true.
Everything you said is correct.
Um, as I said before, it's alaboratory of living and it's
very counterintuitive processand doesn't always flow the way
people assume it will.
Um, I'm just reminded of anaudiotape I heard in the mid
eighties, uh, that was given bya well known trial lawyer named
Jerry Spence.
(48:31):
Uh, and Jerry Spence a was agreat legal marketer of his
talents and a, and a great triallawyer.
And, but he gave a very candidtalk to a bunch of lawyers and
he said, you know, um, you maythink that the best trial lawyer
in New York, the best trial orin Chicago is my major threat
(48:52):
when I show into the will showup in those towns.
Cause then he wasn't from there.
He's friendly.
Oming he said, that's not trueat all.
He said, my worst nightmare isthe following.
I walk into a courtroom and myopponent is a young woman fresh
out of law school who is shakingin her boots is a nervous wreck,
a clearly under confident andnervous about what she has to
(49:15):
do.
Um, you know, if it's, if it'sthe, if the president of the
Chicago bar associs in shows up,I'm not worried at all.
But if this woman shows up andas a nervous wreck in her
opening statement and says,listen, I'm not experienced.
I shouldn't be in the samecourtroom as mr spans.
Uh, please forgive myindiscretions.
(49:36):
I may not always know what I'mdoing.
I'm sorry.
Uh, what am I supposed to dowhen, when she says that, and I
learned a lot from that.
I still remember that speechbecause people have these
stereotypes of what works andwhat doesn't work.
Life is too complicated.
People are too complicated.
The courtroom's too complicatedfor that.
(49:58):
And sometimes people who thinkthat quote best unquote lawyer
is, are very ineffective.
And sometimes people watch alawyer almost operating in a
comical way cause they don'tknow and they're scared and
they're inexperienced and jurorslike them.
So you know, the uncertainty ofthe courtroom can be
exhilarating.
It can be, but you know, a lotof the dynamics are very hard to
(50:22):
explain and very hard topredict.
But you do your best
Speaker 5 (50:25):
[inaudible] yeah.
Dr. Shepp (50:34):
Does that shift as our culture shifts?
So for example, now a where wefind ourselves in the Mitsu
culture and also with thedialogue that takes place, the
knee jerk reactions that happenon social media, the dialogue
takes place where there's somuch vitriol and so much rushed
to judgment does.
Does that affect kind of the,the social laboratory of the
(50:56):
[inaudible]?
Tom (50:57):
I think it can.
I think in defending some ofthese cases, I think it's wise
to have females with you.
If you're a man like me andyou're defending a male charged
with sexual assault of a female,I think it's wise to have some
females on your team.
I know that sounds very generaland maybe not everybody likes
hearing that, but it's true.
(51:19):
Um, this me too.
Movement is a, is a complicatingfactor in the court room because
I support the me too movement.
Uh, to the extent that me toomovement, ferrets out sexual
harassment, sexual assault, uh,taking advantage of women, uh,
for various reasons, uh, thatferrets all that out in ways
that have not been done before.
(51:39):
I'm in favor of it.
The problem is that we're, we'reright now, we're in the most
passionate phase of the me toomovement and I fear that that's
making false and flimsyallegations much more easy and
much more effective than theyshould be.
Um, and I fear that because allof us are affected consciously
and unconsciously by what wehear in the media and experience
(52:01):
in our lives.
I fear a lot of jurors orwalking into court rooms,
presuming the defendants guiltywhen they shouldn't.
And I think it's challengingcriminal defense lawyers to
really fight for due process oflaw.
The presumption of innocence,proof beyond a reasonable doubt.
It's making it much moredifficult.
And you know, when you'requestioning jurors, they will
always say, I'll be fair, I'lllisten to the judge's
(52:23):
instructions.
And they may not even realizehow unconsciously or
subconsciously they've beenaffected.
You know, 30 year oldaccusations are destroying
careers before the, you know,the guy has a chance to even
explain himself or, or, ordefend himself.
I don't think that's right.
I think, you know, both sidesneed to be heard out because
(52:45):
people aren't always truthful,not because they intended to
save or lie.
They're not always truthfulbecause data and material that's
gone into their head have nowaffected their perception of
things.
Um, look at the back.
Do eye witness identification,look at the psychology of that.
You know, basically part of thepsychology of faulty eye witness
(53:08):
identification is that whensomeone remember is just a few
aspects of somebody they'rewatching commit a crime, uh, and
then it's shown a picture andthey pick a picture out.
Uh, they now incorporate all theother and from then on they
believe those other features arepart of what they saw when they
(53:30):
may not be what they really saw.
So I don't like, uh, I'm infavor of me too.
Of course I am.
I mean, so the way a lot ofwomen have been treated as
atrocious in every walk of life,in every, in, in real, in by
religious institutions, byHollywood, by wall street.
I mean, you name it.
(53:50):
Um, but by the same token, youcan't just presume people guilty
because an accusation is made.
You've got to look at why theperson is making the accusation.
Now what motivated them to do atwhat are they trying to get out
of it?
Um, so it's a complicated matterthat unfortunately the extremist
and me too are making difficultto deal with.
(54:12):
Certainly in my business,
Dr. Shepp (54:14):
it's more of an uphill climb you have if you
have the societal forces as wellas the individual psychological
forces that are alreadypresuming things about you as a,
as a defense attorney, um, orperhaps your client depending on
his gender or, or position inlife.
Um, and, and so it's more of anuphill climb for you to have to
(54:36):
overcome?
Tom (54:36):
I think so.
I do think so.
And I think, uh, things willeven out as time goes on, I
think some of the extremistreactions to it will balance
out, but it's a very powerful,very important, very meaningful
movement.
I'm glad it's here, but I worryabout the extremes.
Dr. Shepp (54:53):
I'm, I'm, I'm aware of the time and I, and I'm,
you're, you're so generous withit.
I don't know if you want to takea break or if I can keep
speaking to you.
There's, there's a lot more thanI want to talk about.
One of the things that struck mejust in, in reading about you
and listening to some of yourprior interviews is the, the way
you, you seem to be a valuebased attorney that your, your
(55:15):
values and the things that youcherish, um, about life and find
important seem to run us threadsin, in what you talk about.
And one of the things that stoodout to me is the value of
freedom.
So certainly you talk about thepresumption of innocence and
that's part of one of thefreedoms that we enjoy here, uh,
as American citizens.
But, but you also talk about thefreedom to think creatively, the
(55:38):
freedom to be the artist in thecourtroom.
You've mentioned that you're theartist and you hold the brushes
and you make those decisions andnot your client.
You have the freedom to do thatand kind of own that freedom in
your role.
But it seems as though thatmight be a value that you hold
that, that value of freedom.
Tom (55:55):
Well, yes.
I mean, it starts with a, anacceptance that, but for the
grace of God, I could've gonecertain directions that clients
went.
I mean, I was raised in anaffluent home.
There were problems, there wereinstabilities and insecurities
and my parents were not perfect,but they were loving people.
(56:17):
They loved me and wanted to dothe best for me.
And I was sent to good schoolsand a, again, mistakes were
made.
Uh, nothing was perfect.
Um, we all have issues.
We carry with us the rest of ourlives sometimes, uh, from those
early days.
But nevertheless, I look at ayoung black man in Watts, uh,
(56:38):
who grows up with none of myadvantages.
And the family unit for whateverreason, doesn't function.
And young men want to identifywith something and they want to
belong to something and theywant to feel protected by
something.
And I mean, given who I am andexperiences I had and the
(56:59):
influences I had, what I havebehaved a lot better.
If I had no family.
And the gang said, where yourfamily will give you protection
will give you an identity, we'llgive you power.
And young man want power forexample.
What I affair it a lot better.
I don't know, it scares me causeI just don't know.
(57:22):
Uh, I would hope I would havefared better, but I don't know
if I would have.
So when I see the system takepeople like this and just squash
them and just assume they haveno redeeming qualities at all.
And particularly when I see Ivyleague educated, affluent, um,
(57:43):
lawyers stepping on these peopleso horribly.
And again, I know that somepeople have to be convicted and
sent to prison.
I understand that.
And some people are justdangerous and vicious.
I understand that.
But as I, years ago I don't doas much gang defense.
Now I do some, but I do morewhite collar work and federal
(58:04):
work and um, but I still do.
I do, uh, you know, a homicidecase every year in the deep
South free.
I still do keep my foot in, inthis particular part of society
and part of the legal systemwhen I see just the horrible
aversion to finding anythinggood about these people, young
men who want meaning, who wantpurpose, who wants some power or
(58:27):
wants them identity, who havenobody saying, don't do that.
You could do better than that.
Young men who think there'll bedead when they're 21.
Anyway, so what's thedifference?
Uh, and no church and no gangintervention group trying to
help them and, and uh, it, itgets more complicated from
(58:48):
there.
Again, depending on the crimeand where someone comes from, uh
, a father tries to put food onthe table and can't.
Um, I look at all this and Isay, we, our system can't just
SAP all the humanity out of thisperson.
System must in some way lookinto who the person is and find
some value and not justsummarily throw them on the
(59:13):
trash heap for the rest of theirlife.
Um, I think it's a challengethat society has.
It's a challenge we as humanbeings have.
It's certainly a challenge.
Speaker 1 (59:22):
Criminal defense lawyers have.
Speaker 6 (59:24):
Okay,
Speaker 1 (59:34):
this has been managed the moment with dr Shep, my
physical action of moments.
It's how you manage the momentsthat makes the difference.
My sincere thanks again to TomMesereau for joining me for this
conversation, and thank you forlistening.
Don't forget, we'll have parttwo of this conversation with
Tom coming up next time.
You can subscribe to the managethe moment podcast for free just
(59:56):
by clicking the subscribe buttonwherever you're listening to
this podcast, and then you'll besure to get the newest episodes
as soon as they're uploaded.
And for more information aboutthe manage the moment podcast,
you can see the episode notesfor this broadcast.
You'll also find us on socialmedia, and I'm on Twitter and
Instagram at dr Shep.
Thanks so much for listening andtaking the time to share these
(01:00:17):
moments with us.
Until next time.
Speaker 6 (01:00:21):
Right.
Thanks for tuning in to manage the moment
conversations in performancepsychology.
I'm Dr.Sari Shepphird.
Tom (00:17):
I learned that performance involves far more than
artificial contrived, uh, fakeways of behaving.
That true performance involveswho you are as a person, your
emotions, your depression, youranger, your in your anxiety,
your great happiness, uh, your,your gratitude.
(00:37):
I mean, whatever the panoply ofemotions inside you are.
Real performance is you and Ireally concluded authenticity to
me being who you are no more, noless is a major component of
performance.
Dr. Shepp (00:56):
Thomas Mesereau is regarded by some as an
unconventional, unpredictabletrial attorney.
His accomplishments in thecourtroom as a high stakes trial
lawyer are extraordinary and hisexperiences are unprecedented,
having been lead counsel on themost high profile trial in
American history.
There are some things thoughthat you might not know about
Tom- Like he took a sitcomacting class for example, or
(01:19):
that he likes to defy logic byincorporating his sense of self
into his work in the courtroomthrough emotion, humor and
compassion.
Tom knows who he is and it's hisauthenticity that has helped him
to be one of the most effectivetrial lawyers, in modern times.
But is performer, the word thatsomeone would use to describe a
courtroom attorney.?That'ssomething that he and I
(01:40):
discussed when we sat downtogether for this conversation
in his office in Los Angeles.
And this first part of ourtwo-part conversation, we also
talk about managing thepressures of public opinion and
we will hear more of Tom'spersonal perspective than he has
shared in past interviews inthis fascinating and insightful
first of two parts of ourconversation.
Here's Tom.
Good morning.
(02:02):
Tom.
Thank you so much for beinghere.
I'm very excited to speak withyou.
Tom (02:05):
Thank you for having me.
Dr. Shepp (02:06):
Absolutely.
It's my pleasure.
Um, there's so many things thatI'd like to be able to talk with
you about today because I thinkbeing a courtroom attorney, most
of our listeners will reallyfind it fascinating how much of
an overlap there is between, uh,performance psychology, sports
psychology principles andmindset that one brings to
their, to their skill when theyexecuted in a moment of time.
(02:28):
And the work that you do as a,as a trial attorney.
I know from your background thatI'm guessing any way that you
probably have a, some sort ofsense of, of sports psychology
given that your father was a, uh, a football coach alongside
Vince Lombardi.
Tom (02:44):
He was at West point.
My father grew up inBergenfield, New Jersey where
Vince Lombardi was raised.
My father attended and playedfootball in high school at st
Cecilia's high school where hewas an all state football player
and then went to West point andhe was an all American, a West
point and then played serviceball after, uh, after world war
(03:05):
II ended.
Um, and he was an assistantcoach at army under Earl Blake,
who was a very famous coach in,in the history of college
football.
And at one point Blake waslooking for an assistant coach
and my father suggested he goback to his high school, st
Cecelia's in Englewood, NewJersey, where the head coach was
Vince Lombardi and talk to VinceLombardi about his first college
(03:27):
job.
So as it worked out, they bothwere assistant coaches at West
point together in the lateforties.
Um, quite an interesting story.
Dr. Shepp (03:35):
Absolutely.
Did your father talk about, uh,I don't know what kind of dinner
table conversations you mighthave had.
Did he talk about the psychologyof performance and in sport?
Tom (03:45):
I wouldn't say did that.
Uh, he wasn't much of a braggartabout his accomplishments.
Um, I can't say we ever had adiscussion like that.
Uh, but I did have my, uh,grandfather who was quite well
known in New York city forowning a very well known
restaurant.
And he had been an Italianimmigrant who was raised in
hell's kitchen, which was a slumof New York at the time.
(04:05):
Now it's all gentrified, but hismother, uh, who immigrated as
well from Northern Italy,started a smaller restaurant and
expanded it a number of timesand it became quite well known.
And my father was a re, mygrandfather was a real
performer.
If you asked me, he was a hugerestaurant.
He could make every patron atevery table feel like they were
the focus of his attention.
(04:27):
And it was kind of a naturalthing.
He didn't go through anytraining or instruction on this,
but he was quite a showman, atremendous chef, and tremendous
in the restaurant business.
So I would say if you talkedabout who performed in my
upbringing, I would say he wasprobably more of a quote
performer and of code than myfather was.
Dr. Shepp (04:46):
Did you take anything away from watching your
grandfather in that kind of asetting?
Tom (04:50):
Well, he was a very, a very gifted, very talented,
ferociously hardworking person,a real immigrant success story.
Uh, and he always emphasize hardwork and he emphasized a
promotion and he emphasized hewas, there were scarcely a day,
it wasn't in the newspapers inNew York at his restaurant.
He gave free meals tojournalists and, and uh, was
(05:11):
quite a character, I have tosay.
Dr. Shepp (05:13):
And this was [inaudible], is that correct?
Absolutely.
Yes.
So very, very successful,well-known restaurant.
Tom (05:18):
Yes.
Unfortunately, there was somefamily splits early in life and
it was sold in the late fifties.
And he, but he was a real NewYork character, real New York
showman and uh, and his ownnatural way.
You look at the way he dressed,uh, the, for the ties he wore
and, and just the personalapproach he gave to every, every
customer at every table, uh,felt Geno Leoni was really
(05:40):
focusing on them and he justcould do something like that.
He brought politicians, hebrought famous performers,
actors.
It was at 48th and Broadway inNew York, which is a theater
district.
And so a lot of, uh, that worlddid affect me as a boy.
Dr. Shepp (05:54):
It's interesting that you talk about the, to speak to
somebody as though they're theonly person in the room to
really give that attention.
And, and if I could just drawthe parallel to the current work
that you do now, because Iimagine that's a lot of what you
need to do when you speak tothose, those 12 people on the
jury, um, is, is to make themfeel as though you're speaking
(06:14):
directly to them and, andconnecting directly to them.
Tom (06:17):
Well, I, I don't want to overdo the performance aspect of
this.
And by the way, the wordperformance, uh, is somewhat of
a loaded word to me.
And I'll explain to you why.
Um, in my early thirties, I wentthrough a very difficult
personal period of my life.
I went through a divorce.
I had financial problems.
(06:39):
My grandfather was dying.
I was responsible for him.
My father was, was dying.
I, you know, was very involvedin that.
I switched jobs and I used to, Itook my father to a cancer
clinic in Mexico for alternativemethods.
I used to replace my sister andweekends at the clinic.
And it was a tough time in mylife.
It was the first time, so manyproblems had converged at once.
(07:00):
You know, we all always haveproblems, whether we're young,
old, whatever.
But this was a real crisisperiod for me.
And I came out of it.
Uh, when the, when the smokecleared, I was somewhat of a
withdrawn individual.
Uh, I have, uh, I have a veryintroverted side anyway.
I have a side that has alwaysliked to just be alone and
(07:21):
observe people anyway.
But at this period in my life, Iknew that something needed to
change.
Uh, I had lived a life thatlooked good on paper and in my
opinion was not, and I waswilling to face that.
So among other things, I took afew acting classes, I took a
method acting class and I took asit situation, comedy class.
(07:43):
I taught the sit-com classbecause I felt like I hadn't
laughed for a long time.
Uh, I felt very withdrawn.
I took the method acting classbecause I was at a bookstore and
I'm a prolific reader and I loveyou as a bookstore is and lament
that they're going out ofbusiness so much today.
But I was at a used bookstorebuying a bunch of books and I
saw these tapes, the craft ofacting by a fellow named Eric
(08:07):
Morris for five bucks.
And I bought them, listen tothem.
I called him up and said, I'mnot an actor, I'm a lawyer.
Um, but your class interests me.
I listened to some audio tapesand I said, would you be willing
to let a lawyer show up?
They said, sure.
And I've actually counseledlawyers before, so I'll never
forget a, and this was in the80s, the mid eighties.
(08:29):
I went to one of his classeswhere he had actors getting up
on stage and doing variousexercises that he required them
to do.
And I was horrified at what Iwas seeing.
Um, and I said to him that thislooked almost too difficult for
me cause he had actors goinginto anger at parents said anger
(08:50):
at various issues andconversely, great joy in their
life.
You know, you had them lookingat empty chairs where they would
match in apparent was there, andthey would tell them what they
had done to hurt the actor orconversely, all the wonderful
love and things that they haddone to help the actor.
And they would ex, he wouldexplore feelings.
And I was not someone who feltthat comfortable exploring
(09:11):
feelings like that.
So I remember he asked me to getup and just say who I was, uh,
my name.
Uh, how I grew up, uh, myeducation, what I do for a
living.
And he said, stop.
At one point I've already gothim.
He said, you're someone whobasically uses your intellect
and your ability to articulate,to hide what's inside of you
(09:34):
emotionally.
And he said, you have a lot ofways of getting away from being
hurt emotionally.
And he said, I'm, if you do thisclass and I'm urging you to do
it, he said, I'm going to haveyou doing exercises that are
going to be very difficult foryou.
They're going to involveantilogic, anti leadership, anti
control.
And I ended up attending thisclass once a week for a number
(09:58):
of years.
Um, not so much to be, uh, alawyer, but to be a person.
And I learned that performanceinvolves far more than
artificial, contrived, uh, fakeways of behaving.
That true performance involveswho you are as a person, your
emotions, your depression, youranger, your, your anxiety, your
(10:22):
great happiness.
Uh, your, your, uh, gratitude.
I mean, whatever the panoply ofemotions inside you are real
performance is you.
And he said to me in that firstevening, he said, the whole
purpose of this class is to knowwho you are and be comfortable
with it.
No more, no less.
(10:42):
And he said, the greatperformers really are
themselves.
Whether it's in a part, whetherit's, you know, on stage,
whatever it may be, they reallyare themselves.
And I did this class, I read alot of his books and of course I
was a prolific reader on triallawyering.
And I really concluded, based onmy observations, I used to run
(11:03):
down to watch famous lawyers trycases wherever I was.
I would read their books orbooks about them.
And I came to the conclusionthat the most effective trial
lawyers were really themselves.
And at some of the mosteffective trial lawyers were not
terribly dramatic or theatrical.
Uh, and they were somewhatboring, maybe dull, maybe
(11:23):
methodical, but they were reallywho they, who they are.
And some of the least effectivetrial lawyers were very
theatrical, very, uh, very loud,very colorful, and they were the
least effective at getting theirmessage across.
So authenticity to me being whoyou are no more, no less is a
(11:44):
major component of performanceand contriving a role and
putting on airs and putting onfake anger or fake laughter is
not what performance really ismeant to be at all.
So I wanted to, let's to laythat out for you so you
understand where I'm comingfrom.
I fear that a lot of thelisteners might think the word
(12:05):
performance can connotessomething very contrived,
something very fake, somethingvery artificial.
It can if you don't know whatyou're doing.
But I think performance whendone well and done properly is a
lot deeper than that.
Speaker 4 (12:25):
[inaudible]
Dr. Shepp (12:25):
You've articulated very well some of the things
that I often talk about in mywork with clients, because
performers, regardless of theircraft, whether they be actors,
whether they be businessleaders, whether they be
attorneys, whether they beathletes, often come to their
work with a sense of needing toeither prove something or or
pretend about something and it'sactually counterproductive to
(12:47):
their performance.
So to be able to eliminate that,that artificial nature and find
a way to connect to one's one'sown self, one's own values,
one's own constructs, one's ownability and have that be more
authentic is invariably going toenhance someone's performance.
I'm glad you clarified the wordbecause I do think that it's
(13:07):
important to do that because inmy line of work and those who
are listening who might comefrom a background of performance
psychology, we understand it tomean being able to, to work at
one's best and optimize thetalents and the skills that they
bring to the craft that they,that they engage in.
But listeners outside ofperformance psychology might
associate that with a differentconnotations.
So I appreciate that you didthat.
Tom (13:28):
Well, I've never studied performance psychology, so I
know nothing about it.
Uh, I know what I've done, uh,therapeutically and to improve
myself and also in the, in thecourt room.
So that's kinda where I come.
So some of your, some of whatyou talk about may or may not be
familiar to me given the kind ofwork you do and the kind of work
I do, but, but certainly happyto talk about it.
Dr. Shepp (13:51):
We might use different terminology, but I
would imagine that there's a lotof overlap because you, you
obviously are aware of thedynamic that's happening in a
courtroom.
I mean, you, you must follow,um, body language of jurors and,
and um, and, and what their eyecontact might be and what some
of the, the looks on their facesmight be.
And, and you're not a mindreader, neither am I.
(14:13):
um, people might assume thatsometimes about you as an
attorney, those on the outsidejust as they do in, in my
profession, but you're obviouslynot a mind reader.
Get your, you must be a keenobserver.
Tom (14:22):
Well, I'd like to think I am, but you only have so much to
work with.
For example, a jury selectiongoes fairly quickly in a
courtroom much too quickly toreally understand who the
potential jurors are.
Uh, when you're given anopportunity to question them,
which you're not always given,uh, particularly in federal
court where a lot of judges wantto kind of monopolize the
(14:42):
questioning and get it done.
Um, you know, first of all, ifyou're allowed to question, it's
not that long.
Second of all, people arecomplicated that sometimes they
don't know who they arethemselves, let alone you
figuring out who they are in 20minutes.
Um, so it may not be as, uh,insightful a process as you
(15:04):
would want it to be or hope itwould be, but nevertheless,
you've got to deal with thecards you're dealt.
So yes, you try and figure outin a generalized sense what kind
of juror might work best for youin a particular case.
Um, uh, but that's generalities.
Who are these people really noteasy to say.
(15:25):
Sometimes you get aninstinctive, intuitive feel for
someone.
That's powerful.
Cause I like to think of myselfas an intuitive, instinctive
person, uh, as well as dealingwith legal issues and factual
issues.
Uh, and keep in mind that incollege, in law school, nobody
teaches you EEQ they basicallyteach your IQ.
You know, people come out of lawschool I think less comfortable
(15:48):
and less insightful about humanbeings than they were when they
went in.
That's interesting because youwill look at students who come
out of college, um, where theyspend four years interacting
with a wide cross section ofpeople, uh, developing a,
hopefully a sense of who theyare, taking a wide variety of
subjects.
Um, they show up optimistic and,and uh, with a glow in their eye
(16:12):
and an excitement to law school.
And three years later afterhaving argument drummed into
them and Socratic method drummedinto them and facts drummed into
them, they seem less happy, lesshealthy and no one has, nobody
has taught them how to evaluatehuman beings, how to judge human
beings or how to relate to humanbeings.
[inaudible] I think one of thefallacies of legal education is
(16:34):
that people aren't taught enoughhow to behave in the courtroom,
uh, when they're given theopportunity to represent, you
know, clients.
By the same token, you look atdoctors, you know, they have to,
they get out of medical schooland they have to go through a
residency period, uh, wherethey're dealing with
practicality.
But people get out of law schoolpassed the bar, which is an
(16:55):
academic exercise and suddenlythey're have the right to have
lies in their hands.
And I don't think it'snecessarily well done the way we
do it.
And that's been, this has been apoint of criticism for by trial
lawyers for many years about ourlegal education.
Yes, you can take trial practicein law school and most people
do.
Yes, you take a course inevidence, but do you really know
(17:16):
what the court rooms like?
They really don't.
Um, and there's no extra yeartreating trial lawyers as a
specialty that deals withemotions, deals with human
interaction deals with judgingand evaluating people,
communicating with people.
You don't have much training inthat.
Dr. Shepp (17:35):
And yet that's so important in the work that you
do because you must have, I, Iremember you saying in an
interview that you, you try tospend some portion of your day
to find out at least one thingabout client that you're working
Tom (17:50):
with that will help them to be humanized.
Well, I spent a lot of timeearly in my career defending
gang members in Los Angeles andthe deep South.
And you know, in the earlynineties, uh, LA was a
slaughterhouse, the gangviolence, Crip shooting, bloods,
blood shooting Crips, uh, gangsfrom East LA shooting each
(18:13):
other.
I mean, this was going on everynight in the late nineties
because in the 80s, the adventof crack cocaine basically
decentralize and disorganizedthe drug business in Los
Angeles.
Whereas it used to have somepowerful people who controlled
it alone.
Now you had, you know, smalltime crack dealers trying to
(18:34):
protect their, their turf, theirblock and make money.
And it increased the amount ofviolence tremendously.
Uh, decentralizing the, the, theillegal drug business ended up
with a, uh, a huge violentaftermath which was going on on
a daily basis.
And young men were just inshooting each other every
(18:55):
evening in South LA and East LAwas horrific.
And when society is faced with athreat like this, uh, whether
it's an external war, whetherit's an internal war, which it
was, society tends to find waysto deal with it.
And the first thing is that goour civil liberties when our
country, our society is at war,civil liberties are the first
(19:18):
things that people are willingto do away with to deal with
this war.
And what I noticed was that theLA district attorney's office,
which is the largest districtattorney's office in the
country, over a thousanddistrict attorneys larger than
any other city, they had ahardcore gang unit that was
designed to prosecute gangmembers.
And they were prosecuting gangmurders all the time.
(19:39):
And what I learned was thatevery other unit, whether it was
domestic violence, whether itwas special crimes, whether it
was insurance fraud, every otherunit would not bring a case on
the basis of a single eyewitness identification.
Unless there was evidence tocorroborate that, I wouldn't say
identification.
The only unit in the DA's officethat was bringing criminal
(20:02):
charges based on a soleeyewitness ID, even if there was
nothing to corroborate, it wasthe hardcore gang unit because
there was such a fear of gangmembers.
There was such a fear of thisviolence escalating out of
control that they wanted to justget these people off the street
and lock them up.
And I was bothered by that.
I understood the impetus behindit, but I was bothered by it.
(20:23):
So I said to myself, you know,these young men from South LA,
they're being railroaded rightthrough the system.
If they have a tattoo or if theyhave a moniker, you know,
jurors, some other parts of townare willing to just assume that
they're, they're violent,they're guilty, they're
criminals.
They may not be, they may bekids that walked out the door
and on the way to school, had todeal with gang members, had to
(20:44):
play Kate them, had to playalong with them without really
doing anything wrong.
But the system was just washingthese people away.
And I saw young prosecutors withelite educations like myself, uh
, who didn't grow up in theseneighborhoods, like I didn't,
uh, just assuming they're allgang bangers and, and, and
de-valuing them by definitionfrom where they came from, how
(21:07):
they dressed, their race, theirincome level, whatever.
I didn't like it.
So I failed.
You've got to find a way todefend your clients effectively.
And I decided the first way wasto humanize them in ways they
were being, they were not beinghumanized effectively in court.
So I would hang out with thefamily.
I would go to the neighborhoodvarious times a day.
(21:28):
I would try and find out how myclient lived and, and what
influenced, uh, for good or fornot good, uh, in their lives.
I, I'd ask them what good youdid.
Do you go to church?
Do you, do you try to helppeople?
Who's the last person you triedto?
You tried to help in some wayand why didn't you do that?
And try and find the human sidethat maybe no one had, had
(21:49):
examined before and then try andbring that into the court room.
And I discovered that I was muchmore effective at defending
these cases than most lawyers Iknew.
Um, again, we don't get out alot.
We don't learn in law school howto humanize a client.
We don't learn how to humanizeourselves, let alone the client.
So I think that's my response towhat you're talking about.
(22:10):
Uh, I would put on characterdefenses when nobody would do
it.
Um, there was a thought that ifyou put on a character fancy,
you opened the door to theprosecutor to bring an evidence
of bad character.
But my thought was they alreadyhave destroyed the, the
reputation of the client byvirtue of their charges in their
case.
Um, show them who the client is.
(22:31):
And I would put clients on thestand more than others and ask
them about their upbringing,asked them about their
development, uh, asked themabout obstacles in their life,
uh, and then put on characterwitnesses if I had them to
basically say what theirreputation was.
And a lot of them were justfighting a survival battle to
deal with the gangs in theirneighborhood without being in
gangs at all.
(22:51):
Some of them were trying toimpress the girls by, you know,
wearing tattoos and doingthings.
And, and no more than that.
Some of them were reallyhardcore gang members and some
of them were not.
And to bring in the complexityof life in neighborhoods where
the jurors from other parts oftown had never been a, was part
was a challenge.
But something I tried to do in,in my defense of, uh, of these
(23:13):
cases
Dr. Shepp (23:14):
and this was more than a legal strategy to me.
It sounds like you have a set,you know, a high E Q emotional
intelligence, um, quotient thatwould lead you to understand the
importance of people being ableto see another side of the
defendant or, or of your client.
And is, was part of that, um,understanding of the importance
(23:36):
of that.
Is that something that camethrough your work in method
acting and connecting to yourown sense of, of emotionality?
Tom (23:42):
Well, I think we're all a sum of everything we do.
Life, you know, good or bad.
Uh, our victories, our defeats,our great moments are at sad
moments, whatever they may be.
They all make up who we are aspeople.
So looking at it that way, Ithink everything I did
contributed to, I think I hadcompassionate parents who were
very compassionate, kind people.
(24:04):
Um, did not like racism, did notlike de-valuing people based on
race or religion, that kind ofthing.
Um, my upbringing was primarilyminorities on the East coast,
Irish and Italian.
I have two Irish grandmothersand Italian grandfather and uh,
my other grandfather was Frenchand Irish.
Um, the Italian influence wasmore predominant growing up.
(24:25):
Probably than the Irishinfluence, but I have more Irish
blood in me than anything else.
But nevertheless, I grew up withan interest in people.
The restaurant business, whichmy grandfather and father were,
were in, did expose you to a lotof types of people.
Um, so I think I'm someone whogrew up with maybe a little more
empathy than most people.
Uh, I think the, trying tofigure out what a strong man was
(24:49):
growing up was difficult becausemy concept of a strong man was
not someone who was particularlysympathetic or sensitive or
caring.
And I had to deal with thatissue as part of my upbringing.
I think a lot of men in thosedays had to deal with it and
probably still do.
What's a strong tough man?
What's a, what's a real, uh, areal masculine person like, and
(25:10):
what's, what's, what's he notlike?
And that kind of thing.
So, um, I think, well, what,what the, what the method acting
did was just helped meunderstand myself and not be
afraid of my feelings.
You know, for example, Iremember there was an exercise
where we had to get intodepression when we'd been
depressed.
We had to lie on the floor andclose our eyes.
(25:31):
And think of the last time wewere deeply depressed and dwell
on it.
And this was so hard for mebecause to me, when you've been
depressed, you want to get awayfrom it.
Do you want to bury it?
You know, run as far aspossible.
What I discovered was thatactors saw access to when they
were depressed as a great virtuebecause if they were required to
(25:51):
play a part of someone who isgoing through depression or is
depressed, they want to borrowon their own experiences.
I didn't know any of this untilI got in this class and found it
very hard to deal with, butultimately very helpful to me
understanding my strengths andweaknesses and what I ran away
from in my life and what I wouldtry to Barry cause I wasn't
raised to, to access thesefeelings and, and confront them
(26:15):
and think that was okay.
Um, so listen, as far as jurorsgo, we live in a time where
people are much moresophisticated than maybe 30
years ago.
And they've watched TV, they sawthe OJ Simpson case, which was a
watershed case in Americanhistory, it seems like yesterday
(26:37):
to me, but it's 25 years ago.
And people watch what lawyers doand witnesses do, prosecutors
do.
And there was all sorts ofcommentary, some good and some
not good surrounding that, thattrial, which took over America
for about nine months.
And I think as a result of that,uh, potential jurors are much
more versed in what happens in acourt room for better or for
(27:01):
worse.
I mean, it's, society seems tobe fixated on true crime
stories.
Now you've got ID channel,you've got other channels like
oxygen and a and a trying todevelop their true crime, you
know, chapters.
Um, and it just seems likepeople can't get enough of date
line and 48 hours and 2020.
And so you have jurorsinterviewed on these shows, you
(27:23):
have snapshots of the courtroomon these shows.
And I think, you know, thatthere were probably good and bad
things that are coming out ofthis, but nevertheless, I don't
think people are as naive whenthey walk into a courtroom.
Uh, I think they haveexpectations, which may be good
or not good.
But I think the worst thing alawyer can do is be a phony.
You know, I think if you havefake laughter and fake reactions
(27:46):
and fake gestures, and I thinkjurors are going to see that
pretty quickly.
Uh, court rooms are verycounterintuitive to what a lot
of people expect.
Uh, there's something about acourtroom that's different and
people don't always expect it tobe different.
Um, uh, sometimes people who areeffective salespeople outside
(28:09):
the courtroom or not in acourtroom, I've always thought
politicians who are great atselling themselves in a certain
context outside of courtcourtroom tend not to be the
best witnesses.
You know, I don't know how toexplain it except that a lot of
what happens is counterintuitiveand jurors take their job very
seriously.
They know that what they'rebeing asked to do is going to
(28:31):
affect someone's life.
In one way or another.
And I think, you know, althoughthey're human and they're not
perfect, I think they try torise to the occasion as best
they can to do what's right.
Unfortunately, they're onlyhuman.
And the trial process is not aperfect process for bringing the
truth in.
You know, we're, we're reallyreconstructing what happened
(28:52):
somewhere else, uh, according tocertain norms and rules and
procedures.
And that can never be perfectand there are always going to be
miscarriages of justice.
We see it all the time.
I mean, the last I checked, over300 people had been released
from lengthy prison sentences ordeath sentences or life
sentences because of DNA.
I mean, those are 300 peoplewhere there was DNA to check.
(29:15):
And as a psychologist, I'm sureyou know, the problems with eye
witness identification, they'rejust, you know, Legion Juris can
be very effective when someonesays, I'll never forget that
face.
And they pointed the person andthey may be completely wrong.
And they're in many instanceswhere they have been proven
completely wrong.
They don't, they pick the wrongperson.
I mean, I'll never forget, uh,when I first agreed to do a
(29:37):
death penalty case in the stateof Alabama, I agreed to do it
free.
This was 20 years ago.
It was a homeless black mancharged with killing of
beautiful white girl and atrendy part of Birmingham,
Alabama.
And there was tremendous emotionand passion behind this case.
And two white lawyers wereappointed to defend the person I
agree to defend with them.
(29:58):
[inaudible] they were gettingracist threats on their
answering machines.
Uh, the N word was being used,et cetera.
So I agreed to help them.
And I discovered that a, Iwould've sided eye witness
identification expert had nevertestified in a criminal case in
the state of Alabama.
I'd been using such experts inLos Angeles.
(30:18):
So I found a psychologist fromthe university of Alabama at
Birmingham who taught a chorusthat dealt with partially dealt
with eyewitness identificationand the problems.
And you know, it was assumedthat if somebody's in the heat
of, of, of violence or in theheat of a crime looks in
someone's face, they'll rememberit.
(30:42):
Um, it can be exactly theopposite.
But in my trial preparation, Icalled a white woman in North
Carolina who had been raped by ablack man and who had testified
at the defendant's trial.
She said, you know, this man wason top of me.
I could not overpower him.
He was too, too strong for me.
And I looked at his eyes and Ilooked at his nose and I looked
(31:04):
at his mouth and his ears andhis cheeks and his teeth and his
hair.
And I said, I'm going toremember that face.
And she pointed at the defendantand said, that's the man that
raped me.
He was convicted, he went toprison.
And there was a reversal on atechnicality.
They had a second trial.
She said the same thing.
And then one day she got a callfrom the investigator who said,
(31:26):
I've got good news and bad newsfor you.
I'll start with a bad news.
That's not the man who rapedyou.
And the good news is we foundthe man who raped you.
He's in another prison.
We did a DNA match and theyreleased the black man.
She had identified and she wasjust horrified by what she had
done.
Uh, she said he was veryforgiving, said, you know, you
(31:48):
weren't trying to lie oranything.
I know you thought what you weredoing was right.
But she just, when I spoke toher 20 years ago, she was
speaking around the countryabout the problems of, of
particularly cross racial eyewitness identification and the,
the studies consistently showthat the races have trouble
identifying other races.
(32:09):
And when you mix in violence andshock and this kind of thing,
you make it even more difficult.
But Asians identifyingHispanics, Hispanics,
identifying whites, whites,identifying blacks, I mean
everybody has much moredifficulty identifying people in
another race, particularly in asetting like this where there
(32:30):
are shots and there's focus onthe gun and, and there's poor
lighting and, and people haveall sorts of emotional deficits.
They're going through this.
So, uh, that had to be pointedout.
Um, and we did point out in thetrial and it was an acquittal
which generated a lot of angerin parts of town.
(32:50):
Um, again, my co-counsel gotdeath threats on his machine and
family members are pointing atme in the court room.
And, and I know what we did wasright.
I know this fellow didn't dothis.
Um, but nevertheless, uh, thecourt room is not perfect.
It's the best legal system inthe world, but it's not a
perfect system.
And we need criminal offense.
Lawyers who are courageous andprepared and dedicated to fight
(33:14):
even when public opinion isagainst them.
And even when the media isconditioned, you know, potential
jurors for a conviction, uh, wehave to make the system work,
um, more than anybody, uh, toprotect our clients and protect
the system.
So that's maybe a roundaboutanswer to your question, but,
uh,
Dr. Shepp (33:32):
now it's fascinating to me because you're talking so
much about the complexity ofwhat you need to manage in the
courtroom, but also in yourprofession.
Because here you've talked aboutthe vulnerability that you
gained, um, and, and the way itenhanced your own life
experience to connect to your,to your emotions.
But at the same time, you have adifferent side of things where
(33:53):
just the, the work that you do,uh, might make you vulnerable
and other ways vulnerable topeople's perceptions, to their
opinions, to their judgements ofyou.
I mean, receiving death threatsand, and, and looks from people
in the courtroom.
And I would imagine it looksfrom people that you still get
for defending some of the peoplethat you've defended.
And so that, but that iscontrary to the vulnerability
(34:15):
that you spoke about.
Tom (34:17):
We're all complicated.
I guess I am too.
But you know, I, I think the,the thrust of your interview is
performance in the court roomand performance means a lot of
things.
I mean, it means trying tofigure out what the best defense
for your client may be givenwhere you're trying the case
given you know, what theevidence is given the times you
(34:37):
live in.
Um, performance can mean pickinga jury.
Um, that's, I guess you'd callthat performing for your client.
Again, it's not some artificialtheatrical thing.
Um, but I think insight intohuman nature, which again, law
school is just do not teach andmost lawyers and law firms spend
(34:57):
no time on can be veryimportant, particularly in
criminal defense.
And I'm talking about all kindsof cases cause I try white
collar cases in federal court.
I try not unlike holler casesand in state court and
everything in between.
Um, but let me, let me mentionjury selection in the Michael
Jackson case cause there's anaspect to it that uh, you might
(35:17):
be interested in.
And that's the issue of race inthe court room.
Um, when I took over the MichaelJackson case, I immediately
change a lot of things that weregoing on by prior defense
counsel that I didn't approve ofand didn't like and didn't think
would be terribly effective forMichael.
First of all, I learnedsomething about Michael.
I talked with him extensivelyand I did research on who he was
(35:40):
as a person.
I'd always liked his music, butI never was a real student of
his music.
And it became pretty clear thathe was a person who brought
races together, didn't dividethem.
So when I got into the, youknow, there was the song he sang
, it doesn't matter if you'reblack or white.
He had adopted children of otherraces.
He plan to do more of that.
(36:00):
Uh, he was a person who wantedto bring all races together.
But when I was observing how thedefense was conducting
themselves in the MichaelJackson case, before I got in, I
was seeing just the opposite.
Michael would show up with thenation of Islam surrounding him,
providing security.
And I understood why he wantedit.
He was felt terribly threatened.
(36:21):
Uh, his father, his siblingswere going on TV, calling this
illegal lynching and reallymaking race a predominant issue.
And I very quickly said, I don'twant the nation of Islam to be
prominent around Michael.
I don't want his, his siblingsor his father going on TV or
radio, calling it a racial andperform of injustice.
(36:42):
It may be, but I don't want themsaying that because this is
going to be tried in apredominantly white community.
A worry, we may not get oneblack person on the jury.
And Andy, we didn't have a blackperson on the jury.
We had one black alternate whonever made it to the main jury.
But I said, look, this is your,where you chose to live.
You, you hire people of allraces, people of all races that
(37:04):
are in your immediate family.
I mean, I said, look, we have toshow that you bring people
together that will appeal towhite people.
Particularly racial divisionwill not appeal to white people
at all walking into thatcourtroom.
Um, you know, because whitepeople, particularly after the,
you know, Simpson case, whichwas very divisive, uh, where
there was such a difference ofopinion given people's race, uh,
(37:27):
as to whether the verdict wasappropriate or not.
And so I changed that whole partof it.
Now when we were picking a jury,uh, you can imagine the panel
showed up.
There were media everywhereoutside the courthouse.
There was an effort by the courtpersonnel to hide people from
the media as much as they could.
(37:48):
But this was the most watchedcase in American history.
There were over 2200 accreditedmedia in Santa Maria, which is
Northern Santa Barbara Countywatching the trial that's more
than OJ Simpson and ScottPeterson combined.
So there was all sorts ofconcern everywhere as to how
media could affect what goes onin the courtroom.
But nevertheless, the jury comesin, we've got three white male
(38:12):
prosecutors and their white malejury consultant.
Okay.
Uh, the defense is white, acouple of white males and an
Asian American female.
Okay.
But I had studied theprosecutors how they were
behaving from the moment I metthem, I felt they were just,
hubris was everywhere.
They just felt they could neverlose this case.
(38:34):
They were to be movie starsaround the world that they won.
And they seem to be very full ofthemselves.
And I know white men and theytend to be very deficient when
it comes to understanding of theblack community, black history,
black neighborhoods, blackpeople, et cetera.
So you don't have much of ablack community in Santa Barbara
(38:56):
County.
You very small one.
So I observed these prosecutors,how they behave and how they
reacted.
I would ask them questions whenwe had moments, you know,
talking lawyer to lawyer.
And I said to myself, they thinkthere's no way the defense can
win.
And the defense, all blacks aregoing to be behind Michael
(39:18):
Jackson and[inaudible] is goingto want a black on the jury to
hang the jury.
That's a very simplistic way oflooking at things.
But that's what I felt they weredoing.
And that's what I used in myjury selection.
And I'll tell you how I used it.
Um, you have a, typically in atrial, you have a panel of
(39:39):
initial jurors and each side hasa certain number of challenges.
They can exercise, uh, to removepeople without giving a reason.
And these are called peremptorychallenges.
You don't have to give a reason,but you can't remove someone if
you violate the constitution.
In other words, you can't removesomeone's solely on race or
(39:59):
solely on gender.
So miraculously on the firstpanel, a black woman appeared
and they immediately removedher.
So I asked to go to sidebar andraised a constitutional
objection that they were doingthis Jeff's on race and my
motion was denied.
To my astonishment, anotherblack woman showed up on a later
(40:21):
panel and they removed herimmediately.
So I went to sidebar again, madea constitutional objection and
you know that they're notallowed to do this.
And it was denied.
They came up with reasons thatthey claim were race neutral for
removing these two black women.
So I think I gave them theimpression that their suspicions
(40:43):
of me were confirmed given myobjections and how I behaved.
So we had a jury, uh, that Iliked and I had a number of
challenges left and theyaccepted the panel.
I think leaving a few jurors onthey didn't particularly care
for.
But here's what I thought theywere doing.
(41:04):
There was a young black man inthe alternate ranks who if I
kept raising them, makingobjections and moving jurors
out, a, I should say objections.
If I kept challenging jurors andmoving them out, there was
mathematically I could end upwith that young black man on the
jury.
And so they kept accepting thepanel and accepting the panel,
(41:26):
hoping I would use up mychallenges and my feeling was
he'll get beat, they think he'llget on the jury then then
they'll remove and a bunch ofothers they don't like.
And at one point they acceptedthat panel.
And with more than half mychallenges remaining, I accepted
the panel and I saw their jawsdrop.
I saw their jaws completelydropped because I don't think
this was the panel they reallywanted.
(41:47):
They were playing their racestrategy and I called their
bluff and got them.
The jury didn't have one blackperson on it and Michael Jackson
was acquitted of every singlecount.
Um, so race comes into thecourtroom in various different
ways.
Um, this is one way it workedout.
Um, but I don't think very manypeople knew about at the time or
(42:09):
figure it out.
And, and I, by the way, had toconvince my client and his
family that I didn't neednecessarily need an African
American juror cause they wereconcerned about that as you
would expect.
You know, they knew the historyof black celebrities being
unfairly prosecuted andconvicted in America.
They thought this was horriblein justice.
They thought black jurors wouldhave more of an understanding of
(42:29):
that.
You can't blame them forthinking that.
Um, but I told them, I said,look, the way I'm going to
present this defense, don'tworry about that.
It's not gonna, it's not gonnamatter.
And they think I'm just totallydependent on their concept of
what a black juror will do andI'm going to use that against
them.
And that's what I did.
Dr. Shepp (42:48):
It's very astute.
It speaks to, again, to yourawareness of the psychology of
human beings and how thatimpacts your work.
And I read and understand thatthere were a number of things
that you needed to overcomealong that line with regard to
the judge and some of therulings that he made and um,
which I'll let you speak to,but, but um, along with that, if
(43:09):
you could just answer how youmanage the unexpected when it
arises in the courtroom,
Tom (43:13):
you do your best.
I don't know how else to answerthat question.
You know, it's unexpected.
I think a lot of effective triallawyer thing is good reaction.
Um, I think a lot of bad triallawyer airing has poor reaction.
Um, you know, in the late 1980s,I was with a civil law firm for
a while and I tried a number oflegal malpractice cases, civil
(43:37):
cases for the plaintiffs and forthe defense.
And what I discovered waslawyers were the worst witnesses
on the planet and the easiest toexamine, and I would have
thought going into it, it wouldbe the opposite, that lawyers
would be particularly astuteabout the courtroom and would
know what they're doing.
And it turned out to be exactlythe opposite.
They were the easiest witnessesto examine and make it look bad.
(43:58):
Why was that?
Because lawyers are taught to bevery careful about what they say
and write and to carefullyconsider various alternatives.
Again, be before they speak orbefore they write.
And you would ask a lawyer themost basic question, you know,
where were you?
(44:20):
And the lawyer would hesitate,roll their eyes, think about the
perfect language to use.
And then in the process, yourtypical juror who's not a lawyer
and thinks people just respondis saying, this guy's a liar.
I don't trust him.
Or, you know, um, you'd ask, uh,did you see the following?
(44:41):
And they would roll their eyes,think their head goes up, their
head goes down, they took turnto the left, they turned to the
right.
They finally look at you andsay, I have no general
recollection.
And then of course you wouldlook them and say, well, do you
have a specific recollection?
They would give the sameprocess.
(45:02):
And I'd say, sir, look at thejury.
Answer the question truthfully.
Did you see this or not?
Now this kind of thing, youcould make them look so horrible
and they actually thought theywere doing a good job.
You know?
So, um, one great thing abouttrial lawyering as a courtroom,
as the laboratory of life, it'swhere every aspect of human
(45:22):
nature is, is alive and well,uh, for a variety of reasons.
And everybody has to do theirbest to make the system work in
the most opportune way at Ken.
Jurors have to take their oathseriously and do their best.
Judges have two prosecutors havetwo defense lawyers, have two
bailiffs, have two witnesses,have to, you know, uh, it's an
(45:43):
interactive thing.
Um, and every trial has a uniquechemistry that has never been
there before and never will bethere afterwards.
And spontaneity, given thatunique chemistry and the way
trials move, uh, is extremelyimportant.
You have to be able to think onyour feet, react, respond,
keeping in mind your jurors,looking at you, the judges
(46:05):
looking at you, witnesses arelooking at you, your clients
looking at you.
Um, it's a very dynamic thing.
Uh, I feel very blessed to be atrial lawyer.
I'm very lucky that, uh, I foundthis profession and um, I think
it's fantastic, but it's not foreverybody clearly for one of the
reasons being what you, thequestion you just asked, not
(46:27):
everybody feels good on theirfeet responding cause witnesses
will do things that nobodypredicted.
Someone you think will be a goodwitness.
It turns out to be awful foryou.
Someone you thought would be aterrible witness for you ends up
helping you a strategy shift inthe middle of the trial and the
Michael Jackson trial, weexpected a seven to eight month
trial.
Both sides did and you know, itended up about five months
(46:51):
because I cut down on ourwitness list considerably when I
thought we were doing well and Ithought the jury is ready to
ready to deliberate on thiscase.
So I switched strategy very,very, uh, quickly and in a very
significant way.
I was asked, why are we notcalling this jury, this jury
witness and that witness?
And I said, look, I think, Ithink this jury is Willis.
(47:14):
I think they really seen thetruth.
I think they're getting tired.
This has been a long ordeal.
My instincts, my gut is tellingme get this into the jury room
now.
And I operated on that instinctand this is where what you're
speaking about, I thinkparallels a lot of
Dr. Shepp (47:30):
different crafts and lines of work that people might
find themselves in where theyhave to narrow their attention
to what's taking place in themoment.
In order to have the mostcreative thought.
I mean, certainly you preparefor a trial.
Um, I'll speak a little bitlater about the amount of
preparation, but you certainlyprepare your very well prepared
for the courtroom.
(47:50):
But yet at the same time, youreally have to be present in the
moment in order to pay attentionto the, the number of things
that you're talking about.
Not allow those things to causeyou to feel so much pressure
that you, you become too nervousor, or that you lose focus.
But instead to be able to havethe freedom of thought, to think
creatively and strategically.
Tom (48:10):
Well, that's true.
Everything you said is correct.
Um, as I said before, it's alaboratory of living and it's
very counterintuitive processand doesn't always flow the way
people assume it will.
Um, I'm just reminded of anaudiotape I heard in the mid
eighties, uh, that was given bya well known trial lawyer named
Jerry Spence.
(48:31):
Uh, and Jerry Spence a was agreat legal marketer of his
talents and a, and a great triallawyer.
And, but he gave a very candidtalk to a bunch of lawyers and
he said, you know, um, you maythink that the best trial lawyer
in New York, the best trial orin Chicago is my major threat
(48:52):
when I show into the will showup in those towns.
Cause then he wasn't from there.
He's friendly.
Oming he said, that's not trueat all.
He said, my worst nightmare isthe following.
I walk into a courtroom and myopponent is a young woman fresh
out of law school who is shakingin her boots is a nervous wreck,
a clearly under confident andnervous about what she has to
(49:15):
do.
Um, you know, if it's, if it'sthe, if the president of the
Chicago bar associs in shows up,I'm not worried at all.
But if this woman shows up andas a nervous wreck in her
opening statement and says,listen, I'm not experienced.
I shouldn't be in the samecourtroom as mr spans.
Uh, please forgive myindiscretions.
(49:36):
I may not always know what I'mdoing.
I'm sorry.
Uh, what am I supposed to dowhen, when she says that, and I
learned a lot from that.
I still remember that speechbecause people have these
stereotypes of what works andwhat doesn't work.
Life is too complicated.
People are too complicated.
The courtroom's too complicatedfor that.
(49:58):
And sometimes people who thinkthat quote best unquote lawyer
is, are very ineffective.
And sometimes people watch alawyer almost operating in a
comical way cause they don'tknow and they're scared and
they're inexperienced and jurorslike them.
So you know, the uncertainty ofthe courtroom can be
exhilarating.
It can be, but you know, a lotof the dynamics are very hard to
(50:22):
explain and very hard topredict.
But you do your best
Speaker 5 (50:25):
[inaudible] yeah.
Dr. Shepp (50:34):
Does that shift as our culture shifts?
So for example, now a where wefind ourselves in the Mitsu
culture and also with thedialogue that takes place, the
knee jerk reactions that happenon social media, the dialogue
takes place where there's somuch vitriol and so much rushed
to judgment does.
Does that affect kind of the,the social laboratory of the
(50:56):
[inaudible]?
Tom (50:57):
I think it can.
I think in defending some ofthese cases, I think it's wise
to have females with you.
If you're a man like me andyou're defending a male charged
with sexual assault of a female,I think it's wise to have some
females on your team.
I know that sounds very generaland maybe not everybody likes
hearing that, but it's true.
(51:19):
Um, this me too.
Movement is a, is a complicatingfactor in the court room because
I support the me too movement.
Uh, to the extent that me toomovement, ferrets out sexual
harassment, sexual assault, uh,taking advantage of women, uh,
for various reasons, uh, thatferrets all that out in ways
that have not been done before.
(51:39):
I'm in favor of it.
The problem is that we're, we'reright now, we're in the most
passionate phase of the me toomovement and I fear that that's
making false and flimsyallegations much more easy and
much more effective than theyshould be.
Um, and I fear that because allof us are affected consciously
and unconsciously by what wehear in the media and experience
(52:01):
in our lives.
I fear a lot of jurors orwalking into court rooms,
presuming the defendants guiltywhen they shouldn't.
And I think it's challengingcriminal defense lawyers to
really fight for due process oflaw.
The presumption of innocence,proof beyond a reasonable doubt.
It's making it much moredifficult.
And you know, when you'requestioning jurors, they will
always say, I'll be fair, I'lllisten to the judge's
(52:23):
instructions.
And they may not even realizehow unconsciously or
subconsciously they've beenaffected.
You know, 30 year oldaccusations are destroying
careers before the, you know,the guy has a chance to even
explain himself or, or, ordefend himself.
I don't think that's right.
I think, you know, both sidesneed to be heard out because
(52:45):
people aren't always truthful,not because they intended to
save or lie.
They're not always truthfulbecause data and material that's
gone into their head have nowaffected their perception of
things.
Um, look at the back.
Do eye witness identification,look at the psychology of that.
You know, basically part of thepsychology of faulty eye witness
(53:08):
identification is that whensomeone remember is just a few
aspects of somebody they'rewatching commit a crime, uh, and
then it's shown a picture andthey pick a picture out.
Uh, they now incorporate all theother and from then on they
believe those other features arepart of what they saw when they
(53:30):
may not be what they really saw.
So I don't like, uh, I'm infavor of me too.
Of course I am.
I mean, so the way a lot ofwomen have been treated as
atrocious in every walk of life,in every, in, in real, in by
religious institutions, byHollywood, by wall street.
I mean, you name it.
(53:50):
Um, but by the same token, youcan't just presume people guilty
because an accusation is made.
You've got to look at why theperson is making the accusation.
Now what motivated them to do atwhat are they trying to get out
of it?
Um, so it's a complicated matterthat unfortunately the extremist
and me too are making difficultto deal with.
(54:12):
Certainly in my business,
Dr. Shepp (54:14):
it's more of an uphill climb you have if you
have the societal forces as wellas the individual psychological
forces that are alreadypresuming things about you as a,
as a defense attorney, um, orperhaps your client depending on
his gender or, or position inlife.
Um, and, and so it's more of anuphill climb for you to have to
(54:36):
overcome?
Tom (54:36):
I think so.
I do think so.
And I think, uh, things willeven out as time goes on, I
think some of the extremistreactions to it will balance
out, but it's a very powerful,very important, very meaningful
movement.
I'm glad it's here, but I worryabout the extremes.
Dr. Shepp (54:53):
I'm, I'm, I'm aware of the time and I, and I'm,
you're, you're so generous withit.
I don't know if you want to takea break or if I can keep
speaking to you.
There's, there's a lot more thanI want to talk about.
One of the things that struck mejust in, in reading about you
and listening to some of yourprior interviews is the, the way
you, you seem to be a valuebased attorney that your, your
(55:15):
values and the things that youcherish, um, about life and find
important seem to run us threadsin, in what you talk about.
And one of the things that stoodout to me is the value of
freedom.
So certainly you talk about thepresumption of innocence and
that's part of one of thefreedoms that we enjoy here, uh,
as American citizens.
But, but you also talk about thefreedom to think creatively, the
(55:38):
freedom to be the artist in thecourtroom.
You've mentioned that you're theartist and you hold the brushes
and you make those decisions andnot your client.
You have the freedom to do thatand kind of own that freedom in
your role.
But it seems as though thatmight be a value that you hold
that, that value of freedom.
Tom (55:55):
Well, yes.
I mean, it starts with a, anacceptance that, but for the
grace of God, I could've gonecertain directions that clients
went.
I mean, I was raised in anaffluent home.
There were problems, there wereinstabilities and insecurities
and my parents were not perfect,but they were loving people.
(56:17):
They loved me and wanted to dothe best for me.
And I was sent to good schoolsand a, again, mistakes were
made.
Uh, nothing was perfect.
Um, we all have issues.
We carry with us the rest of ourlives sometimes, uh, from those
early days.
But nevertheless, I look at ayoung black man in Watts, uh,
(56:38):
who grows up with none of myadvantages.
And the family unit for whateverreason, doesn't function.
And young men want to identifywith something and they want to
belong to something and theywant to feel protected by
something.
And I mean, given who I am andexperiences I had and the
(56:59):
influences I had, what I havebehaved a lot better.
If I had no family.
And the gang said, where yourfamily will give you protection
will give you an identity, we'llgive you power.
And young man want power forexample.
What I affair it a lot better.
I don't know, it scares me causeI just don't know.
(57:22):
Uh, I would hope I would havefared better, but I don't know
if I would have.
So when I see the system takepeople like this and just squash
them and just assume they haveno redeeming qualities at all.
And particularly when I see Ivyleague educated, affluent, um,
(57:43):
lawyers stepping on these peopleso horribly.
And again, I know that somepeople have to be convicted and
sent to prison.
I understand that.
And some people are justdangerous and vicious.
I understand that.
But as I, years ago I don't doas much gang defense.
Now I do some, but I do morewhite collar work and federal
(58:04):
work and um, but I still do.
I do, uh, you know, a homicidecase every year in the deep
South free.
I still do keep my foot in, inthis particular part of society
and part of the legal systemwhen I see just the horrible
aversion to finding anythinggood about these people, young
men who want meaning, who wantpurpose, who wants some power or
(58:27):
wants them identity, who havenobody saying, don't do that.
You could do better than that.
Young men who think there'll bedead when they're 21.
Anyway, so what's thedifference?
Uh, and no church and no gangintervention group trying to
help them and, and uh, it, itgets more complicated from
(58:48):
there.
Again, depending on the crimeand where someone comes from, uh
, a father tries to put food onthe table and can't.
Um, I look at all this and Isay, we, our system can't just
SAP all the humanity out of thisperson.
System must in some way lookinto who the person is and find
some value and not justsummarily throw them on the
(59:13):
trash heap for the rest of theirlife.
Um, I think it's a challengethat society has.
It's a challenge we as humanbeings have.
It's certainly a challenge.
Speaker 1 (59:22):
Criminal defense lawyers have.
Speaker 6 (59:24):
Okay,
Speaker 1 (59:34):
this has been managed the moment with dr Shep, my
physical action of moments.
It's how you manage the momentsthat makes the difference.
My sincere thanks again to TomMesereau for joining me for this
conversation, and thank you forlistening.
Don't forget, we'll have parttwo of this conversation with
Tom coming up next time.
You can subscribe to the managethe moment podcast for free just
(59:56):
by clicking the subscribe buttonwherever you're listening to
this podcast, and then you'll besure to get the newest episodes
as soon as they're uploaded.
And for more information aboutthe manage the moment podcast,
you can see the episode notesfor this broadcast.
You'll also find us on socialmedia, and I'm on Twitter and
Instagram at dr Shep.
Thanks so much for listening andtaking the time to share these
(01:00:17):
moments with us.
Until next time.
Speaker 6 (01:00:21):
Right.
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