Tom Mesereau - Internationally Renown Criminal Defense Attorney - Part 2

Part two with Tom Mesereau, one of the best known and most highly regarded courtroom lawyers of our time. In this second half of the conversation, Tom delves into his unconventional techniques in the courtroom. Tom often goes against the expected grain in his craft as a courtroom attorney, but in doing so, he makes himself the most effective lawyer that he can be. Tom talks about how he manages controversy and what he believes makes not just a good, but a great lawyer: things like taking risks and having confidence in your own approach. He talks about managing the tough days, the unexpected moments, the tense courtroom exchanges, and how he avoids the perils of fame in his own celebrated life and career.

Follow on Twitter @drshepp   

Follow on Instagram @drshepp

Learn more about Tom at http://mesereaulaw.com/

Learn more about Dr. Shepp  at SportandPerform.com

Podcast transcripts coming soon at: ManageTheMoment.net

YouTube Channel coming soon!

Music by Brad Buxer

Episode Transcript

Dr. Shepp (00:08):
Thanks for tuning in to Manage the Moment,
Conversations in performancepsychology.
I'm Dr.
Sari Shepphird.
Welcome back to part two of myconversation with Tom Mesereau,
one of the best known and mosthighly regarded courtroom
lawyers of our time.
Despite some technicaldifficulties, Tom and I were
able to finish our conversationand in this second half we delve

(00:29):
into Tom's unconventionaltechniques in the courtroom.

Tom (00:32):
There are tough things you just can't overreact.
You know, I'm a criminal defenselawyer.
I try challenging cases.
I try cases of people warn menot to take.
This is who I am, take it orleave it.

Dr. Shepp (00:47):
Tom often goes against the expected grain in
his craft as a courtroomattorney, but in doing so, he
makes himself the most effectivelawyer that he can be.
You'll hear Tom talk aboutthings like how he manages
controversy and what he believesmakes not just a good but a
great lawyer.
Things like taking risks andhaving confidence in your own
approach.
We talk about managing the toughdays, the unexpected moments,

(01:10):
the tense courtroom exchanges,and how Tom avoids the perils of
fame in his own celebrated lifeand career.
Here's part two of myconversation with Tom.
Well, Tom, thank you again forsitting down with me.

Tom (01:24):
My pleasure.
Thank you.

Dr. Shepp (01:25):
When we last spoke, we were discussing the
unexpected and then theunexpected happened to my
digital recorder.
But if we can start up againthere, I know that you prepare
diligently for the trials, um,that, that you present and do a
lot of reading even when, whenthe day is over in the, in, in
the courtroom.

(01:46):
And yet even as prepared as youmay be, the unexpected often
happens.

Tom (01:50):
Well, the unexpected always happens in trials and that's one
of the appeals of trials ifyou're built for this type of
thing.
I think every trial is unique.
The chemistry between the judge,the jury, the prosecution, the
defense, the jurors is a type ofenergy and a type of process

(02:10):
that has never happened beforeand will never happen since.
So every trial is a learningexperience.
Every trial, uh, forces you tostep into the unknown and react
in any appropriate way.
Um, and that's sort of theattraction of trials.
Now, some people are completelyturned off by that pressure and
that type of unexpected, uh,process.

(02:32):
But I thrive on it.
And I think most trial lawyersare really like what they do.
They thrive on that as well.

Dr. Shepp (02:38):
And I imagine the pressure that you feel doesn't
just come in that form becauseyou really do hold someone's
life in your hands.

Tom (02:46):
You do.
Um, you know, the way our systemworks in the civil courts, we
argue over property and money inthe criminal courts, we argue
over reputation and freedom.
And, uh, many times you holdsomeone's life in your hands and
if you lose in a certain way,they could spend the rest of
their life in prison or worse.

(03:08):
And I've done death penaltycases and, uh, you really hold a
life in your hand in a deathpenalty case.

Dr. Shepp (03:14):
And you mentioned reputation too.
So sometimes you might have adefendant who is acquitted,
found to be not guilty of thecharges that they faced.
And yet reputation is stilldamaged.

Tom (03:24):
That can be a very, very difficult part of our system.
But when I say reputation's atstake, what I primarily mean is
if you have a criminalconviction, it can follow you
the rest of your days, whetherit's a felony or a misdemeanor.
Now there are ways that theseconvictions can be, you know,
expunged, uh, or softened.

(03:45):
Um, but nevertheless, uh, towalk through the rest of your
life with a criminal convictioncan seriously affect your
employment, um, can seriouslyaffect, uh, your ability to be
persuasive in certainsituations.
It can affect you in all kindsof ways.

Dr. Shepp (03:59):
So that's when you really have to be prepared for
the unexpected.
You've said that you don't gettoo excited or, or feel too good
after a good day in court andyou don't become too dejected
after a bad day.

Tom (04:10):
I don't believe in overreacting because it's a
process and each part interactswith every other part.
And you know, you can talk toexperienced trial.
Trial lawyers will tell you someof the best work they did where
it was in trials they lost.
And you can see someone stumblearound and not know what they're
doing at all.
And when, because it's not justa popularity contest among

(04:31):
attorneys.
I mean, jurors are trying to dothe right thing.
They're being hit from all sideswith different arguments and
interpretations.
Um, and um, it's, it's not overtill it's over.
It's Yogi Berra, the oldbaseball player used to say.
So, you know, I think one of theearliest painful lessons to try
a lawyer learns is when you do afantastic cross-examination when

(04:53):
you're young and you thinkyou've won and then you lose.
So, uh, it's a veryunpredictable, uncertain
process.
But good trial lawyers thrive onit and see it as a challenge,
gets their adrenaline flowing.
And that's one of the things wedo.

Dr. Shepp (05:07):
And part of your strategy is to be yourself in
the courtroom.
Is that right?

Tom (05:11):
I've firmly believe that, uh, one of the greatest
opportunities in life foranybody is to find out who they
are and be comfortable with whothey are.
It just so happens to also be abenefit in the courtroom.
If you know who you are, ifyou're at peace with who you
are, if you're comfortable withwho you are and you're real,
that can take you a long way.

(05:33):
And as I've said many times inlectures to law students, to
practicing lawyers, I said, youknow, we've seen theatrical,
dramatic lawyers who are fakeand very ineffective.
We've seen very deadpan,somewhat boring, methodical
lawyers who are very effectivebecause they come across as
real.
They come across as honest andfighting for something they

(05:54):
believe in.

Dr. Shepp (05:55):
So that's, that's an integrity and a within yourself.
And get the jury, you'vementioned, always assume that
you know the truth even if youdon't.
So while you walk, so you walkinto the courtroom being true to
yourself and true to your rolein the courtroom.
But no matter, no matter whatyou may or may not know about
the person you represent, thejury always assumes you do.

Tom (06:16):
In my opinion.
Yes.
And that's a generality.
That's a, that's a perceptionbased upon decades of trying
cases.
And I think they think thelawyers really know what's going
on.
They know that everything is notcoming into the trial.
They've seen enough TV shows andenough, uh, you know, live
trials on TV through the yearsto know that judges refuse to

(06:38):
admit certain evidence.
Judges will suppress certainevidence.
Uh, there are certain rules ofprocedure and evidence that
means certain things can't besaid or done in a court room.
They know that, uh, but theyassume the lawyers know
everything in my opinion.

Dr. Shepp (06:52):
And part of what you have to manage then is your
reaction to those unexpectedthings that might come from the
bench.
So I've read, for example, therewere many things that were
unexpected in, in the bill Cosbytrial for example.

Tom (07:07):
Well, I tried the second bill Cosby trial.
The first trial ended up in ahung jury, uh, between the first
trial and the second trial.
The me too movement took off.

Dr. Shepp (07:17):
Well that's interesting, it was between the
two trials

Tom (07:19):
and what the judge did in the retrial, which I, where I
defended bill Cosby wasbasically in the first trial he
allowed one additional accuserto testify under the theory that
this would show a propensity toact a certain way or a pattern
of acting a certain way.
Then we have the me toomovement.
Then we show up for the retrialand he ups the one to five.

(07:41):
So not only did we have theprimary accuser in the case, the
judge allowed five other womento testify that they were
assaulted by Mr.
Cosby, which is going to be amajor issue on appeal as to
whether, first of all, there wasmuch similarity between the, uh,
the accusers and second of all,uh, whether it was too
prejudicial.

Dr. Shepp (08:00):
So unexpected things that come from the bench,
unexpected things that come fromwitnesses.
Because I know for example, inthe Jackson case, you had
witnesses both that well, Iguess multiple times witnesses
that went in your favor in waysthat you didn't expect.
One witness who you thoughtmight be very antagonistic, who
turned out not to be.
And, and then another witness,which perhaps you can, um, just

(08:22):
refer to where your line ofquestioning led to something
that opened up basically the,the whole trial for you.

Tom (08:29):
I cross examined the main accuser who was a young person,
13 years of age.
And the general rule of thumbin, in criminal defense practice
is be very gentle with children.
You can easily look like abully.
You can easily look manipulativeand you could turn off the jury
and even send the jury into thecamp of the accuser, uh, more

(08:52):
than they may have started offas, um, I had never examined
this witness before.
I had had a tremendous amount ofmaterial in his background.
His school records, his medicalrecords, uh, statements he'd
allegedly made.
Uh, I had, uh, volumes ofmaterial on, on him and, but I
had to feel my way to decide howbest to attack him.

(09:16):
Uh, and I decided after watchinghim on direct examination, when
the prosecutor asked hisquestions, I decided to go right
at him and hopefully change hisdemeanor right away and show
there's another side of thisperson that maybe isn't the
nicest.
That was my strategy.
It was unusual.
Um, and it proved to beeffective.

(09:37):
In fact, I got offers to speakto lawyers groups around the
country after the trial about myunconventional way of handling
child witnesses because theywere all shocked that somebody
would do this and it would beeffective.
But I think what you're talkingabout is a cross examination
question that I asked thatproved to be very effective.
In fact, professor Laurie 11scented Layla law school, who

(10:00):
teaches criminal procedure andis called upon by the media
quite a bit to opine on, on, youknow, current cases in the
media, in the news.
She says, my one particularcross-examination question won
the case.
And before I tell you what itwas, let me also mention that
lawyers are taught that whenthey cross examine, you know,

(10:22):
control the witness, keep themon a tight leash, ask leading
questions.
Uh, factually driven, factuallycontained questions that suggest
the answer and keep them in, ina narrow bind.
Don't let them just go wild andsay whatever they want.
And as part of that instructionand we're taught, don't ask a

(10:42):
hell question and don't ask awhy question because those
questions, we'll let them justbring out the kitchen sink and
it probably won't be favorable.
When I was examining this youngaccuser and based upon my
research into he and his family,I came to the conclusion that
they had developed some angertowards Michael Jackson.
And I've concluded that they gotangry when they thought Michael

(11:05):
Jackson was drawing away fromthem and they weren't going to
be part of his family forever.
So I asked this young accuser,um, about certain events that
went on, it never land wherethey used to stay that I knew
would bring up some anger.
And for example, you know,didn't Michael Jackson tell you

(11:26):
he wasn't going to be there in acertain day and you walked out
of your cabin and you looked inthe distance and you could see
him?
Did that happen?
And he said yes, and or words tothat effect.
And I mentioned other instanceswhere I thought he would be
somewhat angry.
And then I finally looked at himand said, you are really angry
at Michael Jackson, weren't youwhen he said yes, and I said,

(11:46):
why?
And you could have heard a pindrop in the courtroom.
And he gave this long list ofthings that angered him about
Michael Jackson, but nevermentioned that he was molested.
And that was a big gamble on mypart.
Could have ruined, you know, thecase for Michael Jackson could
have ruined my career frankly.

(12:06):
Um, but I just decided to go forit when I thought it would be
effective and I was correct.
Big moment in the trial and bigmoment in my career,

Dr. Shepp (12:14):
certainly.
And of course, again, that justspeaks to how you manage your
own emotions in the courtroombecause you can be as prepared
as any person could be.
And I know that you, you doprepare extensively.
You have binders on all of yourwitnesses and all of all of
this?

Tom (12:30):
Well I like to have for each witness, I like every
document that mentions thatwitness and I'd like them all in
chronological order.
And the documents can be policereports, they can be transcripts
of testimony, transcripts ofinterviews, handwritten notes of
interviews, newspaper articles.
I don't care what it is, I liketo have them in contour in, in,

(12:51):
in, in, you know, in order, uh,dated order, chronological
order.
And I like to go through themand through them and through
them.
And I start to see patternswhere, where maybe statements
change or maybe statements areembellished because of certain
intervening events.
Um, and I develop a, a profilein my mind of how I'm going to

(13:12):
attack the witness.

Dr. Shepp (13:13):
It's fascinating.
You have more than just one job.
I mean, we think of a trialattorney as the person who
presents information to thejury, but you, you're a
detective of sorts and youcertainly have to be, uh, an
accomplished presenter just tobe able to phrase things in such
a way that you connect to thejury.

Tom (13:33):
Well, you know, early in your career, you know, you write
out all your questions and you,you, you almost appear a slave
to your, your notes and a slaveto your questions.
Cause you know, not only haveyou put a lot of time into this
but you're not as confident in,in, in being spontaneous.
You're not in con as confidentin reacting to a certain

(13:54):
statement and going in a certaindirection and then coming back
to where you were.
Um, it's a skill that noteverybody has, but I think
reaction is very important, butdon't lose track of where you
want to go at the same time.
So a witness will say somethingyou never expected and you'll
see an opportunity to go inanother direction, ask questions

(14:17):
in that direction, benefit fromit.
But you don't want to forgetwhere you were because you were
in that place for particularreasons.
So a lot of it's in my head.
Um, I go through documentsrepeatedly.
I go through the evidence.
I think of the story I'mtelling.
Um, I was very flattered inDecember.

(14:39):
Uh, I had dinner with the, uh,public defender of San
Francisco, a great criminallawyer who unfortunately passed
away not long after we haddinner.
It was a real tragedy.
Jeff, a DACI one of the greatcriminal in America.
[inaudible] and he, he hadinvited me to speak a couple of
times at the San Franciscopublic defenders.
And one thing he said, you saidto us, that changed our, really

(15:01):
affected our office and changedthe way we approached trials.
You told us that there were fouropportunities to tell your story
in your opening statement, inyour cross examination of
prosecution witnesses in yourdirect examination of your
witnesses and in your closingargument.
So Jeff told me that they werenow teaching this, uh, in their

(15:22):
courses at the San Franciscopublic defender's office, which
was a great compliment to me andI really appreciated it and was
glad I, uh, I had an impact on,uh, on that great office.
It's one of the best publicdefender's offices in America.
Um, these things are, are notalways taught in law school.
You have to, if you care aboutwhat you're doing and you

(15:42):
realize it's a craft and an art,not a science, and that
psychology is a complex thingthat you're always learning
about, you try to figure outwhat's effective, what's
persuasive, what makes animpact.
And I remember one witness inthe, in the Michael Jackson
case, I had 20 binders ofdocuments that I had been there
all in chronological order.

(16:04):
Uh, it was Michael Jackson's exwife who everyone thought was
going to help the prosecution.
In fact, um, when I woke up thatmorning and was getting dressed
and watching the morning shows,you know, they were talking
about what a big day theyexpected for the prosecution and
she blew up in their face.
She just turned out to be one ofour best witnesses.
And I didn't use one document inthose 20 volumes.

(16:26):
I just realized where she wasgoing.
I realized she was in a verydelicate state and I just very
carefully and gently took her afew directions I wanted to take
her.
And it was a great day for us.
And I remember the next morninggetting ready for trial.
And the, the news stories, youknow, good morning America and
the today show, we're all sayingthe lead story was words to the

(16:48):
effect.
Did a, did a main prosecutionwitness blow up in their face.
You know, that was the big storythe next day.
Um, but you have to be preparedfor, for things like that
because it's just a veryunpredictable process.

Dr. Shepp (17:01):
And that's partly what's fascinating to me is the
strategy that you have tomaintain.
And really it's, it's largely onyou to do this just singularly
for your, for yourself and foryour client.
Obviously you have co-counselthat might support what you're
doing, but, but as you say,really a lot of this is just
taking place in your own mind.

Tom (17:19):
Well, I have to have help organizing.
You know, I always haveco-counsel who helps me organize
and helps me put these bookstogether.
And you know, uh, I try to pickpeople to work with who will
compliment me.
I can be a little bit of a madscientist is I'm preparing and
I, I often prepare standing up,you know, in my office and
walking around.

(17:41):
Um, so trying in my mind to getmy cross-examinations ready
cause a lot of what I do isquick and spontaneous.
I'm not just looking atquestions, see another problem
with lawyers who prepare in aconventional way.
As I just mentioned, that I had20 buy in volumes of documents
prepared for a witness anddidn't use one of them because

(18:02):
things just turned out to be sodifferent.
The problem with a lot oflawyers is when they're
preparing for trial is that theyinvest time and preparation.
They want to use thatpreparation.
You know, it becomes almost anarcissistic problem.
You know, I did all this, I'mnot going to scuttle it, throw
it away.
And they lose track of where theimportance is.

(18:25):
Um, the importance is trying towin the day for your client.
And um, you know, if you seethat you don't need your
preparation or it might becounterproductive, just go
forward, be spontaneous, react.
Don't just pedantically readsomething because you spent so
much time preparing it.

Dr. Shepp (18:43):
So that speaks to the flexibility that you have to
have in your mindset.
You need to narrow yourattention to what's essential
for that day in yourpreparation.
And yet you have to maintain aflexibility.
Um, and, and I suppose, uh, aconfidence within yourself to,
to be able to, to abandon thatpreparation if, if it's called
for

Tom (19:02):
and it takes time to develop that.
Not everybody has the ability todo it.
They're not particularly facileon their feet.
They're not particularlyintuitive.
They're not particularlyinstinctive the way I'm
describing things.
It's not for everybody, but a,it's certainly where I belong.

Dr. Shepp (19:19):
Do you find that at times it's your conviction and
only yours that you have to relyon in order to move forward in a
particular line of questioningor decision making?
For example, if you, if yourco-counsel might even disagree
with you and you're the, you'rethe one person who still has to
maintain that, that track.

Tom (19:39):
Well as I suggested before, if your cross examination of
course you may have yourcross-examining a main
prosecution witness.
Um, the Jim one general rule ofthumb is don't let them just
keep talking and talking object,you know, object.
If somebody just goes off ontangents and gives speeches
because they're probably notgoing to help you.

(20:00):
In the Michael Jackson case, Ihad examined the mother of the
accuser in a pretrial hearing.
It was a pretrial hearing whereI didn't expect to win the issue
that I was presenting to thecourt, but I really want to take
a look at her and she was arelevant witness in this
evidentiary hearing and I saidto myself, you know, she's a

(20:21):
loose cannon, she's going to gooff and all sorts of different
directions and I think it'sgoing to hurt the prosecution.
So when she was called to thestand by the prosecutor put on
direct examination, she startedjust giving these speeches and
talks and he was looking at mewaiting for me to object and I

(20:41):
wouldn't object.
I just said the more she talks,the more she's going to vary
them.
And he kept looking at me andfinally he started objecting to
his own witness, which lookedterrible.
So instead of me saying,objection, your honor,
non-responsive, move to strikeor answer, he was doing it and
it just compounded theirproblems.
And may that made their caselook awful.

(21:02):
Now that was not something younormally do.
There was a lawyer sitting withthe defense, a very good lawyer
who kept looking at me, why areyou letting this go on?
And he didn't quite get what Iwas doing.
Later on, when the jurorsrequest you and they said she
buried them, she buried themwith her behavior, whether her
statements, I mean, I did knowwhat I was doing, but it was
certainly not normal.

Dr. Shepp (21:23):
And so sometimes the, the reinforcement, sometimes
that support might not be whereyou would wish it to be.

Tom (21:29):
Well, that's true.
That's true.
Um, but let me to say somethingelse.
I'm a little bit more of a risktaker than most.
I think there were trials I'veone that I never would have won
if I hadn't taken the risks thatI took.
But if you're a risk taker, youget burned sometimes too.
Um, but I just decided at onepoint in my career that, uh, the
best trial lawyers, the ones whowin the most cases tend to be

(21:51):
risk takers.

Dr. Shepp (21:52):
Did that come from some sort of a confidence that
you had in your own skill andability to take those risks?

Tom (21:57):
Well, not early in my career.
I think I had to learn who I wasand learned who I, who I was, uh
, in the courtroom, you know,and I think, I mean, I think
we're always learning who we areif we're lucky.
We're always evolving andhopefully changing and growing.
Um, but I think that thatapplies to the court room as
well.
So early in my career I wastrying to do what I was taught
to do and I was trying to usethe fundamentals of trial

(22:21):
practice that I was taught inschool that you, that you, you
have in books about how to try acase.
And it was as I learned that I'dsaid to myself at one point,
what makes certain trial lawyersparticularly great as opposed to
good?
What do these people have thatthe others don't seem to?
And in the process of trying tofigure that out through a lot of

(22:43):
reading, a lot of watching, alot of observation.
I do society, they tend to berisk takers.
They tended to take creativeapproaches to individual trials.
They're not always successful.
Sometimes it blows up in theirface, but more often than not, I
think they have prevail in caseswhere others would not prevail.
And look, I mean, I've alwayssaid if you follow the

(23:05):
fundamentals, you'll neverembarrass yourself, but you also
won't win a lot of cases youpossibly could win if you took
some risks.
The careful lawyer who willwon't take risks and and
routinely applies thefundamentals.
If you read a transcript of whatthey do, they look perfect.
A lot of the transcripts, if youread them cold, you know,

(23:26):
without being in the court roomand watching the person, some of
them don't read too well, butsome of these great lawyers, I
mean they make more a betterimpression in front of the jury
with the way they speakspontaneously and off the cuff
than they do in a transcript.
They don't look perfect.
They might look disjointed, theymight be stream of consciousness
coming out periodically.

(23:47):
There might be all sorts of waysthat they impressed juries with
their case that don't comeacross so well in print.
So some of the best lawyersdon't look that great in a
transcript and some of themediocre lawyers look perfect.

Speaker 4 (24:05):
[inaudible]

Dr. Shepp (24:08):
speaking of transcripts and impressions, um,
I know many of Michael Jacksonfans talk about the difference
between the way Jackson isportrayed in the media even
currently and the way he wasportrayed after the trial, after
his not guilty verdicts and whatthe trial transcripts actually
reveal in 0.2.
I recall watching the verdictscome in and, and um, and as

(24:31):
anyone was in, in, in thecountry.
And it actually crossed theglobe really being interested in
what was happening in this veryhigh profile case.
But we would hear snippets fromthe media, um, on, on the news.
Everyone watched the news inthose days.
We didn't have the social mediathat we do now.
Um, but so we would hear alittle snips of snippets about
that and get an impression aboutwhat was happening in the
courtroom.
And it turns out it was oftennot really what was happening in

(24:53):
the courtroom.

Tom (24:54):
Well, first of all, um, my experience with the media in
that case for the most part wasdreadful.
Um, there were some veryseasoned and very ethical
professional journalists whocovered the case, but very few
of them in my opinion, there wasLinda Deutsch from associated
press, a total pro.
There was Mike Thai AB from NBCcomplete professional ethical.

(25:17):
There was Don Hobbs in the sand,Santa Barbara news press.
She was just the perfectprofessional.
Those three names come to mindand I want to make sure I don't
lump them into the rest of thegroup.
But by and large, the media wasatrocious.
The media was arrogant.
They were self serving.
You know, they wanted to seethis, the most famous man in the

(25:38):
world who took everything togreat Heights, dance, music,
choreography, uh, they wanted tosee him splatter because it made
a good story for them.
It would bring revenue andratings to them.
And you know, I had always beena court TV fan.
Court TV was on TV in thosedays.
It's now back.
Um, but I was always a court TVfan.

(25:59):
I love to turn on it.
It was 24 hours throughout the90s, you know, and that you
could watch, we wake up at twoin the morning and if I felt
like watching what a lawyer wasdoing and I could turn it on and
there was a lot of commentaryand uh, it, it really was to me,
a great resource.
But the turning point was theMichael Jackson case where they

(26:19):
appointed someone who was antiMichael Jackson who had a
history of being sued by him andshe claimed she had revealed,
she was the first journalistrevealed that he was a pedophile
when she worked for a TV show.
They assigned her to cover thecase, which I thought was
atrocious.
They should've had a neutralobjective experience lawyer
doing it, not someone with ahistory with Michael Jackson.

(26:42):
So, uh, I didn't think much ofher to begin with.
And I would come home from courtand we had a schedule where we'd
start around eight o'clock andbe out by I think one 30 and we
wouldn't have a long lunchbreak.
We would have 10 and 10 minutebreaks and 15 minute breaks.
So I would get backmid-afternoon to my condominium

(27:04):
and I would turn on the TV for alittle while to see what people
were saying.
And I would see the most biased,you know, slanted coverage.
And what happened was theprosecution would typically call
a witness.
It would say something veryscandalous and I would get up to
cross examine and the mediarepresentative would run out of
the courtroom to report thedirect examination and not even

(27:27):
watch the cross examination.
And I got to tell you, I wasable to demolish so many of
their witnesses andcross-examination.
I remember every day I wouldcome back saying, God, they're
just getting a drubbing in thiscase.
Um, but it wouldn't be reportedor it wouldn't be reported as
much as the salacious materialon direct examination was
reported.

(27:47):
So, um, I developed a very, verynegative view of the media
throughout that case.
And then the, during the week ofjury deliberation, the major
networks were showing the jailcell they expected him to go to
and talking about the routine hewould have when he had to get
up, what he would be served forbreakfast.
Uh, would he be on suicidewatch?
What would it be?

(28:08):
What would he be allowed toread?
How many visitors could he take?
I mean, they were showing thiseveryday of jury deliberation.
Like it was gospel.
I mean, it was just irritatingand infuriating to see that
level of biased, uh, journalismor if you want to even call it
journalism.
But that was a very negativeexperience for me.

Dr. Shepp (28:27):
Do you find that it varies case to case how the
media might portray a criminaldefendant?

Tom (28:34):
I think, I think it does.
Um, I haven't thought of thatquestion before.
Um, I think unfortunatelythere's something salacious
about seeing someone convictedand hold off the jail and, and
sent me away and, and come backand jail house orange or
jailhouse yellow with chainsaround them.

(28:54):
There's something salaciousabout that.
Um, I don't think the media,thanks very much about showing
innocent people.
People wrongfully charged,wrongfully convicted.
You'll see a few shows likethat.
You won't see very many[inaudible].
I mean, let's face it, the lastI checked, over 300 people had
been freed from life sentences,death sentences, enormously long

(29:19):
sentences through DNAtechnology.
I mean, that's over 300 peoplewhose lives and his family lives
were devastated by wrongfulconvictions.
Now think of the people whohaven't had DNA to test, who
were wrongfully convicted basedon faulty eye witness
identification.
Think of the people where therewas DNA, but it wasn't tested
for a variety of reasons.
So our system is the best systemin the, but it's far from

(29:42):
perfect and law.
Innocent people are destroyedand the people around them are
destroyed through wrongfulconviction.
So if the media does cover someof this, um, but I think in
general, my perception is themedia would rather just cover
people convicted and sent toprison and uh, look like they're

(30:02):
on the side of, uh, of, youknow, crime prevention, that
kind of thing.

Dr. Shepp (30:07):
We find ourselves in a new situation as well in
contemporary times where thingscan be said about a person who
is deceased and there's, atleast in California, there isn't
protection for that person'sreputation or character once
they've passed on.

Tom (30:21):
Well, I'm especially bothered by it because one of
the two accusers I spend a lotof time with and was so
impressed with his zeal to helpMichael Jackson in the trial.
And I'm talking about WadeRobson.
I spent time with him before thetrial.
I spent time with his mother,with his sister.
They were zealous supporters ofMichael Jackson.

(30:42):
They were adamant that nothingwrong had ever occurred.
And I was so impressed with WadeRobson, uh, in the way he
presented himself.
He was very likable.
He was intelligent.
Um, he was very articulate andvery adamant and forceful that I
was never improperly touched.
I was so impressed with themthat I made in my first witness
in the defense case.

(31:03):
And you know, I had to thinklong and hard about whether I
wanted to put on a defense casebecause I felt the cross
examination of prosecutionwitnesses had been so effective
that I felt 99.9% of criminaldefense lawyers in America would
have rested their case rightthere.
But the problem was I knew in myheart of hearts they wouldn't
get a conviction at that point,but I wasn't sure I would get

(31:24):
acquittals on every count and Ididn't want them retrying
Michael Jackson.
So I decided to put on a defensecase, which meant taking risks
because every time you call awitness, you've got to give the
prosecution a chance to crossexamination that witness and do
whatever they want to do.
So if you're going to put on adefense case and take the risks
involved, you want to startstrong and you want to end

(31:46):
strong.
I started with what I thoughtwas my strongest witness for the
defense, Wade Robson.
And I ended with one of thestrongest witnesses for the
defense, Chris Tucker, thecomedian.
And my second witness wasMacaulay Culkin who was very
powerful and said I was, he's myfriend.
He never improperly touched meat all.
But I started with Wade, who wasa terrific witness and

(32:06):
withstood, witheringcross-examination by a really
good prosecutor, uh, Ron zoneand one of the best prosecutors
I've ever seen.
Great.
Cross examiner, passionate, youknow, detailed, committed.
Uh, he couldn't but make WadeRobson budget inch.
So when years later whenMichael's dead and can't speak
out on his own behalf, suddenlymr Robson changes a story that's

(32:30):
very upsetting to me cause I'm adirect participant, direct
witness in what I'm talkingabout.
Um, plus I think it's a cheap tostart coming after the dead when
they can't speak up on their ownbehalf.
I have not seen the four hourdocumentary leaving Neverland
and I don't intend to see him.

Dr. Shepp (32:48):
I know you've spoken favorably about Mr.
Jackson is as your client andsaid that he is very likable and
that you um, you, I'm not sureif I could say you enjoyed
working with him.
I'm not sure if that's the rightphrase, but you found him to be
very likable.
I imagine though that there'stimes that you work with clients
that aren't as likable.

Tom (33:06):
Well, sure.
I mean it's a very stressfulperiod to begin with.
I mean the state or the federalgovernment are trying to take
away your freedom, trying to ina sense destroy your life and,
and that can impact all sorts ofpeople, children, cousins,
parents, you name it.
You know, families are involvedtoo.
So it's a stressful, ugly timeto begin with.

(33:30):
Um, and add to that the factthat some people are nicer than
other people and some people aremore stable than other people.
And you do sometimes representpeople who are not the nicest
individuals on the planet.
Uh, they don't particularlytrust lawyers, uh, given their
experiences and some of thethings they've heard, lawyers
aren't necessarily theirfavorite people and that's just

(33:51):
part of the business.

Dr. Shepp (33:53):
So how do you manage it when you might have a client
who is into antagonistic towardyou, even though you're doing
your best to assist them?

Tom (34:00):
I do my best to keep focused on what's important, not
let their individual frailtiesor poor habits or, you know,
poor behavior affect me.
I do my best not to, uh, let itget in the way.

Dr. Shepp (34:15):
And do you have clients that challenge you in
their fame?
So for example, a client who isa high profile client and brings
that sense of presence, theirfame into their conversations
with you.
Um, is that something that youhave found to be the case?

Tom (34:34):
[inaudible].
You do represent sometimespeople with big egos for sure.
Um, and you represent people whoare used to calling the shots in
their life.
They're used to telling theiragents they want this, their
managers, they want that.
Their lawyers who do real estateor business or tax or
entertainment, they'll tell themwhat they want.
They'll call the shots andsuddenly they're in a, in a

(34:56):
world they know nothing aboutand some realize they know
nothing about it and others wantto behave the same way and you
have to let them know this is aworld unlike any world you've
been in.
You know, things don't work thesame way they do and these other
legal specialties or in the restof your life, uh, as you've been
running it, you know, you betterlisten to me because a lot of
what goes on in the courtroom iscounterintuitive.

(35:19):
It goes against the grain ofwhat you've been taught.
It's not like these trialsyou've seen on television.
It's very different being inthere yourself when you're the
accused.
So you better let, uh, let thelawyer tell you what to do in
certain situations or you mayregret it.
Later on.
I had here just remind me, I hada murder years ago, was a woman
sitting in LA County jail, grewup in a poor neighborhood, had

(35:42):
no money.
Uh, she was charged withmurdering her ex husband coming
up from San Bernardino County toLos Angeles County and murdering
her ex husband.
And I got a call asking me if Iwould be willing to talk to her.
And I said I would and I agreeto represent it for free.
And I noticed in therelationship from time to time,

(36:03):
she seemed rather distressful.
Why are you helping me this way?
I don't think she was used toanyone helping her this way.
And we tried the case.
I was against one of the topprosecutors in Los Angeles, a
very highly respected andskilled and experienced
prosecutor.
And uh, at one point with thejury out of the room, she said,
your honor, I want to tell youall the things that mr Mesereau

(36:25):
is doing to me that aren'tright.
And she started, uh, out loud tolist things that I think some of
the people in the jail that toldher he should be doing.
You know, you've got a lot ofjailhouse geniuses who don't
know what they're doing butthink they do.
And I stopped her right away andsaid, stop that right now.
You're not helping yourself.
And she stopped.
And to make a long story short,she was acquitted and she still

(36:48):
calls me periodically, uh, thankme and hasn't forgotten.
This is, you know, that 20 yearsago.
But I mean, uh, people aresuspicious of lawyers.
And on top of that, I was doingsomething very generous to her
that she wasn't used to.
So she was suspicious of that.
You know, I've done my share ofpro bono work in my career.
I had another, uh, former gangmember charged with murder in

(37:11):
the Compton courthouse.
Uh, and a friend of a friendbegged me to help him.
He had no money.
I did.
And he got suspicious.
Why are you doing this for me?
What were you, he'd look at me,why are you doing this to me?
Why are you being so nice to me?
He didn't know what was going onand wondered one time that the
da had planted me, you know, Isaid, you know, and he was

(37:32):
acquitted of murder.
Um, and it was a, a very, veryugly gang shooting with a number
of eyewitnesses and a prosecutorwho had never lost a, a gang
homicide case.
He'd went over 70 of them.
And, uh, he realized I was, youknow, I met what I told him that
I really believe in justice andI, you know, was brought into

(37:54):
this case by a friend of afriend who I respect and that's
how I met you.
You know, and I'm here to do myvery best with you.
So, you know, people'sperceptions of lawyers are not
always the greatest.
And sometimes they're veryincorrect.
I may, in our public defendersget a very bad rap in the jails
and prisons that, you know, theycall them dump trucks, they call

(38:17):
them public pretenders.
Um, and some of our publicdefenders are the best criminal
defense lawyers in the country.
They're dedicated.
They're unsung heroes andheroines.
Uh, and they do a great job.
And, and much of the time theydo a great job, uh, with no
whatever, with no understandingwhatsoever with great suspicion

(38:40):
coming from the jails.
And I've seen them do such agood job and not be appreciated.
Um, but they will still, youknow, defend whoever they're
told to defend, regardless ofhow difficult the cases,
regardless of Ellen populartheir, their client may, it may
be regardless, so unpopular.
They may be.

(39:01):
Um, and there's the, they're theunsung heroes and heroines of
our justice system, the publicdefenders around the country.

Dr. Shepp (39:07):
I imagine you've seen different kinds of responses
among attorneys, your peers,those who handle it admirably
like you're describing and, andwork because of the passion they
might feel or the convictionthey might feel or, or doing the
right thing.
However they might describe it.
And those who, whose motives aremore about fame and glory.

(39:27):
And you've talked before aboutthe perils of fame.

Tom (39:30):
Well, I think fame is an addiction.
I think it's an a, it's a very,very addictive, powerful drug.
And you just give a tiny bit offame to your average human being
and the act like differentpeople all of a sudden.
And that really applies tolawyers.
Lawyers get in a high profilecase and a couple of cameras
around them, a couple ofreporters, one comments, and you

(39:51):
see a glow in their eye and yousee a different demeanor and
suddenly they start beginning tothink it's all about them.
It's not all about them.
It's about the client.
And fame is a very, very wellfame can kill.
We all know that.
I mean, the last I checked, thethree most lucrative dead
celebrities estates were numberone.
Michael Jackson, you know, deadat 50 number two, Elvis Presley

(40:15):
dead at 42 and number three,Marilyn Monroe dead at 36 so
fame can kill you.
Fame will make you think thingsabout yourself that are not
realistic.
Fame, well get you treatmentthat no one else would give any
that no one else would get.
I mean, look at poor MichaelJackson being given propofol to

(40:35):
help sleep.
If you are, I had an insomniaproblem and went to a physician,
they'd never give us propofolfor that purpose.
A look at the medications thatwere given to Elvis Presley and
I perhaps Marilyn Monroe, I'mnot quite sure.
Um, some people think that was asuicide.
I may have been an overdose.
But nevertheless, celebritiesare treated differently because

(40:59):
they're celebrities andsometimes they're treated
differently in ways that arefatal.
And all of a sudden everybodywants to be your friend and
everybody's got something youneed and everybody wants to
remind you of what they did foryou when you were coming up.
So you'll owe them something andeverybody wants a loan and
everybody wants this favor.
And if you give them a loan,they resent you.
And if you don't give them aloan, they resent you.
I mean, I can talk about fameforever.

(41:22):
It's a very dangerous, addictivecommodity.
And you've gotta be very carefulwith the lawyers who've had a
fair amount of fame because theymay think it's all about them
and not you, the client.

Dr. Shepp (41:34):
Have you ever witnessed, and you wouldn't have
to say who of course, but haveyou ever witnessed an attorney
who was addicted to their ownfame and then you've seen that
addiction costs their client?

Tom (41:46):
Well, it would be my opinion that it cost the client.
Oh yes, of course.
Of course.
I've seen things that are veryunacceptable, very disturbing to
me as a a, as a criminal defenseattorney.
I've seen lawyers clearly thinkit's all about them and get
completely enamored by themedia.
I've even heard of one who wasentertaining the media every,
you know, most nights during avery high profile trial.

(42:08):
And even the media people whotold me about it thought it was
foolish, but they were going totake advantage of it if they
could.
And the media know that lawyerscan be manipulated and the
lawyers are suckers for fame.
So, you know, I've had mediarepresentatives, you know,
suggest to me they could do allsorts of things if I would help
them in a certain way.
And, uh, you know, for mostpeople, I think what their

(42:30):
approach probably would'veworked.
It didn't with me.
[inaudible]

Dr. Shepp (42:33):
well, your, your conviction is very clear, the
way that you're true to your ownprinciples and, and your own
approach.
And I know that you, youdeveloped that over over a
number of years of yourexperience.
Just the willingness to takerisks, the willingness to be
unconventional.
You talk in many of yourwritings about the fact that you
approach things sometimes veryunconventionally.

Tom (42:55):
Yes.
And I think that the product oftaking my profession very
seriously, and as I said before,at one point early in my career,
I said, why are some lawyersbetter than others?
You know, we all go to lawschool, we all pass the bar
exam, we all take trial practiceclasses, we all take refresher
classes that we're required totake, uh, to continue to be a

(43:17):
practicing lawyer.
We all go to seminars.
Um, why are some better thanothers?
What is it?
What made the difference?
And I would read biographies.
I would read autobiographies.
I would go down to watch lawyerstry cases.
I would look at video tapes andaudio tapes in the old days, you
know, now of course it's on theinternet, but, um, I would do

(43:38):
whatever I could define somekernel of something that may be
is people different or better.
And I decided that, uh, youknow, knowing yourself, number
one was critical.
Uh, experience was critical.
But trying to find where theheart of a case was and what

(43:59):
story really resonates from thefacts and taking risks to get
witnesses to help you, uh, orconversely to get witnesses to
hurt the other side, uh, that itwas an art, not a science, that
you'll never completely masterit.
You're always learning if you'relucky.
Uh, and I looked at some of thelawyers who were considered

(44:20):
good, but maybe not that great.
And a lot of them basically stoplearning.
They reached a level ofexperience and success that made
them think, you know, my over,you know, I'll teach you how to
do it.
An arrogance and narcissism that, uh, in my opinion, stop their
growth and didn't help them.

Dr. Shepp (44:38):
So a willingness to learn is important.
Yeah,

Tom (44:41):
very important.
And a willingness to try hardcases.
Cause there are a lot of lawyersout there who handpicked their
cases.
They're afraid to lose, they'reafraid of loss, will Turners the
reputation or will hurt theirsales pitch, uh, to unsuspecting
clients.
And I've always said try thehardest cases.
Try them your whole career.

(45:01):
Don't shy away from anything,you know, every case teaches you
something new and do your bestunder the worst circumstances
and make our system work.

Speaker 5 (45:16):
[inaudible] [inaudible][inaudible]
[inaudible]

Dr. Shepp (45:21):
you've said the same thing about adverse experiences
and situations in the courtroomto not shy away from those, but,
but to really face those headon,

Tom (45:30):
I think a, you should embrace the things that are most
difficult and find a way out ofthem that helps your client and
you know, helps you help yourclient.
Um, you know, we all know as youwalk through life, you know,
there's the, the half full glassexample, you know, the optimist
looks at, uh, how much is in theglass and the pessimist looks at

(45:53):
how much is not in the glass.
Well that can apply to any toughexperience in the courtroom.
You know, a, you try to findwhat you can that will help your
client and help you get the jobdone.

Dr. Shepp (46:05):
Are there days when you're not at optimist?
Are there days when, when you,you feel as though you, you
don't have what it takes to, toface the courtroom that day?
Or, or would you say that youjust trust yourself enough?
Um, and you're on self efficacyenough to make it through?

Tom (46:23):
There are tough days because if you're a caring
person, if you're a sensitiveperson, you're going to have ups
and downs.
You're gonna have good days andtough days and you just can't
overreact to them because thestory hasn't been completed yet.
But I think that any reallyconscious caring lawyer has a

(46:44):
sensitive level, uh, emotionallythat will insist that you have
some bad days.
There are callous lawyers outthere.
They don't care.
They're burned out on jails.
They're burned out on violenceand blood and guts and, you
know, difficult clients.
They're burned out.
They're just making a living.

(47:05):
So they tune out to some of theareas I'm talking about so they
don't get bothered as much.
Um, but if you really care, youare going to toss and turn.
Should I have put that witnesson?
Should I put my client on?
Uh, there are times you put aclient on what you don't have to
in a criminal case and theclient will have some bad

(47:28):
moments and heart[inaudible] asyou're watching drop into your
stomach.
You know, you're just trying tokeep a, a, a very even keel
persona and you're trying not tolook like anything's bothering
you.
But I mean, inside your, you're,you're doing somersaults and
after a loss, you know, if youcare, you, you have what I call
the dark night of the soul.
You toss and turn.

(47:48):
But you know, should I have donethis?
Should I have done that?
Um, but you have to have toughmoments if you care.
I think

Dr. Shepp (47:57):
I'm sure people who are listening can really relate
to what you just describedbecause it's part of the human
condition.
To have those moments whereyou've experienced things from
on a spectrum, from regret tojust second guessing or
questioning yourself to justthe, the, um, inner turmoil of

(48:17):
things that, that arechallenging and sometimes don't
go your way.

Tom (48:21):
Well, I mean that, that, that's, that's just true.
I mean, and, and sometimes youhave to understand that what you
think is a victory, uh, may ormay not be a victory.
And what do you think is a lossbeing or not be a loss?
I mean, it may be that you walkinto a courtroom defending a
murder case where you're hopingyou can get a manslaughter
conviction cause the facts areso bad.

(48:43):
Um, and you come out with amanslaughter conviction and you,
you feel very, very good aboutit.
I mean, um, uh, you'd like toget an acquittal on every count,
but sometimes getting convictedof a lesser offense is still
given all in all the facts andgiven the situation is actually

(49:04):
a win.

Dr. Shepp (49:06):
It's interesting because you bring up the lesser
offenses.
Uh, and I remember in the, inthe Jackson trial, um, something
occurred in, in that trial whichgave the opportunity to the jury
to find Michael Jackson guiltyof lesser offenses.
This, I don't think even wassomething that was present when
the trial began.
I think that was something thatoccurred as the trial

(49:26):
progressed.

Tom (49:27):
That's true.
The judge Michael Jackson wasindicted by a grand jury on 10
felony counts.
That's the way we began thetrial.
When the judge gave the chargeto the jury, which is a fancy
way of saying he told them whattheir to consider.
He on his own volition, he andhis own motion decided to give
them the option of convicting onfor lesser included misdemeanor

(49:51):
counts.
What the judge said to the jurywas, if on any of those last
four accounts, you find Mr.
Jackson not guilty, you maystill convict on a what is
called a lesser includedmisdemeanor count, which is
giving alcohol to an underageperson and they came back with
14 not guilty.

(50:11):
He's not guilty on the 10indicted felony counts and not
guilty on the four lesserincluded misdemeanor counts of
giving alcohol to an underageperson.
We walked into that trial.
Nobody gave us a chance.
In fact, some of my closefriends warned me, don't take
the case.
They said it's going to be themost watched case in, in
American history.

(50:32):
Um, it's gonna be watched bymillions of Jackson fans around
the world.
A, you can't win it.
Um, everywhere you go for therest of your life, you're going
to be the one who sent MichaelJackson to prison.
And I know some lawyers whostrongly urge me not to take it
and said they wouldn't take it.

Dr. Shepp (50:51):
How did that pressure get to you?

Tom (50:54):
Not really.
I thought about it and that'snot who I am.
I'm a criminal defense lawyer.
Listen, there are lawyers who,if they want a case like that
would be very careful what othertrials they did, um, because
they'd want to retain this auraof invincibility.
And I don't do that either.
You know, I'm a criminal defenselawyer.
I try challenging cases.

(51:15):
I try cases that people warnedme not to take this as who I am,
take it or leave it.
I'm proud I'm not a cherrypicker.
Like some famous lawyers I knowwho stick their toe in the water
to see what the temperature is,to see if they really think they
can win it.
I'm proud to not, uh, notoperate that way.

Dr. Shepp (51:36):
Well, it's clear that you know yourself very well,
which I'm sure helps you in yourwork.
As I said, when we met last, Ireally could talk to you for
hours and hours because it'sfascinating.
It really is.
But I don't want to keep youmuch longer.
I'm, I'm just gonna switch gearsif you don't mind and ask you
some questions that I ask ofeveryone that I speak to.
Uh, so we'll jump into that ifthat's okay.

(51:58):
So, Tom, what in life are youstill curious about?

Tom (52:02):
I'm curious about all kinds of things.
I mean, I'm curious about a, myfamily that I love dearly.
I'm curious about myself.
Uh, I feel like you're alwayslearning and always, you know,
developing if you're lucky.
I'm curious about, uh, life ingeneral.
Our justice system will alwaysbe of curiosity to me because

(52:24):
it's always changing.
It's always trying to evolveinto something better, but it
never is perfect.
Um, I'm curious about people andhow complex they are and how
they change with the times andhow what we prioritize seems to
change with the times,particularly the age of social
media, which I don't know thatmuch about, and I'm not a social

(52:45):
media person, but the impact onour youth, the impact on our
society or civilization isfascinating to, uh, to try and
work through.

Dr. Shepp (52:54):
And it impacts the courtroom, I would imagine too.

Tom (52:57):
Well, yes, because you're always worried about what's
going to impact a jury.
And, and even though judges telljurors or potential jurors not
to look at social media aboutthe case, you don't know if
they're really doing that ornot.

Dr. Shepp (53:09):
Oh.
Which is more distracting to youin, in the courtroom or as you
do your work praise orcriticism?

Tom (53:15):
Well, I'd rather take the criticism than the praise.
Praise doesn't teach me verymuch.
Uh, we all like it.
We all smile a little bit whensomeone praises us.
Um, uh, but it doesn't teach youvery much.
I like, I love to talk to jurorsafter trial and, uh, whether I
win it or lose it, I always liketo ask them, did I do anything

(53:36):
that upsets you or irritatedyou?
Do you use, can you think of anyarea where I can improve?
I always do that.
I've noticed that a lawyer isjust loved to get praised out.
You know, when a trial's over byjurors and if there were smart,
they say, well, tell mesomewhere I can improve
anything.
I do irritate you.
Did the way I treated anywitness, upset you and find out
whatever you can.

Dr. Shepp (53:56):
You're willing to make yourself vulnerable enough
to receive criticism.
You're, you're soliciting it inorder to make yourself better at
what you do.

Tom (54:06):
I think that's a, I think that's a better way to live.
Period.
Let alone just, you know, how totry a case.
I think we should always belooking for constructive
criticism to help us evolve aspeople and, and do a better job
with, uh, with our short lives.
A certain level of success, uh,gives people a narcissistic, you
know, shell and can actuallyshut them out of constructive

(54:29):
criticism, you know, helpfulsuggestions how to improve
themselves and I hopefully don'tlive that way.

Dr. Shepp (54:36):
Tom, as a, as a courtroom attorney, you
obviously prepare for everytrial, which we've spoken a
little bit about and yet theunexpected can happen.
Is there a time when somethingunexpected has happened to you
and you felt like it threw youoff?
Like it, it really, um, set someof your progress aside.

Tom (54:52):
Part of being a trial lawyer is to be prepared for the
unknown, for the unexpectedwitnesses you thought would
collaborate.
You end up helping you.
What is you, you thought wouldhelp you end up collaborating?
You?
Um, the unexpected is acontinuum in trials and you
don't really know who thosejurors are.
You know, you, you, you, you seethem for the first time in a

(55:15):
courtroom setting, you get alittle information about their
background.
Um, you, you're able to questionthem a little bit depending on
what courtroom you're in.
Some federal courtrooms, judgeswon't let you question them at
all.
They will do the questioning.
But nevertheless, uh, you havethese people up there who you
don't really know and who maynot even know who they are
themselves.

(55:35):
I mean, so you're dealing withall this uncertainty.
You don't know what's gonnaresonate with them.
You don't know who's going totake control in the jury room,
who's going to have more stayingpower, who's going to be more
locked into their positions.
And, and all of this isuncertain.
It's unknown.
Um, the only thing that'scertain is uncertainty as you

(55:59):
walk into a trial.
So, um, you have to be ready forthat.
Sometimes you react better to itsome days than other days.
Um, but I've had witnesses shockme with, um, with things they
said and things they did.
Um, and that's just part of thegame.
Yeah.

Dr. Shepp (56:19):
So you control what's controllable.
And

Tom (56:22):
you do your best.
You do your best.

Dr. Shepp (56:24):
You're taught how to control situations in the
courtroom as best you can.
Um, but again, you don't knowhow any of this is impacting
jurors.
If you try to restrict a witnessand control them and don't let
them go off on tangents, a jurymight say, that person's tricky.
They're just manipulating thejuror.
We want to hear everything.

(56:44):
We want to hear everything theyhave to say.
You just don't know how thatwill impact.
If you object too much, youdon't know if some jurors will
say, that person's a trickster,that person's a technician.
You know, they're trying toblock the truth.
You just don't know you do yourbest.
Uh, in the situation you're in,what is one comment that still
stands out to you because of itsimpact, whether that's good,

(57:05):
bad, or for whatever reason?

Tom (57:07):
Well, I tried a very ugly death penalty case about
probably 18 years ago, I think,uh, in the state of Alabama.
I did it pro bono and my clientwas a white man who had been on
Alabama's death row for sixyears.
He had been convicted of adouble homicide.
Um, two young men wereinnocently just shot to death in

(57:30):
a park and there was evidence ofdrug use and, and devil worship
and other things, and the juryconvicted them and sent them to
death row.
The conviction was reversed on apure technicality and it came
back for a retrial and I wasasked if I would help defend
them and I said I would.
And uh, it looked like anextremely difficult case.

(57:53):
Uh, just on paper say that hehad testified in the first trial
that he was using thesedifferent drugs.
Uh, any rate, uh, I agreed todefend them.
Um, part of our defense was thatone of the prosecution's main
witnesses was actually the onewho did the murders.
And he had been a friend of ourclient.

(58:14):
He had been a main witnessagainst him in the first trial.
Um, saying that basically ourclient had admitted doing all of
this to them and told him whathappened.
So I'm cross examining thisperson on the stand and he
doesn't realize what I'm doing,but I'm asking him very detailed
questions about the crime sceneand he claimed that everything

(58:38):
he knew he had learned from theclient.
So I'm asking him about thedistance between this factor and
that factor.
I'm asking him to describe howthis body was positioned and
asking him to describe howanother body was positioned.
They asked him about shellcasings.
Were they on the ground?
Where were they?
And he was answering in precisedetail all these questions and

(59:01):
at one point, and he didn'trealize what I was showing the
jury was that he didn't learnthis just from being told, you
know, you can't remember thisfrom just, you know, having a
normal, normal conversation witha friend.
So at in Alabama the courtspermit what are called speaking
objections.

(59:22):
And a speaking objection meansyou object and you give the
reason for your objection infront of the jury.
In most States like California,you can object, but you can only
give a very abbreviateddescription of what the
objection is.
Otherwise you have to do it atsidebar outside the presence of
the jury, you know, uh, in otherwords, you could say, objection,
relevance in California, but ifthere's any more to discuss, you

(59:47):
say, your honor, may weapproach?
And then you discuss outside thepresence or hearing of the jury
why you're thinking it'sirrelevant.
But in Alabama they havespeaking objections right in
front of the jury.
So at one point I asked thisperson, I switched gears and
said to him, isn't it true thaton one occasion you

(01:00:07):
particularly, you took a handgun and put it to a baby's head?
And the prosecutor jumped up andsaid, objection, relevance.
And the judge said to me infront of the jury, what's the
relevance, mr misery Allen?
I said, your honor, therelevance is, and I pointed to
the witness, that's the killer.
And he had an expression on hisface, which was almost, he was

(01:00:29):
almost agreeing with me.
His head sort of went up andlooked like it was going up and
down and he was smiling.
And I think that may have beenthe key moment in the case.
My client was acquitted.
Uh, my co counsel says it wasthe most Perry Mason like moment
he's ever seen in a, a in acriminal courtroom.
And he does lots of capitalmurder cases in Alabama.
He's, he's the best Capitoldefender in, in city of

(01:00:52):
Birmingham.
But that was where someonedidn't say something, but their
demeanor and their reaction inmy opinion spoke volumes.
And of course in our closingarguments, we talked a lot about
that.

Dr. Shepp (01:01:05):
That really is a Perry Mason moment for sure.
Yes, yes.
My goodness.
Wow.
And I know you had some of thosemoments in the Michael Jackson
case as well, which, um, wespoke about but didn't actually
make it onto the recordingbecause of my recorder last time
where you were questioning oneof the main accusers, um, if a

(01:01:26):
member of the, of the family ofone of the main accusers about
the pornography that he hadalleged that Michael Jackson had
shown him and it turned out,I'll let you explain it.
[inaudible]

Tom (01:01:36):
well, that, that, that was the brother of the primary
accuser who claimed he had seenhis brother being molested.
And the both of the brothers hadclaimed that Michael Jackson was
showing them pornography.
And the prosecution's theory wasthat this was designed to
condition them, uh, to bemolested.

(01:01:59):
Um, so the prosecution hadintroduced into evidence a lot
of pornography, but it washeterosexual pornography was
Playboy and penthouse and thingslike that.
Uh, they introduced a edition ofPlayboy that this witness said

(01:02:20):
Michael Jackson had shown him,

Speaker 4 (01:02:24):
um,[inaudible],

Tom (01:02:25):
you know, the, the word is grooming the, basically the
pressing was saying this waspart of the grooming process to
prepare these children to bemolested.
So I got up on cross examinationand said to him, you know, words
to the effect that I rememberexactly what the question was
that you're sure he showed youthis magazine?
And he said, absolutely.

(01:02:45):
And then I proved that themagazine wasn't even published
until after they had, the familyhad left Neverland.
And that was a, a good momentfor us.
But the prosecution kept showingto the jury one naked picture of
naked women after another.
And I was thinking to myself, dothey really think this is
helping?
And I don't think it did.
And I think the verdict showedit didn't.

Dr. Shepp (01:03:07):
So this is a different kind of question now
on the, on the heels of thatone, but, but how do you move on
from failure?

Tom (01:03:14):
You, uh, you're depressed for awhile, you're down, uh,
you're upset, but you realizeit's part of your business and
it's part of your profession.
And your, I say if you care, ifyou're sensitive of it, it, it
sticks to you for a littlewhile, but then you move on and
you bounce back.
Like we all have to do in lifein many different situations.

Dr. Shepp (01:03:40):
Have you ever had what you would say was a
transformative moment in yourwork and if so, what was it?

Tom (01:03:48):
A transformative moment in my work?

Speaker 4 (01:03:53):
Um, well,

Tom (01:03:59):
you know, I w when I was coming up I did a lot of low pay
and pro bono cases, um, whichI'm very proud of and I still do
a pro bono murder case inAlabama every year.
Um, I have a small free legalclinic where we twice a month at
a African American church.
We counsel people, lawyers andlaw students and volunteers,

(01:04:24):
paralegals donate their time.
I'm very proud of this kind ofwork.
I, I, I marched with a women ofWatts every year for the last 16
years, 17 years, uh, againstgang violence, through the
projects with the children totry and help the situation as
best I can.

Speaker 4 (01:04:41):
Um,[inaudible]

Tom (01:04:42):
these I often tell lawyers cause cause we live in such a
society to me is becoming moregreedy.
The cost of living is high, thecost of education is high.
The cost of housing isimpossible.
A young people come out ofschool feeling like they're,
they've got a mortgage without ahouse, you know.

(01:05:04):
And in a situation like this totell people they should do
something pro bono or charitableis often falls on deaf ears.
Um, but I always tell people,you're going to get more out of
it than the people you hell.
You watch what it does for yourspirit and your soul.
There are so many unhappy,unhappy lawyers who would feel

(01:05:24):
better if they did somethinglike this.
But I took a case in 1995 or 96I represented a former city
council woman in Compton who hadbeen indicted by a federal grand
jury for various counts ofcorruption.
And they had that the FBI hadinfiltrated her life in very

(01:05:49):
unsavory ways.
They had an informant, she wasAfrican American.
They picked an African Americanman who was a convicted felon
who was working with him, hadhim approach her with flowers in
her office.
Uh, he gave her a card saying hewas a success, was essentially
presented himself as asuccessful businessman who would
get her involved in the company.
Took trap trip, traveled toMexico with her.

(01:06:13):
Uh, I thought it was veryunsavory what they did and they
taped her for over a year,allegedly taking bribes and they
admitted that it took them abouta year to get her to take one,
which I thought was unfair, butthen they tape, they tape
recorded her for another year,you know, in their minds taking
improper payments.

(01:06:33):
I took the case pro bono.
There were about over 600 tapes,audio and video in the case,
massive amount of documents.
Um, and a one point I, it was aSaturday night, I was in my
office at the century city justweary from listening to tapes

(01:06:54):
and I heard this tape andsomething sounded off and there
was clanking in the background.
There was discussion about NotreDame football and I realized
that two FBI agents and theirinformant were waiting for her
to arrive for allegedly thefirst payment.

(01:07:16):
And the informant says words tothe effect, they are greedy.
Every black one's coming fromeverywhere.
Let's put her on ice and getanother one.
And I was appalled by thisdiscussion and it was clear to
me they were accidentally tapingthemselves.
Now, I had been giventranscripts prepared by the FBI

(01:07:39):
of these conversations.
The government had already triedthe mayor in the same
investigation.
They had tapes of him, he had,he had resources.
So he hired private counsel whoclearly didn't just listen to
the tapes, they read the FBItranscripts.
I looked at the FBI transcriptand it left out this stuff.
So I made a motion to dismissthe indictment for a selective

(01:08:04):
prosecution based on race andmentioned that a FBI agents and
the informant had a discussionand filed a motion and the
government was just indignant.
And the prosecutor was a verygood prosecutor, said he had
talked to the agents and theyhad done this.
And then I just pull this tapeout of my pocket and said, why

(01:08:26):
don't we listen to this?
And it was a pretty dramaticmoment.
A, they were horriblyembarrassed.
The judge would not dismiss thecase, but, um, she was not
impressed with their behavior.
But I say she wouldn't dismissthe case.
It was a moment, you know, a lotof people said to me, why are
you doing this case?
She's been on the news.
They've showed these tapes withher taking money.

(01:08:48):
And I said, look, you know, um,their behavior was deplorable.
Putting this man in her life tobecome her lover, to travel to
Mexico.
Whether he became her, one ofher campaign managers.
I said, this is absolutely, youknow, beyond the pale.
Then I found another tape wherethey were talking to a former
mayor who was African American.

(01:09:10):
They were talking about offeringhim a white blonde woman in a
hotel.
And of course he doesn't knowhe's being taped or set up.
And I just thought this was veryunsavory behavior even though
she was convicted, but she wasacquitted of a lot of accounts,
which I'm very upset thegovernment tremendously and she
got a very minimal sentencebelow, way below what they
wanted.
I felt very good about exposingthis in the way I did.

(01:09:34):
And this is another example Ihope of what criminal defense
lawyers do.
We make them think twice aboutbending the rules.
When I say them, I meangovernment, prosecutors, FBI
agents, police, whatever agencyis working with the prosecution.
We call them to task when theydo things that are improper, we

(01:09:57):
may not totally win the case,but we went a lot for Liberty
and for freedom for all of uswhen we expose this kind of
stuff.
So you say transformative.
That was a, something I was veryproud of.
It burned a hole in my bankaccount.
I will still tell you that

Speaker 1 (01:10:15):
it transformed more than one aspect of your life.
Well, finally, Tom in, in brief,what have you learned about
yourself from your particularwork as a trial attorney?

Tom (01:10:28):
I think I've learned that I can be effective in this
particular setting.
I think I've learned that Icombine, I hope a certain level
of toughness with compassion andempathy and kindness.
Um, that works, you know, um,[inaudible] I certainly have

(01:10:50):
learned that, uh, we live in avery difficult society where
greed and callousness towardsothers is alive and well.
And you know, the late ClarenceDarrow, one of my heroes, uh,
who was one of the greatesttrial lawyers in American
history, tried very difficultcases in very difficult settings
and saw the worst of society andsaw the worst of government

(01:11:14):
oppression and misuse of power.
And he could be fierce in thecourt room and snide and
sarcastic and going after theother side.
But I think people also whowatched him knew there was a
compassion and a kindness.
And a humanity to him that yourarely saw.
I would like to think that Ihave an empathy and the
compassion that that comes out.

(01:11:37):
Uh, I think it's a strength, nota weakness.
I think there's a misnomer abouttough lawyers.
Tough lawyers sometimes are theworst and least effective
lawyers and sometimes decent,honorable lawyers who are human
and not perfect are moreeffective.
Um, I think I've learned thatI'm compassionate and kind and
that that can be a strength.

(01:11:58):
I hope.

Speaker 1 (01:12:00):
Well you very kind to spend your time meeting with me
and I have learned a lot fromyou, so I really appreciate you
taking the time to chat.

Tom (01:12:06):
Well, it's been my pleasure and I'm very much appreciate
that you ask great questions andthank you for thinking of me.
Thank you so much, Tom.
Thank you.

Speaker 6 (01:12:15):
Okay,

Speaker 1 (01:12:25):
this has been managed the moment with dr Shep.

Speaker 6 (01:12:28):
Okay.

Speaker 1 (01:12:28):
Life is a collection of moments.
It's how you manage the momentsthat makes the difference.
Wow.
My sincere thanks again to TomMesereau for joining me for this
conversation and thank you forlistening.
You can subscribe to the managethe moment podcast for free just
by clicking the subscribe buttonwherever you're listening to
this podcast, and then you'll besure to get the newest episodes

(01:12:48):
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
moments with us.
Until next time.
Right.