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Andrew Eisbrouch

Andrew Eisbrouch is the COO & General Counsel at Mediaite and the Law & Crime Network. He also co-host...

Jesse Weber

Jesse Cord Weber is a New York attorney. After graduating with a B.A. in Political Science from the University...

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Joe Patrice

Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a litigator at...

Elie Mystal

Elie Mystal is the Managing Editor of Above the Law Redline and the Editor-At-Large of Breaking Media. He’s appeared...

Before the Kavanaugh nomination took its decidedly darker turn, the nominee spoke tentatively but positively of opening up the courts to cameras and same-day audio. The House has also put forward a bill to expand this transparency. Joe and Elie talk to Andrew Eisbrouch and Jesse Weber of the Guys Who Law podcast and the Law & Crime network. Law & Crime is dedicated to broadcasting live courtroom telecasts to inform the public about the judicial system, so we wanted to know their thoughts on transparency.

Transcript

Above the Law – Thinking Like a Lawyer

Transparency In The Courts

09/18/2018

[Music]

Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

[Music]

Joe Patrice: Hello, welcome back to another episode of Thinking Like A Lawyer. I am your host always joining host Joe Patrice from Above the Law, and with me is always is my, slightly less charming, co-host, Elie Mystal.

Elie Mystal: I am so incredibly pissed off today.

Joe Patrice: Oh, are you?

Elie Mystal: I just I don’t even going to start with the normal — look, today, we just found out that Dianne Feinstein has been sitting on a letter for two weeks. We don’t know — or maybe longer, we don’t know how long about Brett Kavanaugh that involves some kind of allegation of sexual misconduct that happened between him and a woman when they were both in high school. I guess, you can call them a girl and a boy when they were both in high school.

We don’t know much about the details, although, I will say that you don’t generally refer something to the FBI if he was pulling her goddamn pigtails, right? And despite, this is now like the fifth thing that’s happened with Kavanaugh that Republicans and the Federal Society refused to take a stand on and put a stop to this nomination.

Kavanaugh’s answers for this kind of crap have always have so far been completely ridiculous. He’s got issues about gambling. He says, I play dice games for no money.

Joe Patrice: Yeah, that’s ridiculous.

Elie Mystal: He says he’s got issues about his debts. He says, I like Nationals tickets.

Joe Patrice: Nobody likes the Nationals.

Elie Mystal: He’s got issues about whether or not he’s been truthful about Alex Kozinski, he says, I didn’t hear it, I didn’t see it, I won’t see nothing, oh, now word of it like, he’s singing the goddamn whoo.

Joe Patrice: Yeah, don’t sing. Yeah — no, I mean in this instance, we don’t know that much about this letter. It’s been secret, apparently she’s been sitting on it for a while, one would think of it was something serious enough to have gone to the FBI should have been sent there earlier.

Maybe it’s because this is nothing. I don’t know. The real issue is, obviously the votes should be suspended at this point, at least for a couple of weeks in order to allow the FBI to do an expedited investigation, but it seems as though nobody is doing that, and that for me is the real problem whether or not anything actually happened which it may or may not have and we’ll find out in due course.

But, at this point, the mere allegation of it should at least, for prudence’s sake slow things down, and it’s the fact that it’s not slowing things down that’s more troublesome to me.

Elie Mystal: You like watching movies, right? We’ll see like television shows or movies where they run out this plotline, where like the guy cheats on his wife and the wife stands by him at which point the guy is now jealous and suspicious of the wife cheating. Like, it’s because it’s all on the guy’s creepy little freaking head.

This is what’s happening with the Republican Party. They destroyed the Supreme Court nomination process, right, by holding up a legitimate nomination of Merrick Garland for over a year. They destroyed that process. Having destroyed it, now they are trying to rush through Kavanaugh because they are so afraid that if they don’t rush through Kavanaugh and they lose the midterms, which they freaking should, then the Democrats are going to play the same game and not give them their nominee.

They are rushing through a nominee with serious credibility and integrity issues because they are afraid, the Democrats are going to do what the Republicans already did with Merrick Garland.

Joe Patrice: Okay.

Elie Mystal: And stop screaming.

Joe Patrice: Yeah — no, I think that would be for the best. Yeah, I mean, sure, okay, like the issue for me is still much more about the ignorance of process like this is something that should slow down the process, and it seems as though that isn’t rising to that occasion that seems more to be a concern.

Elie Mystal: That was grind your gears, brought to you by Rolex.

Joe Patrice: Yes, it is not brought to you by Rolex in any shape or form, nor are we associated with Rolex and/or any of its subsidiaries.

Elie Mystal: We’d like to, I don’t have a watch.

Joe Patrice: Yeah, who wears watches anymore? Oh, you have a watch. Yeah — no, like — I like watches, I used to wear them all the time but then like my phone took over and now I don’t even think about it.

Elie Mystal: You have to identify the year or else it sounds like I was just lying.

Joe Patrice: Oh yeah, no, there are other people in the room. In particular, I will jump over that and introduce our guests because we’re joined by some other podcasters today. So, introduce yourselves, Andrew.

Andrew Eisbrouch: Hey guys. Thanks for having us. I’m Andrew Eisbrouch, we are part of the podcast Guys Who Law. I am with my co-host Jesse Weber.

Jesse Weber: Hey there everybody. I realized that I need to project a lot more on our podcast if I’ve learned anything in this first five minutes.

Joe Patrice: No, you know.

Andrew Eisbrouch: And I actually got to say something, so I wore this watch actually because of Elie and we’ve met before and —

Joe Patrice: Ooh.

Elie Mystal: Ooh.

Andrew Eisbrouch: So I’m wearing an Apple watch right now.

Elie Mystal: Is this going to end up at the FBI?

(00:05:01)

Andrew Eisbrouch: It might actually, yeah, I was in a Barbary competition in law school and you were hosting it and the prize for winning the competition was this Apple watch, so you are the reason why I have this.

Elie Mystal: Oh my goodness. Well, no, you are the reason because you won it.

Andrew Eisbrouch: Yeah, I mean, I’m namely the reason but the secondary reason.

Joe Patrice: Yeah, I had you introduce yourself because at the last second I blanked on the title of the podcast whether it was Guys Who Law or Law Guys, and I was like oh, no, no, I’ve forgotten.

Jesse Weber: You know what’s funny, we wanted to do Law Boys, we liked that one, but somebody took it, somebody created a law firm in the Midwest called Law Boys, first of all.

Joe Patrice: Great name.

Jesse Weber: I would totally hire them, until we couldn’t use it, but I thought Law Boys would have been — no Legal Boys, it was Legal Boys.

Andrew Eisbrouch: Yeah, I mean, that’s what happens when there are lawyers who are thinking about the trademark implications. I wish we just like didn’t care about it at all and went with it, but we didn’t want to get in trouble.

Joe Patrice: Yeah, so one of the things they do is this podcast which you should listen to. They cover kind of the week in law sort of key stories that are going on in the legal sphere. So, that’s one thing but they also work, more Jesse I think, working with a network that kind of shows court. It’s for those of us who are old, it’s kind of like the O.J. trial but more.

Jesse Weber: Yeah, it’s just like Court TV was back in the day. Andrew and I both worked for Dan Abrams, who’s the Chief Legal Affairs Correspondent or Anchor at ABC News and he had this great idea because he used to work at Court TV, why not bring it back but for digital.

There’s a whole new generation and it’d be really good to get cameras inside the courtroom. So he created what was back in the day Law News and then through a partnership with A&E, it became the Law & Crime Network. I host the show every day in the morning 9 to 12, and we cover live trials all across the country, which is pretty unique, and we’re going to hopefully talk more about what that’s like.

Elie Mystal: Do you do commentary with the trials or is it up to the viewer to like actually be able to follow what’s going on?

Jesse Weber: Oh, the commentary is the most important part. You could have a trial but if you don’t bring it in with a commentary about what’s actually happening and we have guests on, so we get that analysis bit by bit. What was that witness talking about, what was this about, why is this important, you think this guy is going to be found guilty?

We talk about jurors, we bring in jury consultants, attorneys, forensic people, all different kinds of individuals and professionals because you could just watch a trial but really to break it down, that’s what’s kind of fun about it.

Andrew Eisbrouch: I like to compare it to NFL Red Zone for trials. Basically, we hopped through the best of the best. So during the sidebars, during the lunch breaks, during any other breaks and the trials, we come back give the audience in context and it’s really just meant for people who love the true crime space, want to learn more a better justice system.

You don’t need to be a lawyer to watch and these trials are just so engaging especially with the increase of people wanting to watch true crime content these days with the making of murders of the world, serial et cetera, we kind of just fit in a good niche.

Elie Mystal: I know a lot of our listeners to this podcast are people who are thinking about going into law school. One of the pieces of advice is always we say is that, you should go to court, court is free and you can see what lawyers actually do and what they actually sound like.

A lot of zero Ls, they really think that litigating courtroom trial is all about these like grand speeches and incisive questioning and I just love, I just love it when they get to watch and really see that your summation is a lot of — and that’s why your honor we are referring to — is this Exhibit 18B, well, this is why we are referring to like that’s the haltingness of it and then packed around that are some really great lines.

Jesse Weber: Not every day is I want the truth, that’s a big surprise for people and what they have to realize is we cover the reality of these cases, yes, if you look at the story, the headline, they are really gritty cases. But a large portion of it is like you said these exhibits and why do I have to learn the background of DNA. You know how boring that can get, but if the prosecution doesn’t put that forward, they could lose their case.

So, everything’s a building block and people are fascinated by how a courtroom actually works, the procedure of it, because it’s not what a lot of people thought of.

Andrew Eisbrouch: Yeah, I think the whole appeal of it is people like to see the onion unfolding. They like to feel like they are the beginning, like they are part of the jury and see every part of the step. So even though we’re seeing some really boring forensic testimony, I mean, really boring, they still want to see it because they want to make sure they are digesting everything.

Jesse Weber: And there’s an unpredictability about it too. We covered the Larry Nassar case and we were one of the few networks to cover every one of the survivors or the victims, every statement, word for word, we didn’t take tidbits, we covered each one.

And we’re doing it, we’re covering each one, everyone’s impactful, everyone’s emotional and I don’t know if you remember seeing this or hearing about it, but there was a father of three girls that were abused by this guy and in the middle of him speaking with the judge, he just makes a beeline for Nassar and tries to tackle him. We were like where did this come from?

(00:10:00)

And it was because we had that live camera, we had no idea. We covered another case, I forgot which one it was, a defendant looks at the jury and says to them, whispers, we caught it on audio “find me guilty, find me guilty”. We caught that audio and we were — I remember, I think we were the only ones that caught that, and the judge was like, wait a sec. What just happened? He whispered that? Because we caught it. So, you don’t know what’s going to happen that unpredictability is a big aspect of it.

Elie Mystal: Did you also have a camera on the defense lawyer at that time?

Jesse Weber: Oh my gosh.

Elie Mystal: That must have been a day.

Jesse Weber: I think he was talking to the judge and nobody caught it, but our camera was right on the defendant. We do that a lot. So, if there’s a big witness speaking or the judge speaking, we like to look — writing what the defendant is thinking, if we can get an insight and just turns to the jury and says that and we on our end we’re like, did he just say, find me guilty and he did. He was out of his mind. That’s not a legal term, but, yeah, you got it.

Joe Patrice: Wow, yeah, I know that’s the thing. I mean, sometimes you can’t make it on the outside, I guess.

So, talking about transparency in the courtrooms and stuff like that, we’re now just a couple of days ago, there was a bill introduced in the house that would radically change the way the federal courts work and move towards making everybody bring at least audio if not video online for people.

The Supreme Court’s always, them in particular, but many of the other circuit courts too have been shielding themselves from scrutiny. What you all do, do you think there’s benefits odds, there are people who are interested in the truth crime space, but for stuff like the Supreme Court and Appellate Litigation, do you think there’s going to be some value that people will tune in and learn more about that process, or do you think there’s something kind of magical about that being a little guarded from the constant second-guessing?

Andrew Eisbrouch: So I would say and I would think Jesse would agree with me here too that there are a hundred percent should be cameras in the Supreme Court. They are making very important decisions that affect millions of people in the country. So, if any court needed that kind of transparency, I would say it’s that court. Most of the arguments you hear against this type of thing is that the lawyers will change how they’re acting or the different decisions might be made because people are acting for the camera or it’s more for entertainment purposes. But, you’ve seen with, police wearing body cams, they actually act more responsibly when they feel like they’re being watched by someone else.

Joe Patrice: Until they turn them off, but, yes.

Elie Mystal: Thank you.

Andrew Eisbrouch: But they are in the — there’s actually an added level of pressure and in reality we’re paying the salaries of most of the people in these courtrooms. Like, we should see where that money is going to and what’s actually happening in the justice system.

Jesse Weber: I’ll just say if all the transcripts are available for the back and forth about the questioning, why do we not have audio at the very least? Why do we not have video? Now, I will say there’s something mysterious about the Supreme Court when you don’t have that in there, right? There’s a mysterious aspect, how was the tone of his voice? How was the tone of her voice? What was the way that this was questioned? You could read a transcript and believe it or not, I went to acting school at one point. You can have a play, you can read it, but everybody reads it in totally different ways. So, I think there’s a value to hear how a question is asked, both by a Supreme Court justice and how it’s answered by an attorney. There’s a value to that, that we are lacking considerably, and I think that’s a problem.

Elie Mystal: I think it goes back to the legal fiction that the Supreme Court justices are just brains in jars, right? That they are above the fray and they are making these like really deep decisions about the state of the law and not kind of grittier more on-the-ground, case-by-case, day-to-day political concerns, and I think that if we lived in a society where that was true, I would understand their reluctance for cameras, but since it’s clearly not true and since they clearly are making political decisions and I don’t want to go fully back into Kavanaugh, but all right, I think that the cameras are a requirement at this point for the transparency and so that we can see exactly how our democracy is being stolen from us.

Joe Patrice: I know a little less over the top than that, but like to the extent we have Appellate Courts. Appellate Courts hold to a standard, they trust the trial judge because the trial judge was the one who actually got to see the witness, much to like the tone and stuff like that. We already built into the system the idea that tone matters and impressions of the person’s body language matter when we’re deciding to give deference to the trial judge in evaluating testimony. So, at the point that we already think that, like you said whether that stuff does matter, we already have kind of decided that matter. So, I’m also a transparency guy.

Jesse Weber: Not talking too much about Kavanaugh but do you think it would have gotten as much attention if the cameras weren’t there? I mean, it was so entertaining and from a different perspective too, there’s a serious lack. We’re both Millennials. There’s a serious lack, I would say for people to be interested in the way our government works and how our judicial system works.

(00:15:01)

So, if you put the cameras in there how many more young people were talking about Kavanaugh than weren’t talking about back in the day or if you put cameras in the Supreme Court, maybe they’ll be interested in really big issues that are going to affect their life than just reading about it in an article. That’s the way that I always felt.

Elie Mystal: But can I push back a little bit because that becomes then — that’s part of the basis for the reluctance for cameras. If you look at the Kavanaugh hearings, something like 200 people, mainly women, I would point out, were arrested during the Kavanaugh hearings for protesting. And part of those protests — I don’t think 200 women got arrested thinking they were going to change the mind of John Cornyn, right? That was in part for the cameras. The Supreme Court, obviously has some interest in not having people upset their proceedings with kind of camera-driven protests.

No — okay, from my personal view, burn the whole thing f**king down. But I understand that from Clarence Thomas’ point of view, he doesn’t want these protesters messing up his court.

Jesse Weber: Well, two things. One, he probably just doesn’t want them to see that he doesn’t say anything throughout the whole process. Nobody really — I don’t know what he does throughout the whole process, but it could also be, hey, have cameras, have audio equipment, have reporters, but maybe don’t exclude a certain amount of people that are allowed within the courtroom. I think that’s very fair.

Andrew Eisbrouch: And these days, more than ever, the cameras are not even as intrusive they used to be. You can have like one camera there, and everybody else can plug in. So in a courtroom most people can’t even tell that they are there, it’s one little camera. Now obviously for the Kavanaugh hearing, it’s a lot more, but –

Joe Patrice: I guess legal drama and the vision of courtroom proceedings that it has created, do you find that destructive in some ways like to the extent that it’s convinced a generation of people that courts are this thing that they really aren’t? Your work kind of is pushing holes in, but like is it a problem the way in which we’ve kind of fetishized the confession on the stand kind of law?

Jesse Weber: So, funny you should mention that. I was just talking about something like that. There’s a guy that we’re covering. His name is Stanley Liggins; this is out of Iowa. This is the third time he’s being tried for the crime of killing this young nine-year-old girl. He was tried back in the 90s.

Elie Mystal: Third time?

Jesse Weber: Third time.

Elie Mystal: I mean, isn’t there like a Fifth Amendment thing against?

Jesse Weber: No.

Joe Patrice: After missed trials.

Jesse Weber: Well, he was convicted two times, but those convictions were thrown out because of a whole number of issues with the prosecution. The problem is, those cases were tried back in the 90s maybe early 2000s. I was having conversation about why this trial in 2018 might be different. People are a lot more savvy with what does forensic evidence have to say? What do eyewitnesses have to say? Courtroom dramas, things they’ve read, any which way they get the information. It is a lot different today than it was back in the day, which makes the question, will they actually acquit him for the first time thinking a new jury in 2018 as opposed to the 90s?

So, when you put these trials in and people are seeing them, they’re getting a whole radically different perspective about how someone can actually win a case and what’s enough to find someone guilty?

Elie Mystal: Can I just stuff in? Because that is literally the first — you’ve just made the first pro CSI effect argument that I have heard, and I am here for it.

Jesse Weber: Thank you.

Elie Mystal: I love it.

Jesse Weber: I feel really good about that. You can quote me on that one.

Elie Mystal: Just for our listeners. The CSI effect is, is what you call basically what Weber just said. The fact that people watch this stuff on TV and then have this belief of what forensic evidence is supposed to be able to accomplish.

Now, prosecutors usually, who are usually who get to go on TV and talk to you about how their law is supposed to work, prosecutors hate the CSI effect because they feel like it holds them to an unreasonable standard. There are people — they are home watching Bones and they can see whatever Deschanel figure it out from like two like femurs and they think that the prosecutor with a whole live person should be able to tell you what the person had for breakfast on the day he was murdered.

So, prosecutors generally like this but this is a pro CSI argument because one of the things that you realize when you actually pay attention to how prosecutors work is that most of their forensic evidence is trash and having people have a higher kind of expectation of that could actually lead to some not wrongful acquittals but correct acquittals.

Andrew Eisbrouch: I think we’re also in a place now too where people are sick of reality TV shows. They’re starting to realize that they are not real. They are not authentic and they want something that’s more genuine. So, like over the last 10 years that was a whole thing to-do, but now they want to see things that are actually real.

So, if courtroom dramas are what brings them to learning more about justice system and it’s entertaining in a way but still gives them some educational component, I think that’s a good thing.

Jesse Weber: Just to jump back with the reality of DNA and all that stuff, you think – I am not going to lie.

(00:19:59)

One of the best parts is watching the opening statements and the closing arguments from the prosecution and the defense. This guy gets up there, losing case, just this guy had the worst case possible and he goes, you know, jury, you hear things like DNA and I don’t want you getting all confused by what this means. When you hear DNA, don’t think one thing. At the end of the day when they presented the evidence, the DNA was all over his client.

But the point is, is like you get this concept of like what does it really mean and they break it down for you in a way that you suspect and also you don’t suspect, but I just love that guy, because he is like, hey, you have got to work with me on something here, I don’t have much. You can imagine like people doing that like 100 years ago. Jury, you are going to hear a lot of things about blood, we don’t really know where blood comes from, is it from God, is it from the devil.

Joe Patrice: The humors, yeah, no, that’s fascinating and it’s a real change in — and this goes to that CSI effect discussion a little bit, but like the O.J. hearing which is kind of from a lot of people the first real court TV kind of experience, right, for a lot of people —

Elie Mystal: They are Millennials, you are Millennials, even like —

Andrew Eisbrouch: We got a good year of O.J. while we were three, probably, I was three.

Elie Mystal: Oh my gosh.

Jesse Weber: My mom had Court TV on constant. I had no idea what O.J. was about. I didn’t even know — speaking of which, I was so young, I didn’t even know what the little blue dress was from Clinton, I didn’t even know what was going on there.

Elie Mystal: Oh my goodness.

Joe Patrice: Yikes. Yeah.

Elie Mystal: So many scars.

Joe Patrice: Yeah. The point is that’s inappropriate evening wear, it should have been black dress. Anyway, the point is, I am going to transition back, but —

Elie Mystal: I would like to point out that this podcast has no women on the show today, but if there was one Joe would be smacked.

Joe Patrice: No, I think my fashion advice was right there. But the point is — the point that I was trying to get to was, so the — there’s been a swing, like that O.J. hearing, there are a lot of people who suggest that that O.J. verdict had a lot to do with the jury not knowing what DNA was and not being in any way willing to trust this newfangled scientific development; one that I only understood because I watched G.I. Joe and learned that that’s how they built Serpentor, but normal people had no idea what DNA was back then and now everybody knows what it is, and to the point where they are super, like you said, super into the idea of it, whether it’s DNA’s magic, if they have gone all the way into CSI, or just like the more reasonable, they are savvy about we know what it is and we know how to evaluate it.

Jesse Weber: Well, I think O.J. is the whole reason why people are protective of cameras in the courtroom now, because that is a situation where I do think the media has screwed it up and made the trial last way longer than it would have, and the lawyers were basically acting for the camera. I mean, there were way more motions, way more problems, and that’s a situation that I don’t think is common, but in that scenario I think it might have swayed what happened, made it a lot longer.

Elie Mystal: Shouldn’t have framed a guilty man. I am not going to do my full O.J. thing. Seeing all these trials, seeing all these approaches, give me a sense of kind of some of the best practices for defense attorneys, playing to the crowd, understanding that that’s a big part of their job, like what are some of the best practices?

Andrew Eisbrouch: Wow. So the ones where I have seen them be successful, I am not advocating this in any way for each trial, find another person who did it. I have seen so many cases and if you want to — Aaron Hernandez, oh my gosh, that was one of the first cases I covered here on Law & Crime, they painted the picture that his accomplice, Alexander Bradley, was the one who really did it and had an incentive to lie. Oh my gosh, if you give somebody an incentive that someone else could do it, huge thing.

I have noticed from a practical point of view PowerPoints are so helpful, so helpful. If you are sitting in that jury, a lot of times you don’t have notes, you just have to hear what you hear, take what you see, if you have a PowerPoint presentation, it really helps break it down.

And also, you have to have energy. I have seen cases where the defense has a really strong case, but it just dies with the defense attorney, or if they are stumbling over their words or they are getting confused or they are not articulate or if they are not cohesive.

I saw this — there was a case, one of the best cases we have ever covered is the Tex McIver case. This attorney on trial killing his wife, shot her from the backseat of a moving car, he admitted to doing it, but said that he fell asleep while holding the loaded gun. The defense put on the strongest case I think I have ever seen.

Now, I am telling you they brought out their own expert about why the gun could — it was impossible for it to be held in an upright position, it had to be on the lap, they did an articulate explanation for what his behavior was after everything. The jury was split for a while, they didn’t know which way to go. They ultimately convicted him, but not of murder, they did it of a different kind of thing, felony murder, it’s the whole big thing.

(00:24:59)

But anyway, they were so strong that I — me, I would say half our audience was shocked when he was found guilty because of how strong they were. Here is a guy who admitted to shooting his wife and the jury was almost split.

Elie Mystal: Can I just say, first of all, that’s great. I mean that’s fantastic. One of my favorite legal shows, that’s where you started Joe, was always The Practice with Dylan McDermott and it was this gritty Boston law firm, with sexy Dylan McDermott, and I am like a random Harvard student who was like smart. I liked it, whatever.

Their thing was plan B, like whenever they would get like a really tough defendant, they would always talk about having to go to Plan B, which was just make up a person who maybe could have done it.

Joe Patrice: Where did you go to law school, Elie?

Elie Mystal: Well, not in Boston, near Boston.

Jesse Weber: There is a case that we are covering right now, it’s really sad, it’s about this young girl that was killed. She was in the custody of her mother and her boyfriend, the boyfriend is on trial, guess what the defense strategy is, blame the mother. The worst thing I did was be a bad boyfriend and didn’t step in and I should have stepped in, but if you have to blame anyone, blame the mother. It’s currently underway, I am not sure which way it’s going to go.

Andrew Eisbrouch: I would say also too, if you are a defense attorney, 99% of the time do not put your client on the stand.

Joe Patrice: Oh absolutely, yeah.

Andrew Eisbrouch: And that actually happens. In a lot of our trials it happens, the defendants go on the stand, which is super interesting to see someone testifying on their own behalf, but more or less, I don’t think it’s a great strategy.

Jesse Weber: Oh my gosh, I am sorry, I have to tell you this one. We covered this guy, Adam Matos, killed an entire family; his girlfriend, her whole family, claimed self-defense on the stand, he killed four people, waited for the mother to come home, knocked her out and killed her and said, I was still like — I didn’t know where my emotions were, I still thought I was under a threat, found guilty. Didn’t really — big shocker there, but yeah, defendants taking a stand.

Andrew Eisbrouch: So this doesn’t really have much to do with it, but it kind of brought up a memory here. There was a trial that we covered; I forgot the name of it, that one of the juries had to remove herself because she thought the defendant was too hot to convict.

Jesse Weber: Adam Matos.

Andrew Eisbrouch: That was Adam Matos, that’s why I thought of it. So she backed out because —

Elie Mystal: Too sexy.

Jesse Weber: Yeah, she was too attracted to him to find him guilty.

Elie Mystal: I was just about to say Ty Cobb, if you are listening, and I think you are, you have something to send to your former client now, but that just ruined it, right, because now when Trump hears this he is going to be like well, I also am too sexy to convict.

Robert Mueller will be dazzled by my hair.

Jesse Weber: Frankly, you are underestimating how good-looking I would be on the stand, it would be pretty great.

Joe Patrice: Yeah, no, never put your defendant on the stand if you can avoid it, it’s never a good idea. But it is one of those recurring myths still, like whenever we hear, like I think of the most recent Manafort thing, there was a conversation about not being on, and people freak out on social media. They didn’t even put him up and I am like yeah, no, they don’t have to, and it’s probably a bad idea. This is something that happens all the time, but that’s one of the recurring myths I push back on, on social media.

Jesse Weber: Why would you put someone on the stand if they don’t have to? The only time I have really seen a value in putting someone on the stand is self-defense cases, because you have to understand what was going on in their mind and we see it a lot in police shootings, which is tragic and it shouldn’t be happening, it happens more and more, we have been covering so many of these cases, but it’s interesting to hear how each defendant, each officer, whatever the situation is, what was going on in their mind. Why did they think there was a threat and does it make sense, does it really make sense.

We covered this guy, he was tried two times, first one ended in mistrial, it was a video of him stopping a man in a car. I am saying the shooting happened within a fraction of a second, studied that video, tried to understand, the question was, was the car moving when he fired, was the car almost going to hit him when he fired, and the jury ultimately, I think it was two mistrials, but the point is, is understanding from their perspective, that’s the only time I think there’s value.

Otherwise what’s Paul Manafort going to say, I don’t know what was going on.

Joe Patrice: Yeah, I mean the cops in those cases is the only hope, because the videos are usually pretty damning. The only hope is to get the jury to be a little doubtful that oh, well, they were thinking, utilize that kind of ethos of people trust them, or at least by the time you are done with decent jury selection.

Elie Mystal: Now I want to do my O.J. thing because I don’t want to do this thing.

Joe Patrice: But you aren’t going to?

Elie Mystal: No.

Joe Patrice: Okay. Yeah. That sentence seemed to be a launching point, which is why we all kind of like sat back and waited.

Elie Mystal: No, I was the one who leaned back.

Joe Patrice: Oh yeah.

Elie Mystal: I blew my load on Kavanaugh today. I have only got time for John Q Law.

Joe Patrice: Fair enough.

Jesse Weber: We may talk about Kavanaugh tomorrow on our podcast.

Joe Patrice: So there you go.

Jesse Weber: So tune in.

Joe Patrice: Well, we are kind of at the end of our show. Thanks guys for joining. That’s Guys Who Law and not Legal Boys, though that would have been fun.

So Guys Who Law, listen, it’s the Law & Crime Network, watch that.

Follow, read Above the Law, Elie is at @ElieNYC on Twitter, I am @JosephPatrice on Twitter. Listen to other Legal Talk Network podcasts. Is that everything? What are you guys at social media hookups?

(00:29:59)

Jesse Weber: Well, I am @jessecordweber, that’s on Twitter, and @realjweber. I did that @realjweber right when Instagram became big, I thought it would have been funny if I pretended like there were other Jesse Webers out there. They are not. It’s totally useless.

Andrew Eisbrouch: So I have the worst spelled last name ever, it’s just @andreweisbrouch, that’s it.

Joe Patrice: Yeah. Well, from social media perspective, you should take advantage of that and be like Ice Brook.

Andrew Eisbrouch: Ice Ice Baby or something like that. It actually used to be that, and I changed it to be a little bit more professional, yeah.

Joe Patrice: Yeah.

Jesse Weber: And we got @Law&Crime and @guyswholaw, those are ours. I think we fully plugged everything we have had to plug, yeah. Thanks so much guys.

Joe Patrice: Yeah, no, and give reviews and stars to all of our podcasts because that helps all of us move up in those ratings. All right, thanks and we will talk to you all next time.

Elie Mystal: All right, down.

[Music]

Outro: If you would like more information about what you heard today, please visit legaltalknetwork.com. You can also find us at abovethelaw.com, atlredline.com, iTunes, RSS, Twitter, and Facebook.

The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

[Music]

Episode Details
Published: September 18, 2018
Podcast: Thinking Like a Lawyer - Above the Law
Category: Legal News
Podcast
Thinking Like a Lawyer - Above the Law
Thinking Like a Lawyer - Above the Law

Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.

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