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Dec. 9, 2021 - The Megyn Kelly Show
01:30:47
20211209_mark-geragos-on-scott-peterson-kim-potter-alec-bal
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Pro Death Penalty Jurors 00:10:41
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Welcome to The Megan Kelly Show, your home for open, honest, and provocative conversations.
Hey, everyone, I'm Megan Kelly.
Welcome to The Megan Kelly Show.
Thrilled, thrilled about what we're doing today.
My guest today for the full show is someone I have long admired, Mark Garagos.
He's one of the most fascinating, accomplished, legit lawyers, trial lawyers in the country.
He has defended some of the biggest names in the most famous and infamous cases over the past few decades, including several cases, several making big headlines right now and even today.
Here are just a few of his most famous clients Michael Jackson, actress Winona Ryder, actor Jussie Smollett, oh, yes, Colin Kaepernick, and Scott Peterson.
Do you know that there's news in the Scott Peterson case?
This is one of the first cases I covered when I was at Fox News.
I was a young cub reporter.
I didn't know what I was doing.
I was much closer to being a lawyer than I was to being a journalist.
At that point in time.
And so I love this case because it had all the elements and the whole country was riveted by it.
Scott Peterson was convicted of killing his wife and their unborn child back in 2004.
Well, he was in court yesterday being resentenced.
He was given a death sentence at the time.
Well, he received a new sentence for those 2004 murders.
But Peterson might be getting a new trial as well.
So it's not just that his sentence has been effectively reduced.
He may be getting a new trial.
So, we're going to get into why that is.
And Mark Garrigos believes to this day that Scott Peterson is innocent.
Going to get into Jesse Smollett, talk about that.
And new testimonies underway right now in the trial of Minnesota police officer Kim Potter, who's on trial for having shot Dante Wright with a gun, which she believed was a taser.
So, lots to discuss.
Mark Garrigos is a trial lawyer and managing partner of Garrigos and Garrigos and co host of the podcast Reasonable Doubt with Adam Carolla.
Thank you so much for being here, Mark.
How are you?
Thank you.
I'm wonderful.
It's, I guess, kind of come full circle.
I remember you covering the Peterson case and thought you had a bright future and see I could prognosticate things then and now.
So, oh my God, I would have been so honored if I had known that at the time.
I just watched you and you're such a skilled trial attorney, such confidence, and you're at the peak of all these massive cases, a lot of pressure.
So, that does mean a lot to me.
Thank you for saying that.
It was quite a different time.
You were just starting out.
Kimberly Goofoyle was just starting out, then married to the mayor, and Nancy Grace just kind of blown up, so to speak.
And Court TV was really in its heyday at that point.
It's true.
I will tell you, though, that I was thinking about a lot of those things yesterday because, as you just mentioned, Scott was just resentenced.
And by the way, I think that's a little bit of kabuki theater because.
The same judge who has this, and you had mentioned that the California Supreme Court had reversed the death penalty unanimously, by the way, because we had complained in real time the judge was using the absolute wrong standard for excusing jurors.
If somebody didn't have a kind of a preference for the death penalty or not.
He was just excusing anybody who was against the death penalty, which is not the standard.
I was bitterly complaining at the time.
Yeah, he should have followed up and said, but can you still be fair?
Could you still impose it if the facts justified?
Which, by the way, was the law and it was clear, it was U.S. Supreme Court precedent.
And the California Supreme Court, not only the poor judge DeLuke is now dead, but not only Reversed it, but kind of excoriated the prosecution.
Why did you allow this to happen?
You know, this was basically a year long proceeding, and what a waste of time.
My position has been well, if you get kind of pro death penalty jurors, you're getting pro law enforcement jurors, and that should have tainted the guilt phase as well.
What they did instead of going that far, what they did is they issued right after the reversal an OSC order to show cause saying to the trial judge, Look, there's this woman who was a juror.
Strawberry Shortcake is the way she was dubbed by the media.
And just to jump in, just to hold on, Mark, because I just want to make sure that our audience is with us.
We're shifting gears a little.
He got a new trial instead of a death sentence because the judge shouldn't have been disqualifying jurors who had doubts about the death penalty.
So that's why he got a different sentence.
But what he got was he got a different sentence.
Exactly.
But he wants a new trial.
He wants a redo on the guilt or innocence phase based on something else involving jurors, yes, but it's a different issue and it respects.
Revolves around this, as you say, strawberry shortcake.
Okay, go ahead.
Exactly.
And so, what they've done is they had a, they issued the Supreme Court issue in order to show cause.
So, now they're back in the trial court.
The same judge who resentenced him to life yesterday has now set a hearing for next year.
And the kind of an interesting twist that hasn't been reported on she filed a declaration denying that she had lied or denying that she hadn't been truthful.
But now she's got a new lawyer and she's invoking the Fifth Amendment.
Oh, and so.
Oh, wait, wait, wait, wait.
So, again, let's set it up because people are not as neck deep in it as you are.
So, this juror, the alleged misconduct is when you guys were going through, because you were Scott's lawyer.
I mean, I guess we should remind people of that again.
You were his trial lawyer.
So, when you were voidiring the jurors and figuring out who you guys wanted on the jury, you and the prosecution had to agree.
This woman filled out a form and did not disclose that she had been the victim of domestic abuse.
Of abuse while pregnant, which of course was the situation being alleged.
Yeah, might have given us pause, right?
Yes, of course.
And as a defense lawyer, you can either bounce somebody for cause saying there's no way this person can be fair, or you can use your peremptory challenges saying, I don't have to tell you why I don't want her.
I just, I don't want her.
You weren't given that opportunity because you didn't know.
You didn't know that this woman had been abused while pregnant.
She kept it a secret orally in writing.
I guess it came up a couple of times.
She never disclosed.
And so I'll bounce it back to you on what.
So now she's pleading the fifth.
Yeah, she filed a declaration, presumably at the behest of the prosecution, because it was attached as an exhibit.
And then she gets a new lawyer.
Now she's asking for immunity, which is shocking to me.
Which, if you read between the lines, the prosecutor got her to say something, presumably, that she no longer thinks is true or didn't think was true at the time.
If they don't give her immunity, then, as you know, they'll strike the declaration, and Scott's got a better than even chance of getting a new trial.
What did she say in the declaration?
Because she, she, like, as I understood it, it's his defense counsel saying, We came to understand.
That she had this thing and she didn't disclose it.
Therefore, we're entitled to a new trial because he's entitled to a jury that doesn't have any sort of unfair bias against him.
Why was she submitting an affidavit or a declaration, the juror?
Because they were trying to say the appellate lawyers were saying for Scott that she had not disclosed this, that she knew that it was relevant.
One of the reasons that this was a hot issue, I had caught two other jurors who had lied, prospective.
Jurors who had lied about their background and having domestic violence and caught them in real time.
And they had fooled me.
I mean, one juror had gone back.
I mean, we're going back 17 years.
Back then, they had chat rooms, and somebody had faxed me a chat room conversation that one of these prospective jurors had where she had been bragging that she fooled the dumb shit defense lawyer, me, and was going to get on this jury and fry his client.
And I confronted her with.
That after I got that, I was a little ticked at my PI for not finding it.
But that was the kind of stuff we were dealing with.
That's where we coined the term stealth jurors, jurors who wanted to get on a jury for some other agenda other than to do justice.
So now this court is, I guess, February 20th, I think is what that February 25th, the hearing on whether he should get a new trial on guilt or innocence will begin.
And I wonder what you think.
I know what you want, but what do you think?
Think the odds are because I've read a lot of articles on it now, and half of them say legal analysts say it's very, very unlikely he's going to get it.
And then half of them say legal analysts say he has a very good chance of getting it.
Well, we're in the state court.
So the California Supreme Court, as I indicated, had unanimously referred this back to the state trial court.
It's an awful heavy lift for a trial court judge in a case like this.
Remember, at the time, you probably have a A pretty good memory of it.
I mean, this was the most hated man in America.
As soon as Amber Fry came on the scene, that was all she wrote in terms of the kind of pretrial prejudice and animosity and animus towards Scott.
So I hate to be a cynic, but it is a heavy lift.
However, if Strawberry Shortcake does not get immunity and will not testify, that declaration of hers gets struck and they're left with no evidence to rebut, they being the prosecution, to rebut the OSC.
Amber Fry Alibi Theory 00:03:43
And so Presumably, he would get a reversal.
Now, if you're asking me to prognosticate, I'm always more confident that that would happen in federal court than state court, but we'll see.
Let's go back through it because his sister, Scott's sister, Janie, has been a tireless advocate for him.
I watched a 48 Hours piece not long ago that got into it in depth with her.
And she and his supporters maintain.
He didn't do it.
It's not just like the prosecution didn't meet its burden, that he is innocent of this crime.
And the theory is, and just to remind the viewers, what happened was it was December 24th.
It was Christmas Eve, right, 2002.
And I'll let you tell them, Mark.
What was the theory of the prosecution?
Was what happened to him?
The theory of the prosecution was that he had, at least in the opening statements, they had taken the position that he killed her on the 23rd, that he transported her.
In the back of a boat up to the bay, that he dumped her on the 24th and then came home and had made conflicting statements golfing or fishing, blah, blah, blah.
During the trial and by closings, we had, I thought, demonstrably proved.
That she was alive on the morning of the 24th.
And the way we had done that is they had a forensic computer expert who was on the stand.
And during cross examination, I got him to admit that it appeared that the activity on the morning of the 24th was consistent with the websites that Lacey would go to, that she had logged in and had all the signatures of Lacey.
So, and we had shown in the hamper that the clothes that were there would have been the dirty clothes that she had worn on the 23rd.
The prosecutor, Rick D'Astasso, who's now a judge, by the way, Got up in closing rebuttal and said, Well, it really doesn't matter.
Yeah, we may have been wrong.
We don't know when she was dead.
We don't know how she's dead.
We don't know where.
But the fact is, his alibi was in the bay.
That's where she was found four or so months later.
So therefore, you must convict.
A couple of the jurors in real time back then said, But for her being found in the bay, they never would have convicted.
I always thought, and I, Publicly, before I took the case, said, you know, there's guys in state prison on a lot less evidence that the body washes up in the same location where your alibi was.
But the problem was it was a four month hiatus.
Everybody in the world knew where he had been.
And so that kind of takes away, if you will, the causal connection.
And number two, that area where the bay was searched repeatedly by four or five different agencies, and they found nothing until after.
After this huge storm, and that's when they found Lacey's body and Connor's body as well.
Because Lacey was eight months pregnant with their son, Connor.
And the theory of the prosecution was that he killed her because he was having an affair with Amber Fry, and he didn't want a child, and he didn't want to be with Lacey anymore.
He wanted to be with Amber Fry, the very beautiful blonde who, you know, it was the Gloria Allred moment that we see in virtually every case.
That was the bombshell because when Lacey was missing, the whole country was saying, Where is she?
Where is she?
It's a beautiful eight month pregnant woman, adoring mother.
Sharon Rocha, you used to see her everywhere.
Scott Peterson's a good looking guy.
It's like, Oh, they seem like this all American couple.
Debunking Sociopath Claims 00:15:11
My God, it's Christmas Eve.
What happened to Lacey and Connor, the unborn baby?
And then things turned when Amber Fry came forward.
Amber had been told by Scott, and this is one of the things that led people to hate him and believe he did it.
That his wife was dead.
She only met Scott Peterson on 11 20, November 20.
And he said, My wife's dead.
This will be my first Christmas without her, which, of course, the prosecution was like, That's foreshadowing by him.
And then Sharon turned on him.
Lacey's family turned on him.
And then you tell me, Mark, because I know you don't like it when your clients give interviews to the press.
I listened to you for years and I know you'll dump a client for that.
But he sat down with Diane Sawyer.
And spewed a bunch of nonsense that we all knew wasn't true.
We actually pulled a clip because I wanted to ask you about how you, the lawyer, felt about this.
But here he is 17 plus years ago talking to Diane Sawyer on GMA.
Did your wife find out about it?
I told my wife.
When?
In early December.
Did it cause a rupture in the marriage?
It was not a positive, obviously.
It's a.
You know, inappropriate.
But it was not something that we weren't dealing with.
A lot of arguing?
No.
I can't say that.
That even, you know, she was okay with the idea.
But it wasn't anything that would break us apart.
There wasn't a lot of anger?
No.
The Diane Sayer confused face speaks for us all.
Oh, she was fine with your affair.
I used to say during this case that the absolute worst demographic for Scott and for me was professional white women.
I have never seen, I could go to the gym in the morning during this trial.
And there would be, because there were no cameras in the courtroom, which, by the way, was probably my biggest mistake because things were being reported from New York and there were all these urban myths.
And I could explain or disabuse somebody about any of the pieces of evidence.
But ultimately, they would say, What about this?
What about this?
And I would debunk it, debunk it, debunk it.
And then it would always default to, Yeah, well, I had an ex boyfriend just like him and I could see where he would have done this.
And you can't, you know, there's a, There's a visceral quality to that where you just can't get over it.
And this interview, I mean, you've captured my sentiment exactly.
I tell people, funny, I suppose we may talk about Alec Baldwin.
The idea that somehow you need to go out and do an interview and you need to curate your image, so to speak, when you're in the eye of the storm is, I can't think of worst advice consistently.
The only guy who ever did it with any success, ultimately, was Robert Blake.
And other than that, I can't give you an example where it worked out well for somebody to go do an interview while they're pre charging or while the prosecutor's making decisions.
It just makes no sense whatsoever.
No.
I mean, I always say it's so obvious that he's lying.
He did not tell Lacey about his affair.
And there was no tension because she didn't know there may have been tension for him.
And then the other thing he did, apart from, I believe, murdering his wife and unborn child, but the other thing he did was.
While he was at Lacey's vigil, you know, they're having the vigils like, where is she?
Where's Connor?
Because their body didn't come up, as you say, until April at the marina.
He's on the phone.
We now know Amber Frye.
She went to the cops when she realized the guy she was dating was the guy married to this Lacey Peterson who everybody's looking for.
So, to her credit, she went to the cops and said, I think I'm dating this man.
They had her do 29 hours worth of tapes with him.
And one of them I will never forget is she's talking to him.
He's like, I'm at the Eiffel Tower, Paris.
It's so beautiful.
He was at the Vigil for Lacey Mark.
He is guilty as the day is long.
Well, you know what?
The counter to that is, and what I look, I'm with you.
The first time I heard it, I said, How are we ever going to get over this?
But then in talking with him, he said, Look, I understood that the minute Amber surfaced, that the minute she came out, all bets were off.
They were going to stop looking for Lacey.
I had to do something.
I had to keep her on ice, hoping that we would find Lacey and then that would solve the problem.
And I, I, You know, I've often said people say, Well, how can you?
You're drinking the Kool Aid, you're inside, you know, you're psychotic.
How could you believe these?
Look, I've represented over the almost 40 years, probably, I don't know, 500 homicide cases over the 40 years, maybe, maybe less.
But I know when somebody's good for something, I know when they're capable of it.
I've figured that out.
I can tell.
I know when somebody's a sociopath, I know when they're, I mean, I can just read it just by going through it.
This guy doesn't have the capability.
I mean, that's just my spending that amount of time with him.
And I'll tell you, based on the evidence, The evidence.
I know that people say, well, circumstantial, he didn't act right.
The tapes you mentioned always are thrown back in my face.
And I said, yeah, but the problem is nobody can explain where this happened, how this happened, how this guy who gets on an interview and does not acquit himself well was able to not leave a forensic trace anywhere, anyhow, of this crime.
How is it the perfect crime?
And by the way, why couldn't he have smothered her or strangled her, which wouldn't lead to?
You know, blood evidence, her DNA would already be all over the house.
And then he got her body out of the house.
Yeah, but there wasn't anything that was consistent with that.
I mean, they went through, if you saw kinds of the, and we went extensively over the forensic, they couldn't even find anything.
There would be excretions, there would be evidence or telltale signs, trace evidence that would have been.
I got another one for you.
I got another one for you.
Why wouldn't he take a polygraph?
The night cops came over, the first day she was reported missing, and they said, we take a polygraph, and he refused.
Only because it's not admissible in California.
No, but this is at the point where she's missing.
He's supposed to be the grieving, terrified husband.
Where is she?
Oh my God.
Right?
Like if I go missing for a day and they say, Doug, will you take a polygraph?
Doug says, yes, of course, whatever you need.
But he didn't.
Well, it depends.
I don't know if Doug was playing around on the side, but let's go.
So T did not.
What do you know?
What?
No.
I don't want to ruin what appears to be a very happy marriage.
So you never know.
But look, I always advise clients.
If you want to take a polygraph, I'm going to do it with my guy first.
I mean, polygraphs are notoriously slipshod.
There's a reason.
There's a code section that doesn't allow them in.
And there's people who know how to pass them and people who would never pass them, even if you are telling the truth.
So to me, it doesn't make a whole lot of sense.
I still come back to or circle back.
There is no evidence.
There's absolutely no evidence of anything that shows where, how, or when.
Well, the evidence was all circumstantial about his affair.
About him saying she was dead, about him on Christmas Eve, weirdly going fishing in his boat.
He couldn't remember what bait he used when the cops asked him.
He went fishing in the very same place her body and Connor's body washed up four months later.
He was researching the currents.
Like that was basically the case.
They never were able to say how he allegedly killed her, or even, as you point out, when exactly when.
And by the way, we did a demonstration in that boat of trying to toss a body over, it would have capsized every time.
The judge would not allow that demonstration to be admitted into evidence, which I thought was outrageous because he allowed in a prosecution demonstration that did not replicate it.
Also, on the fishing on Christmas Eve, it came out in trial.
I never knew this that Lacey's stepfather was fishing on Christmas Eve as well.
He had never disclosed that, even though people were saying, Who goes fishing on Christmas Eve?
So, you know, there's a lot of things.
You can always weave together things that don't look right.
But at the end of the day, this is a guy who's got absolutely nothing, a complete pristine background.
And if you think he just committed cold blooded murder, especially of his unborn son, which nobody will tell you that he wasn't excited about having a son.
And I think that's what he wanted to say yesterday in the sentencing hearing, but the judge wouldn't let him allocate.
Right.
I'll make just a couple points for you.
The affect, his weird affect, he was weirdly aloof.
He was.
Smiling at the memorial caught on camera with big smiles, and people were like, That is not a grieving husband looking for his wife.
That's a sociopath.
But We recently had on Amanda Knox, and she was talking about, you know, obviously she was wrongly prosecuted by this crazy Italian prosecutor.
And her affect, too, was a little off seeming at the time.
And it was used against her in a very unfair way.
You really can't go by that, as it turns out.
And then the other thing is what the theory seems to be from Janie and others is that there were robbers, there were burglars in their Modesto, California neighborhood, that they were seen.
That previously we were told that the robbery or the burglary they committed was on the 26th, but they have evidence that it actually happened on the 24th and that Lacey may have been walking her dog, may have seen them, and may have been kidnapped by them.
The dog was later found by itself with its leash still on.
Some believe Scott did that to make it look like somebody grabbed her.
And others, you know, his side will say the burglars got her.
So we'll watch all of it play out.
I think it's fascinating.
If he actually does get a new trial, it will be the new trial of the century.
It's going to like.
No one will be able to peel their eyes away.
It's just got too many salacious, interesting elements.
Okay, so much more with Mark Garrigos.
He's represented everybody, everybody, including Jussie Smollett, including Michael Jackson.
Gonna ask him about Kim Potter, Ghislaine Maxwell, and much, much more.
Don't go away.
Okay, Mark, so let's talk about Kim Potter.
Kim Potter is the police officer who's now on trial for having shot Dante Wright to death.
Where she clearly mistook her taser for her gun, or I guess her gun for her taser.
And you can hear her on the tape saying, I'm going to tase you, taser, taser, taser.
And then she shoots with her firearm and he dies.
And it's obviously a tragic accident, but the prosecutor there has decided to treat it as a crime.
She's charged with first and second degree manslaughter.
And boy, they are in a battle there in that courtroom.
I mean, both sides are fighting it out.
This is the case in which the prosecution had, I'm sorry, the judge had some lunatic show up at her house trying to videotape her.
She spoke to that just the other day, saying it was an effort to intimidate me.
Good luck.
And the guy who did it was arrested.
But anyway, a new piece of videotape now showing Kim Potter after the shooting.
We've all seen the taser, taser, taser.
Here's a new piece of videotape showing her right after that, upset, and hear how her fellow officer, Officer Johnson, tries to console her.
Listen, there's a lot of crying, and then we'll get to the dialogue.
Just breathe.
Oh my God!
That guy was trying to take off with me in the car.
There you have it.
I mean, I don't know, Mark.
I think the average person looks at that and says, Why are we charging her again?
She screwed up, but like, how is it criminal?
You know, there's, I've been on obviously.
The criminal defense side, I also do a probably half of my practice are suing police agencies in situations where people have been wrongly killed.
And I've watched police officers almost uniformly get acquitted or have the judge dismiss at a probable cause proceeding.
It's very, very difficult to ever convict a police officer.
This case, I think, is very tough for the prosecution.
And this tape, and I'm glad you played it, certainly gives, you know, people often say, well, they didn't show remorse or they didn't understand or they didn't act right.
I, you know, I've spent a career.
Defending people who didn't act right.
I mean, clearly, here, this is somebody who's in the throes of a great deal of angst.
And I think that that is going to probably carry the day for him.
Because remember, other than people who are famous, police officers are the only other category of people that truly get a presumption of innocence.
Interesting.
You know, to me, it boils down to what are the instructions going to be to the jury?
Because if the judge tells the jury that.
She can't have behaved recklessly, which is required to prove first or second degree.
If she can't have behaved recklessly without knowing she was taking a dangerous risk, you know what I mean?
If it was a true accident, she didn't realize she was pulling out a firearm and shooting, then I don't see how she gets convicted.
Andrew Branca, who's been amazing, he's great.
He writes over at legalinsurrection.com.
They were amazing during the Rittenhouse trial, and everything Andrew said was right.
He put it as follows.
I was like, this is exactly it.
He says, The critical question is this Is the state required to prove that Kimberly Potter was aware that she was holding a firearm in her hand in order to prove beyond a reasonable doubt that her conduct in handling it was reckless and manslaughter?
Do they have to prove she was aware that she was holding a firearm?
The defense's position is that you cannot be engaged in reckless conduct that you do not know you are engaged in, right?
Implied Malice Explained 00:16:46
Like, you don't know you're firing a gun.
And the judge hasn't instructed the jury, and she hasn't given either side guidance on how this is going to come down.
I kind of wonder it all comes down to which way she rules, how she informs on recklessness.
Well, one of the problems is, and we've been arguing this in California state court for years, the difference between the state of mind for what's called an implied malice murder, the difference in homicide between murder and manslaughter is whether there's malice.
There's also what's called implied malice.
If you act in such a way, the law will imply that you had the malice for murder.
I've often argued, and I'm not alone here, that sometimes the state of mind when the jury gets the instruction on one of these manslaughter charges is very misleading, and the jury doesn't know what to do with it.
Giving guidance, so to speak, because they have what are called pattern instructions.
They've got instructions that have been either affirmed or blessed, if you will, by the appellate courts.
But she probably, in this case, wants to hear how the evidence comes out and then tailor it to that and tailor the instruction of that.
But it's a horrific job for jurors, for laypeople, to have to kind of parse through the language, which never is very clear, and then put that in context of what am I going to do with a Police officer who didn't go out there with the intention to do the killing.
And so that's a, you know, God forbid that you're one of those jurors.
It's interesting because the defense seems to be hedging its bets.
They're going to argue that she didn't have a state of mind at all intending to kill anybody.
Obviously, she didn't intend to fire her gun.
I think we can all give her that based on what we've seen, although some people aren't.
But they also seem to be kind of hedging by saying, even if she did intend to fire the gun, she had cause because.
The guy, Dante Wright, was driving away with an officer in the car, half in the car.
Here is so, what the prosecution did was they put on Officer Lucky, who was a three year officer, who was, she, Kim Potter, was supposed to be training that day.
And he was a prosecution witness, sort of talking about, His experience and what he saw.
And then the defense attorney got up there and, in like 20 minutes, seamless little boom, boom, boom, boom, cross examination, got out the following testimony.
Let's listen to it.
There's a voice that appears and says, Kim, that guy was trying to take off with me in the car.
Remember hearing that?
Yes.
Whose voice was that?
Sergeant Johnson's voice.
Is this a high crime area for guns as well?
Yes.
And for drugs?
Yes.
And your intuition is formulated by a number of things, but among them is that you've been in this area all your life.
Yes.
And know the streets as well as anybody?
Yes.
And you ran the plates, found that the tabs were stale, and then you had a reason to stop the car.
Is that right?
Yes.
So you wanted to find out what was going on?
Yes.
Because you had an intuition that something else was going on besides the tabs?
Yes.
You didn't quite know, but you were curious.
Yes.
And there was nothing wrong with you stopping the car for the reasons you said you stopped it, right?
Correct.
No.
So he's just basically trying to set up, it was a proper stop, you were following order, and that this was an area that was known for problematic crimes and criminals and so on.
And you also get out the fact that the one officer was half in the car when he tried to take off.
It's a technique that was used by the defense lawyer that he's probably been gored by that countless times by prosecutors who go through that same litany when they're trying to convict one of his clients.
I've heard that kind of thing.
This is a high crime area.
This is why you had an intuition.
This is why you did it, blah, blah, blah.
That's normally what the prosecutor would do.
Here, because you have a cop who's on trial, the other cop is going to support your theory.
You're being the defense lawyer and is going to give you what you want, which is exactly what he just did right there.
And by the way, you're absolutely correct, Megan, because what this does is even if you think that she isn't being truthful when she says she had a gun, that even with a gun, there is, you know, she had a reasonable doubt as to what was happening there and whether or not she could use the force that she used.
Place a bet, and I realize the trial's in the middle, but like, what would you guess the jury would do with this?
Because I realize the prosecution's like it was irresponsible.
You know, a man's dead.
She needs to be held accountable.
But it's like you watch this distraught woman.
She's been on the force 26 years.
She's not like chauvin.
She doesn't have a litany of complaints against her.
She's a mom.
You can hear her distress.
They're really going to throw this woman in jail for upwards of 15 years.
That Keith Ellison there wants to jack up the sentencing guidelines on her, he wants them to throw the book at this woman.
Well, I'll tell you during, I'll give you an example.
During the Rittenhouse trial, one of the reasons I was kind of leery of predicting, even though I thought that it looked to me like it was a self defense, was you can't look or I can't see the jurors.
I mean, the jury selection, I've said this for years, is everything.
Most cases are over by the time you've sworn the panel because you understand, I don't care how good you are as a lawyer, you're never going to change people's view or their prism.
For what they look through and who they are.
So you have to basically pick a jury or deselect a jury that'll give you your best shot.
So I haven't seen their jury, but I will tell you that so far, the way the evidence is unfolding, it sure is a compelling argument for a not guilty.
That, I think, is probably where it's headed.
Like I said, I'll circle back to what I told you before.
Cops get a presumption of innocence that a lot of other people don't get.
That's true.
And they don't always deserve it.
But I feel like in this case, come on.
The woman did it.
She made a terrible mistake.
She didn't have a history of negligence on the force.
You can show this is like a hothead, or she never had any business having the badge.
Not only did she resign right after this happened, but the chief of police was forced out.
It was like, okay.
By the way, the New York Times is reporting that.
There was a lawsuit against Dante Wright's family raising questions about whether Dante Wright, in May of 2019, the woman filing the lawsuit claims that Dante Wright shot her son in the head in Minneapolis, leaving him severely disabled.
I mean, I don't know that the jury's going to hear anything about that, but, you know, it's the cops walk up to these defendants not knowing what they're dealing with, but they always have to presume the guy's got a gun and is willing to use it.
Well, I saw that today, and most probably that will not.
Come into evidence because unless the cop knew or had some indication that they knew about that incident, the judge would probably rule that that's inadmissible.
But having seen that, it certainly, I think, would give pause to a prosecutor if they knew about that when they were filing the case and what charges they were filing.
I mean, that's when you get back to prosecutorial discretion.
And part of the argument you've kind of implicitly made here, Megan, is why.
Why are they exercising their discretion in this way on this case?
What is the motivation for that?
Is it because they want to seek justice or are they pandering?
So that's a.
He's a political hack.
I mean, he is.
He's a political hack and he's the AG there and he's the one who insisted on jacking up the charges.
And now he wants to push for a jacked up sentence if she's found guilty.
It happened in the wake of George Floyd and it was in Minnesota.
So all that, you know, Temperatures are already up and the nation is stressed.
And that was reflected, I think, in her reaction to what she did.
But we still need to, you know, the law is the law.
And not everything's a crime just because it's awful.
And she and the city will be sued.
I think they already sued.
And they'll get millions of dollars.
That's, to me, the remedy here a civil lawsuit, which is going to go the way of the family.
More with Mark Garrigos.
We're going to pick up Jussie Smillet right after this break, who is represented by his firm.
Ooh, that's exciting.
And remember, you can find the Megan Kelly Show live on SiriusXM Triumph Channel 111 every weekday at noon East.
And the full video show and clips by subscribing to our YouTube channel, youtube.comslash Megan Kelly.
If you prefer the audio version, a podcast, just go ahead and subscribe, download for free on Apple, Spotify, Pandora, Stitcher, or wherever you like.
Subscribe now because we have a whole true crime week coming up in the week leading into Christmas.
And one of the cases we're going to do a deep dive on.
Is Scott Peterson.
So you just got a little preview.
So stick around.
So, Mark, Jussie Smollett, the trial is in deliberations right now.
The jury has had the case for about five hours by my count.
Two hours yesterday after closing arguments, and now they began this morning right after nine central time.
So, five hours, they're deliberating.
And just FYI, the Racial makeup of the jury is, let's see, they're white, the majority white, middle aged, one black man, one black woman is an alternate.
And they are now kicking around whether they believe Jussie Smollett was the victim of a hate crime or.
Made the whole thing up for favorable publicity.
So I didn't realize until preparing for this that your firm had a role in this case.
Well, I handled the case originally the first time it was dismissed and had, I violated one of my standard rules, which is I generally will not do a state court case, criminal case out of state, out of California.
I just, I think I'll do federal anywhere, but state court criminal, I always think is, Kind of a weird creature, so to speak.
But we did it there, got it dismissed.
I thought that was the end of it.
And then, lo and behold, the case was once again resurrected.
And I am kind of dancing on the head of a pin here because my New York partner, Tina, is trying it with local counsel Nenye.
And I was hoping actually that there would have been a resolution before this because the judge is kind of.
Indicated that he's issued an informal gag order.
And even though I'm not on the trial team this time around, my partner is.
So I'm trying to dance around that.
I will tell you that I thought it was resolved fairly last time.
I have my own theories as to what's going on right now.
But since there's an informal gag order, I'm gagging myself.
But I have a lot to say.
And after a verdict or a resolution here, I'm happy to fill you in as to what I really think is going on.
I accept.
You mean with a lengthy deliberation or with the fact that charges ultimately come out?
No, with why this was resurrected, why the case was resurrected, kind of the players involved in everything that has transpired.
I think, frankly, it's outrageous that he's on trial again for the very same thing that it was already resolved on.
What punishment did he face the first time around?
Well, the punishment was he was, the case was dismissed.
He forfeited $10,000, which was the Basically, the 10% of the bail and had performed some community service.
So, those were all the things.
That's nothing.
He deserves, I don't think he belongs in jail for a long time, but he deserves to be punished.
He made this whole thing up.
He undermined legitimate claims of racial attacks.
He did more to damage Black people who genuinely get attacked by racists than anybody's done in a long, long time.
And he should face trial and be punished.
Okay.
So, you and I can agree to disagree.
I like it when you can't argue.
Yeah, I was just going to say, when I'm not muzzled, I'm happy to respond to all of that, including the fact that he's maintained his innocence, testified that it didn't happen.
And the only thing.
So does OJ.
Yeah, well, the OJ, I always say the jury got it right in both cases in OJ.
I understand that.
I understand that the proof argument in the OJ case, but that man killed his wife and her friend, Ron Goldman, and there's absolutely zero doubt in my mind.
And the civil jury did their job.
That's right.
Exactly right.
All right.
So we'll table Jussie Smollett and we will accept.
Your invitation to come back and discuss it.
I do think it's five hours is actually not that long because they have a lot to go through.
And I don't think it's too early to be drawing conclusions one way or the other.
People who think it's clear are like, why didn't they come back two hours?
But I think, out of respect for the process, a lot of juries just want to go through the evidence, go through the testimonies, and you never know if there's a whole lot.
Megan, that's I've had jurors say that in high profile cases.
I remember in a case I tried in Santa Monica 20 years ago that I asked them why they were out.
They came back and they acquitted the client across the board.
And they said, Well, what were you hung up on?
They said, We really weren't hung up.
It's just it's a high profile case.
We didn't want people to think that we were just going to come back not guilty immediately, a la OJ.
So jurors are aware of that, they get that.
Yeah.
There is a question, an interesting piece over on National Review today about whether Jussie Smollett should face perjury charges.
Because to people on my side of the aisle who think he's clearly lying and have been listening to the police chief and everybody all along, they conclude what he said on that stand was so patently false that he should be facing charges for it.
I mean, there's no question either he was lying or those two brothers were lying.
Both cannot be true.
So the idea that you're going to keep torturing me with this when I can't respond, because.
Well, let me ask it this way.
Let me ask it this way.
I don't want to get my poor partner.
In trouble, who's still in trouble.
How unusual is it?
Now, I won't forget Jesse.
How unusual would it be to, if there's an acquittal in a criminal case, for the prosecutor to then come back and charge the man acquitted with having perjured himself?
Well, let me give you an example that happens more often.
In federal court, where you have sentencing guidelines, if you get on the stand and testify and lose, you get your sentence enhanced.
I mean, that's because you did not accept responsibility.
You basically obstructed justice.
You lose three levels of acceptance.
So it happens in the reverse all the time.
And it shouldn't be that way, but it is because you've got an absolute right to go to trial, force the prosecution to prove their case.
You shouldn't get punished when you go to trial and try to prove that you're not by taking the stand, which is waiving your Fifth Amendment rights.
So I take the opposite.
In fact, it reminds me of when people say, How do you sleep at night knowing that your client is guilty?
And I said, I don't lose sleep over that.
I lose sleep over going away when I've got a client who I believe is innocent.
That's when I lose sleep and engage in alcohol therapy.
Right, 100%.
You know, when I went to law school, I used to be that person.
I wanted to be a prosecutor.
And there was a very well known defense attorney.
You never would have guessed.
There's a very well known defense attorney who came in and started talking to us.
And the young, idealistic me actually asked that question How do you sleep at night?
Knowing that you're getting guilty murderers and so on off.
Waiving Fifth Amendment Rights 00:15:05
And he answered it the same way you did.
I come around, I'm definitely more prosecuted, prosecution oriented still, but I love the role that criminal defense attorneys play.
And it is critical to do process to the nation standing on the stilts upon which it was built originally.
And I hate that it's being eroded more and more in various settings.
And you sort of get railroaded for ideology if without a defense lawyer.
You know, it's an interesting flip that has taken.
Place.
You know, I made my career basically in the 90s defending Susan McDougall, who was Bill and Hillary Clinton's erstwhile business partner in Whitewater.
And I tried her case in Santa Monica.
I tried against the Office of Independent Counsel for an obstruction of justice.
We won in Little Rock against Ken Starr.
And all the arguments that we used to make and that the Democrats used to make in the 90s about an Office of Independent Counsel and a prosecutor who had political motives.
Well, now you see.
Those are the same arguments that President Trump was making.
Yeah, it's all been almost identical.
And the Democrats were all of a sudden embracing law enforcement.
All right, hold on.
I'm standing you by there.
There's much, much more to discuss, including Alec Baldwin, Michael Jackson.
We'll do it right after this quick break.
All right, let's talk Alec Baldwin because I did listen to your Reasonable Doubt podcast with Adam, where you talked about that.
And as usual, you were fascinating on it and had some very strong thoughts on Alec's decision to come out.
And fight the PR war before the legal war, which is the far more important war, has been settled.
You can't stop these huge egos, you know, from going out there and doing what they believe is best for them and the brand.
Now, I want to play for the audience the section I heard you taking particular issue with on the question of whether he feels guilty.
Listen.
No, no.
I feel that there is, I feel that someone is responsible for what happened.
And I can't say who that is, but I know it's not me.
I mean, honest to God.
If I felt that I was responsible, I might have killed myself if I thought I was responsible.
So, why did you not like that?
I look, there was an easy way to thread this needle if you're insistent on throwing yourself on the grenade, as obviously he is.
The you say, Do I feel guilty?
Yes, I feel horrible guilt in a moral sense, but legally, do I feel responsible?
No, I would never have done this.
Blah blah blah.
I mean, there is a way to thread that needle.
This response.
He is going to get, you know, I don't wish a criminal prosecution on anybody in the world.
I mean, it's the worst thing in the world to go through.
But he's going to have this thing at a very baseline level jammed right back up at him in civil lawsuit, deposition, all kinds of ways.
And it's a horrible, horrible look.
And by the way, you would mention Scott Peterson in the GMA.
As we're talking right now, as we speak, the judge in Mr. Smollett's case.
Is apparently reconsidering the GMA interview there.
I mean, one of the things I'm going to have a, and I had mentioned Susan McDougall, one of her kind of bet noirs in her prosecutions was the GMA interview.
So, God knows if you're a criminal defendant, that's the axis of evil is to ever get on the GMA, I'll tell you.
Do not do the GMA interview.
Anything but GMA.
You know, GMA is like they're big, ABC in general is very big on crime.
So, that's why they get all these exclusives because they've made that part of their beat.
What would you do with that?
Like, if you had Alec Baldwin on the stand and you were representing Helena's family, you know, she was a cinematographer who got killed, or some of the other guys that filed lawsuits who witnessed it for emotional distress, what would you do with that?
There's a lawyer who's co counsel, I think, with Gloria on one of these lawsuits, and I know exactly what they are going to do with it.
They're going to take that, they're going to jam it right back up.
What do you mean you don't feel guilty?
Who do you know that was responsible if it wasn't you?
Why are you saying that?
Why are you shirking your responsibility?
By the way, Every actor from John Schneider on the right to George Clooney on the left has already said this is an impossibility if you were careful.
Blah, blah, blah.
They're going to do a tap dance on him.
And by the way, he's going to walk himself into, you know, they've only got a tower, apparently, if you believe what's being reported, of $5 million in insurance.
He's going to walk himself right into blowing through that tower and being personally responsible on top of it.
So I don't know what he's thinking.
I don't know why they think.
That image control is job number one.
Job number one is to keep you out of harm's way criminally.
Job number two is to deal with the civil liability.
Job number three is to make amends morally and ethically for your role in this horrible, horrible situation, which I don't think it was intentional in the least.
I don't buy any of the conspiracy theories.
But at the same time, how do you, you know, he could have said the obvious solution is it's very difficult for me getting up in the morning because I was the last person.
Who cocked that gun, whether I pulled the trigger or not?
I feel an enormous, enormous amount of guilt.
In a non legal sense, over that.
Right, right.
And the more he blames himself, the more our instinct would be to let him off the hook, right?
Like if you see him really beating himself up, right?
But he's doing the opposite.
I explain this to clients all the time.
Remorse is, you can't fake remorse.
You can't get up.
People can sense that, whether it's a jury or a judge or a fact finder, either you're authentic and you have remorse or you're a phony and you don't.
I mean, remorse, by the way, That tape you played earlier of the officer who shot Dante, that to me is real, authentic remorse and immediate angst.
Yeah.
So, Alec, he didn't have to do this.
He's been speaking with the police, right?
And so, in trying to stave off legal charges, that's the avenue.
Talk to the sheriff, have your lawyer there, make sure you're giving them all the information.
He appears to have ticked off the sheriff with that Stephanopoulos interview because let me play the soundbite that Alec.
Said that seems to be getting him in hot water because the sheriff has now responded publicly, which is not what you want.
Here's Baldwin on whether he actually fired the gun.
So I take the gun and I start to cock the gun.
I'm not going to pull the trigger.
I said, Do you see that?
She goes, Well, just cheat it down and tilt it down a little bit like that.
And I cock the gun and go, Can you see that?
Can you see that?
Can you see that?
And she says, And then I let go of the hammer of the gun and the gun goes off.
I let go of the hammer of the gun and the gun goes off.
At the moment, the decisive.
That was the moment the gun went off.
Yeah, that was the moment the gun went off.
It wasn't in the script.
For the trigger to be pulled.
Well, the trigger wasn't pulled.
I didn't pull the trigger.
So you never pulled the trigger?
No, I would never point a gun at anyone and pull a trigger at them, never.
Right, because that really will get me sued.
Well, now the Santa Fe sheriff has responded saying, and I quote, guns don't just go off.
So whatever needs to happen to manipulate the firearm, he did that, and it was in his hands.
What would you have thought if you saw that as Alex's lawyer?
I would have said I told you so, and I would have, you know, probably.
Pulled a Harlan Braun and resigned, like he did in Robert Blake's case.
I mean, you can't go out there.
This is not a public relations issue.
This is a criminal investigation.
You can't go out there and then inflame the very person who is investigating you.
You, as you said, you cooperate.
You try to show that you are anything but trying to provoke them.
But he's repeatedly done everything that he shouldn't do.
It's almost a textbook.
Case of what you shouldn't do when you're in harm's way.
Yeah.
He's not campaigning for an Oscar.
He's trying to keep himself out of jail and out of bankruptcy court.
Well, you know, he said the other day, I don't know if you saw it or if you've got the clip, he said, somebody told me basically I'm not in harm's way.
I don't know who that somebody was unless they're baiting you into being stupid.
So it's mind boggling to me.
If somebody's telling you that, I hope it isn't your lawyer.
Yeah, we haven't heard that from the sheriff.
Okay, so let's talk about speaking of famous clients with huge egos who.
Believe they know better when it comes to dealing with the press and how to handle law enforcement.
Michael Jackson, while you were dealing with the Scott Peterson case, you were representing Michael Jackson on the child molestation criminal case.
And I realized that ended because you had to focus on Scott Peterson, and Michael was like, only one person can represent me.
But that was crazy.
Actually, you were everywhere.
I'll give you a backstory there.
Originally, before that case was filed, I had had repeated conversations with the DA.
And his name was Tom Snedden, I believe.
Yeah, I remember him.
I kept telling him, This case is a loser.
I don't know what you're doing.
This Arviso family, I've investigated.
I have figured out, and I did it in real time for Michael because I'd represented Michael for years at that point.
And I knew that this was not a family that was going to end well for Michael.
And so I advised them, the Jackson team, they needed to kind of extricate themselves from this.
And sure enough, they did.
And then the Arviso family went to the same lawyer that had previously represented.
The accuser from 1993 that Howard Weitzman, when Howard was a grifter.
Can I just clarify something, Mark?
I just got a little lost there.
You told Michael to extricate himself from what really, like when he was friends with the boy and the family prior to them accusing him.
You were like, these are grifters, do not befriend them.
That was basically your take.
Yeah, I won't reveal the attorney client, but that's a pretty good synopsis.
And so then what happened was the Santa Barbara DA ended up.
Indicting him so that they wouldn't go to a probable cause preliminary hearing.
In California, almost all criminal felony cases are prosecuted by way of a preliminary hearing.
They didn't want the witnesses on the stand because they knew what we would do to them.
So they didn't end run, they indicted.
Well, when they indicted, they indicted him on a conspiracy.
That was the first count.
Well, I took a look at that and I remember saying to Michael at the time, I said, hey, this conspiracy has nothing to do with you.
This was my investigation.
Of the Arviso family, I'm going to end up having to testify in this case.
You need another lawyer, which is when we brought in Johnny Cochran, brought in Ben Brofman, my good buddy Ben.
Yes, because you testified.
I remember that.
You testified in the case.
Not once, but twice, that I was the one who did the investigation.
You couldn't blame Michael for that.
I was the one who was any so called conspiracy, which was kind of manufactured by the prosecutor, was at my behest.
I see, because they were like, Michael, you've been investigating this poor family, this poor young child, and you were like, it wasn't him, it was me.
So you couldn't represent him.
You were a witness.
I was a witness.
And like I say, I didn't testify just once in front of Judge Melville and the jury.
I testified twice, and I'll never forget the second time saying something which that jury found to be very humorous.
I think I was mocking the prosecutor.
And I turned to Pat Harris, who was then with me, and I said, this jury's never going to convict him.
This is a laughing jury, is an acquitting jury.
That's an interesting rule.
So, and you were right.
They did not convict him.
But of course, the stories about him would continue.
Well, yeah, because as you pointed out, the family had to like, they'd sued other people.
Like when you see these vexatious litigants who sue over and over and over again, it's like, okay.
But the accusations against him would never stop.
And I've been dying to ask you about this.
And I use, you know, a lot of our listeners are just listeners, they're not watching this on YouTube.
So I'm using air quotes the documentary.
About Michael, that was on HBO, and what you thought of those two accusers, James Safechuck and Mark Robson.
I'll tell you what I thought about that documentary.
I came very close to suing.
I came very close to suing in that case because I remember Adam actually on our podcast had played a clip from the documentary and they made it seem like I was saying, I'm going to land like a ton of bricks on top of these accusers, blah, That isn't what happened.
What the documentary filmmaker had done was he cut and spliced a press conference I had done.
The press conference was because.
When I picked up Michael from Vegas and took him to Santa Barbara to surrender, the air carrier, the private charter, had installed a pinhole camera that had spied on my attorney client conversations with Michael.
Yes.
So I, you know how I found out about that?
Greta Van Slustren called me the next morning and said, There's a guy who's shopping, a lawyer who's shopping your conversation on the jet with Michael for a million bucks.
And she gave me the name.
I called the lawyer.
I said, Are you out of your mind?
You can't shop this.
This was an attorney client.
And he said, My client thinks he's won the lottery.
So I went to court.
I got a restraining order, came outside, and said, I'm going to land like a ton of bricks on you when you violate the attorney client privilege.
The documentary maker cut and pasted that to make it seem like I was talking about the accusers, which I wasn't.
By the way, that guy who we got the restraining order against.
Was later prosecuted federally, convicted.
And I got a $25 million judge or $22 million judgment against him for that as well.
Well, the Court of Appeal reversed it and said that that was excessive.
I'm sure the guy doesn't have $22 million anyway, but it's a moral victory.
I can't believe it.
Your life is so fascinating.
You've done everything, you've represented everyone.
Excessive Force Reversed 00:02:23
So I saw that documentary and I was like, okay, it doesn't look good for Michael, that's for sure.
But Because I am a lawyer at heart like you, I needed to know more.
So I started digging and digging and digging.
And then I found all this stuff in particular about Wade, about the lies he's told in his civil litigation against the Jackson estate, about how he denied having written and shopped a book about Michael with laudatory things in it.
And then it turned out they found it.
They got it from like Random House or one of the publishers.
So he lied.
He got caught lying under oath at his deposition.
Then they demanded copies of said book from his computer.
He said he didn't have any, or he basically lied at every step.
And then they proved that he had copies on his computer that he tried to write over.
I mean, he was lying all along.
And the other guy, James Sagan, every single point.
And that documentary maker should be ashamed of himself.
He didn't mention any of it, Mark.
He didn't mention any of it.
Exactly.
It was completely sanitized, it was a complete rewrite of history.
But, you know, that's, I hate to say that that's emblematic.
But it certainly seems to be emblematic of what's happening in America right now and with what I think people on the right like to call mainstream media.
But it's really kind of abhorrent as to what's happened with journalism and so called journalism and the docujournalism.
Well, then you get the imprimatur of Oprah at the end, like interviewing the documentarian, like, oh, tell us all, just as truthful as we think you are.
Are you even more truthful?
Your brilliance shines.
It was.
This is bullshit.
I don't know what happened between Michael and either one of these men when they were younger.
I don't know.
No one knows.
We weren't there.
But, well, they know.
But the documentarian, again, air quotes, had an obligation to include that information about those two accusers because the other guy, Safechuck, had just been hit, I think, with a $500,000 lawsuit two weeks before he came out as an accuser.
You know, it's like, now maybe that doesn't make him a liar, but we deserve as an audience to know.
We deserve to know.
And, I go on this tear a lot, Mark, because I hate the absence of due process and trial by media, even though I'm in the media.
And what I hear from everybody is, though, yeah, but he was a molester.
Yeah, but he did it.
Chris Cuomo Media Treatment 00:15:41
Yeah, but it was a long line of boys that he molested.
And I don't know whether that's true or not.
I actually don't know whether it's true.
I heard the same things everybody else heard.
People would say, Would you take your son?
Because when I was representing Michael, my son was 10 years old.
They used to say, Would you take your son Jake to Neverland?
And I said, Well, actually, I did several occasions.
Yeah, but did you let him stay overnight?
I don't know.
I don't know anything about the other accusations.
I do know that the accusations, when it involved the case I was dealing with, were ludicrous.
But what about that, right?
Because I would not allow my son to spend an overnight with any parent, with any grown up.
You know, I would like, That's weird.
And you shouldn't.
And Michael was a large child.
I mean, I've read you say that too.
But still, you just don't let your six year old spend an overnight with a grown up under any circumstances.
But what do you think?
Like when you think about him, do you believe you said you have a sixth sense?
Do you have a sixth sense that he was capable of it?
No, I really didn't.
I mean, he just, there was a childlike naivete on his part.
And by the time I got to him, he had been, you know, you're talking in the 2000s.
This was not the same Michael Jackson that was in the 90s.
At least as reported to me.
And I represented him for a couple of years.
And every encounter I had with him, he was just, I thought, he'd just been pilloried.
He'd been beat up, basically.
And it was, I thought, awful.
I mean, it really kind of made you sad.
I mean, I was a huge fan in the 80s.
And I just didn't think he had kind of become trapped, so to speak.
And it was an awful thing to watch.
Putting tabling for now the allegations against him since we don't, we're not going to resolve those here.
Do you think that there is his situation and what happened to him personally was analogous to what happened to Elvis, you know, like that level of fame, attention, grifters?
I think it's, I think that's exactly it.
I see this play out, you know, one of the, I represented Chris Brown for about 10 years.
And Chris, I was always worried that would happen to him and it did not.
I mean, he kind of, Pulled himself out of all of that that he had been involved in.
And you worry when somebody reaches fame so early and on such a magnitude that what it does to you.
And so I think that's an apt comparison by you.
And I think that it's interesting that he had that relationship with Elvis's daughter as well.
Yeah, that's right.
There are just certain people who reach this bizarre level of fame that is.
In no way healthy.
I would put Tom Cruise in that same category too.
I don't think his weird Scientology rants are totally unconnected to his incredible fame and success and just what it does to a person.
I would not wish that for my children, for anybody I care about.
I've walked down the street with various clients.
I'll give you a couple of examples.
I've walked down the street, I represented Mike Tyson for a period of time, and I've walked from my office with Mike down to another building to do a mediation.
And I've seen what people do.
And I've walked down the street with Michael.
I've walked down the street with Colin Kaepernick.
The level of fame and what happens, and the fact that you really can't go out, you're outside without stopping traffic, literally, and people kind of besieging you.
I mean, it's on a level that it's really hard to capture and make people understand for certain people when they get to a certain level of fame and.
And kind of notoriety.
Would you say that probably the most famous person you've represented and seen that with is Adam Carolla?
I feel like that's.
You know, I will tell you something about Adam.
I often say, Adam always says that he thinks about me when he sees anything legal.
In the last six or seven years that we've done the podcast together, I've learned more about human nature.
He's a great sociologist and really kind of social or cultural anthropologist.
His observations are so spot on.
He's got such a way of viewing the world that is just You know, that you rarely come across somebody like that.
It's true.
He's one of those people you just want to shut up and listen to.
It's just like, go on, just keep going because he has a way of capturing what's happening in the nation that's very unique.
But jumping back, because I know you didn't represent him, he's just your friend and co host.
But I do, can I just ask about Michael Jackson?
Actually, I did represent him, but we won't talk about it.
Oh, what'd he do?
That's a whole different sense.
That's a whole different thing.
I have represented Adam.
So I'm going to get him, I'm going to do a Yeah, you get him in here and we'll cross examine him.
I'll see you.
We'll test your chops and see what you got.
I still got it.
I do.
I have to.
You're raising boys.
You got to, right?
That's right.
Oh, my God.
100%.
Although my daughter's just formidable.
I mean, I always say, like, they could just send her down to Guantanamo.
She could get anything out of anybody down there.
So when you were with Michael Jackson, since you spent so much time with him, like, what was he like?
Would you mind just describing it?
So he was childlike, but like, can you expand on it?
Because I'm genuinely curious what that would be like.
By the time I got to him in the 2000s, I spent multiple times or multiple days at Neverland.
So I watched him there.
I watched him when he was camped out in Vegas as well.
He was struggling.
I mean, I think that's the best way to put it.
He was struggling with all the things that were happening with the accusations, he was frustrated by it.
And I kind of, there was a lot of empathy I had for him.
One of the things that's hardest about doing the kind of work that we do is when you've got people who are in the eye of a storm, it's very hard to try to get them centered because it's kind of an existential threat.
The criminal prosecution is there's, I often tell clients, at least with a sudden death of a loved one, you have the ability to mourn, to have a funeral or some kind of a ceremony, awake, and then you get to move on, you get some kind of closure.
You never really get.
That in a criminal case.
And so that's what I witnessed.
And it was awful to watch.
It's just a strain, it's a drain, and it's just a real, real painful thing to watch somebody who is so creative, who is so brilliant, who is such a genius in one area to have to deal with something that is so foreign to them.
Right.
And so ugly.
I mean, just terrible, terrible accusations.
So much more to go over with Mark.
I could do this all day.
I could keep you here for 10 hours and I'd still have more to talk about.
We're going to pick it up after the break.
I want to ask Mark about CNN, where he worked for a while.
What does he think about how they are today?
Okay, so Mark, I used to watch you for years on CNN, back when CNN was watchable, and you'd give your legal analysis on everything.
And then you were gone one day, and I was like, somehow you were linked to Michael Avenatti.
And I was like, okay, he must have been temporarily insane because Mark Garagos is way too smart to associate his brand with that lunatic.
So, what happened?
You don't work there anymore.
What happened?
Why would you ever have associated with that nutcase?
Well, I represented Michael.
So, as a client, I mean, he had a DV case and I represented him and I had known him for a number of months.
And then the case, as you mentioned, happened in New York.
CNN, in their infinite wisdom, decided to cut and run.
In fact, I think I famously called them the cut and run network.
But they were already kind of descending into this polemic that they've decided the path they've decided to go down.
I think you'll.
There was some kind of irony that you would see Anderson sitting with Tubin next to him as they're announcing that Cuomo would be suspended.
And now I'm seeing where Mr. Zucker is being pilloried for his handling of the situation.
And I think the writing's on the wall.
There's going to be a shakeup.
And the largest stockholder in their merger there has already said they need to get back to what they used to do.
Which is Malone of the Discovery Channel.
So I think within the next six weeks, you'll see a reboot there.
Given what's happened over there and the ratings and everything else, they're not long for this world in their present kind of composition.
Are you shocked?
I mean, I've said publicly, I used to watch CNN when I was getting ready for the Kelly file.
I used to have in my office, I had CNN on, not Fox, because it was like O'Reilly before me and who I think is enormously talented, but he's not, you know, if you want to get facts, at least back then, you would put on CNN, you would put on Anderson Cooper.
And that's gone.
Even Anderson, gone.
They went hard partisan during Trump, and it was way more opinion from the anchors than I ever wanted.
And it was all uniformly anti Trump, anti Republican, and it remains thus to this day.
I wonder, having come from the belly of the beast, what you think when you watch it now?
Well, I often used to say, I thought there was some kind of, I hate to psychoanalyze them, but Zucker, as people tend to forget, was at NBC when Donald Trump was kind of anointed with the Apprentice series.
And I think that there was something going on where he just decided to go all in on the anti Trump network and turn it into that.
And, you know, at this point, like you, I have to go search for BBC, sometimes Al Jazeera, to try to get any kind of a factual or what's going on in the world.
You just can't find what it used to be 20 years ago.
I mean, it used to be that you had Larry King on there.
For many years.
And I always thought that was a fascinating show, which is why I did it, because it was long form.
People would talk kind of like what you're doing now.
And you would get to at least hear things that weren't just like a Twitter bite of 140 characters.
You get people to talk, you'd have a give and take.
They could have different viewpoints.
And you would hear that.
That to me is more interesting than somebody just going on a polemic with two other people who are kind of their cheerleaders.
Yeah, you might learn something.
You might be intellectually stimulated instead of just outraged all the time.
How about that?
What did you make of it?
I mean, right.
So CNN cut and run because you were sort of with Avenatti when he got caught up in that thing to extort.
I was there and was trying to, mind you, I had a relationship with Nike.
I knew Michael and tried to kind of mediate a situation that I thought would turn out bad.
I mean, I've got a, we could do a whole hour on what happened there, but.
Like I say, Michael was also a client.
I don't want to denigrate him in any way, shape, or form.
I'll do it.
Yeah.
I mean, you will do it, and I'll sit and just listen to you.
Well, so he got, he wound up getting charged criminally.
I mean, he had many legal problems.
This is just one of them.
But it's funny because you say CNN cut and run.
He got a mistrial.
He went pro per or pro se federal court in Orange County and got a mistrial based upon prosecutorial misconduct.
It's actually up in front of the Ninth Circuit now as to whether that's once in jeopardy.
Because normally, if you get a mistrial and you request it as a defendant, you don't get a once in jeopardy, meaning that you can't be tried again.
But there is a Kind of a sliver of the law that says if you're goaded into asking for a mistrial by the prosecution, that can be the one instance where the prosecution can't try you again.
Well, whatever it is, he's a bad man.
But you're not.
And CNN did cut in big just because you were in a meeting with him.
That's the end of your relationship after what, a decade?
They'd been making money off of you?
Closer to 20 years.
I mean, I will tell you, it was really.
And I had always resisted.
Being a contributor, because I always felt that being a contributor meant that I would have an issue with kind of advocating for clients because some clients do not belong on CNN in years past.
I would want them either on a morning show or I would want them somewhere else in terms of where I thought they were best.
But finally, they were kind of relentless, and I did take a contributorship with the caveat that I was able to do other things.
And if it was client related, they had no input whatsoever.
And they just Cut and run like nobody's business.
I think because they felt that they, you know, there was a lot of people who were second guessing themselves about Michael when that happened.
And well, that was smart of them to do because they expressed no skepticism about him and his ridiculous claims about Trump and so on.
I mean, I was at NBC at the time and I had him on and he was expecting to get the same treatment from me that he got from the mainstream media.
And I really felt like a simple Google search would have served him very well in misunderstanding me.
You know, and getting over his misunderstanding of me.
And I gave it to him pretty tough, and it's fine.
I gave it to the other guy who was on the opposite side of him, tough too.
This is the Stormy Daniels case.
But it was very clear that he was, this is not an honest lawyer, and what he did to Kavanaugh was unforgivable.
But I think the fact that CNN promoted him and so on, they felt so guilty, they didn't need to take it on you just because he was your client.
You were in this one meeting with him.
And to me, now it's like they won't cut ties with.
Masturbator on the air, Jeffrey Tubin.
How much did Chris Cuomo have to do?
Don Lemon, credibly accused by a guy of Don allegedly fondling his own genitals and then rubbing his hands all over this poor guy's face in a bar.
I had him on the show.
There's an eyewitness.
I feel like what is the moral handbook that they are following over there?
Like I say, I think that everything that I've been hearing, I still have friends there that I've known, like I say, for decades.
And everything that I'm hearing is that Zucker's not long for.
The job, and that people are not happy with what's happened to it.
And, you know, it's not exactly unpredictable.
They kind of went all in on the Trump mania.
Outdoor Dining Emergency 00:06:50
And obviously, once Trump was gone, what are you going to do?
So the ratings have cratered.
It's really, you know, I'm old enough to remember when they would get a 10 share.
And now you're talking below a one share.
So, I mean, that's astonishing.
I read the other day where Chris's The nine o'clock show sometimes was getting 900,000 people.
I mean, there was a time when CNN, you could just have the color bars on there and you get 900,000 people.
Oh, yeah.
I mean, when I launched America's Newsroom with Hemmer in 2007, we created that show from 9 a.m. to 11 a.m.
We'd get around 1.3 million, and we were thrilled.
And the company was thrilled with that at nine in the morning when everybody's at work.
It was like, great.
And now, I mean, all this time later, for the 9 p.m. on CNN to not even be cracking a million, it's embarrassing.
I mean, they're always like, in the wake of his downfall, they're like the highest rated anchor on CNN.
I'm like, you should not be bragging about that.
You should not be, don't call attention to the fact that he was your.
And when you have to resort to talking about the demo, then you really know you're desperate.
Well, the demo actually is relevant because that's what they basically advertise on.
That's how you get paid.
But the demo numbers are embarrassing when you take a look at them in absolute terms.
I mean, Fox's demo numbers, meaning under 25 to 54 year olds, are higher than CNN's overall number, the number of overall households in the nation that are watching on many hours.
So, yeah, they're going in the wrong direction.
And I hope it's true that they're going to get back to news because.
We need a channel that's a little bit more centrist.
I think people are crying out for that.
People want that.
People want that kind of thing.
Just give me the news.
Let me go and, you know, where 20 minutes I can watch and understand what's happening in the world.
And by the way, not everything is America centric.
I'd like something in the context of the world.
Well, forget it.
You're not going to get that on cable news.
Foreign news doesn't rate, which is why you rarely see it.
Okay.
I want to ask you about another avenue of cases that you've been filing when it comes to.
These COVID restrictions.
You're in the People's Republic of California, where the restrictions have been, I mean, I don't know how you're dealing.
And so, in addition to being a lawyer, you're a restaurateur.
And tell us about what you've been trying to do and how it's been going in the courts.
Well, it's frustrating because we won a victory at the trial court level in Los Angeles.
We got a judge back when, back, I want to say in November, when we have an unelected county health.
Officer named Barbara Fuhrer.
Without any evidence whatsoever, without any data whatsoever, we're talking a year ago, she shut down outdoor dining.
Now, mind you, I can sustain it as a restaurant, but most restaurateurs can't.
I mean, there are 30,000 some odd restaurants in LA County, and a number of them went out of business due to the COVID shutdowns.
Well, then we went to and we moved to the outdoor dining, and that was working and it was working well.
People were able to survive.
Not the least of which because of some of the funding that took place.
But then she just decreed there was going to be no more outdoor dining.
And we sued.
And sure enough, we got a judge in the writ court who ruled after basically issuing three orders to show cause, and the county could not respond.
They couldn't point to a single piece of data, a single study that showed that COVID was being transmitted outdoors by dining.
So he enjoined them.
Well, we ended up going, they got to stay at the Court of Appeal.
That was reversed.
I've been up at the US Supreme Court and just within the last five days, they denied the US Supreme Court denied the petition.
But one of the things that's happened is Justice Gorsuch has basically called out this case, this 100 year old, 120 year old case named Jacobson, and said that it's been given a towering presence.
And I couldn't agree more.
And that's the fight that we've been fighting that basically unelected bureaucrats from health departments are decreeing what.
People can do or not do.
And that all of that is predicated on this state of emergency that our governor has announced, I think, going on 20 months ago.
We're still in a state of emergency.
In California, which is the only basis upon which the county health directors can do what they do.
It's so crazy because you're out there in California up until recently.
I've been living in New York for 20 years almost.
And the mayor of New York just on his own decided that five to 11 year olds must have mandatory vaccinations in order to eat inside any restaurant there.
You have to double jab your five year old to eat in a restaurant, to go see the Rockettes, to go to a movie theater, to go to the gym, whatever, go see the Knicks.
It's Ridiculous.
They've been going.
They've been going to all of these events and the rates didn't spike.
The spikes come into the Northeast now because it's winter, right?
That's the way it goes.
But the children are not to blame.
The children aren't a major factor in any of this.
So we have these local legislators who are drunk on their own power.
Like no dining outside.
That's, think about that.
You just kind of, it's like, no, that's insane.
That's insane.
COVID's not spread outside in any meaningful way.
The only thing, I mean, if you saw these stacks of paper that, That we file back and forth in the briefing.
The only thing that was ever cited by the county in defense of this outdoor dining ban was what I would characterize as an anecdotal example of a person in Wuhan who had said he got it and he thought he got it outside.
That is what we're basing.
It's different.
He was eating a bat.
That's not the same.
I just feel like it's gotten so out of control.
I love to see the lawsuits because they're drunk on their own power.
De Blasio is out of here at the end of this month.
His reign, thank God, is ending.
And what they say is he, I mean, talk about delusions.
He thinks he's going to run for governor.
It's like, so, hello, earth to Bill.
And that he wants to shore up his support with his far left liberals by imposing all sorts of draconian orders on the people right before he left.
And he's doing it.
And now all these people think about the people who come from Europe with their kids.
You know, they come to see New York the way we go to London, the way we go to Florence.
And now, What are they going to do?
They can't take their kids anywhere.
They can't do anything.
Their trips are off for nothing, for an Omicron, which, yes, it's more contagious apparently, but it's not killing anybody.
There have been zero deaths from Omicron.
Social vs Courtroom Justice 00:02:39
Well, and the problem is when you ask for any kind of data, when you ask for any kind of anything, just show me something, they can't answer you.
And that's a very frustrating situation to be in, both as a lawyer and as a restaurateur, as you call it.
Restaurants are on a very thin margin to begin with.
You can't just continue to destroy restaurants and destroy the small businesses.
And that's unfortunately what we've got.
And it's only a matter of time before this catches up to us.
I've said before, this is not going to end well.
All right, last line of inquiry before I let you go.
You've been so generous with your time.
I think what we saw in the Rittenhouse case was what happens, I said this on the air, when social justice meets courtroom justice.
That to me, the courts are still the one place that haven't been totally co opted by the far left social justice warriors who just want identity to matter and not facts, not evidence.
And it's a comfort to me, you know, as somebody who did practice law for a long time, it's a comfort to me.
But when I see what they're teaching in law schools, there was just some case.
Oh my gosh, what was it?
One of the universities, one of the law schools now is requiring people to have an affirmative statement of how they're going to be anti racist and, you know, pursuing it.
And it's like, what?
Wait.
It's none of your business what their political persuasions are, where they stand on these social issues.
Just teach them the law.
I worry about the up and coming generation of lawyers and whether we're going to be able to keep that divide.
Between social justice and courtroom justice.
What do you make of it?
Look, I'll go back, we'll come full circle to McDougall again in the 90s.
I was complaining then that that was kind of, at least by the Office of Independent Counsel, a political show trial.
And guess what happened?
Then the script flipped, and sure enough, the same thing happened 20 years later, except now it was aimed at Republicans as opposed to Democrats.
And so there's plenty of blame to go around.
But the lesson to take away from this is the worst place in the world to try to.
Test out your social or cultural issues is in a criminal courtroom.
That's where that should be the one sacrosanct place where we, first of all, we have prosecutors who are making decisions that are based on justice as opposed to some other kind of calculation.
And it should not be a political calculation, it should be a criminal justice calculation.
Thanks for Listening 00:01:42
So I'm with you.
I share that.
We've got young lawyers, I've got some great young lawyers, and I've Experienced other young lawyers who I think could use a dose of, you know, my father, who was my partner for many years, used to say that one of the things he thought that the criminal justice system could use is a dose of the military justice system.
And I'd say, What do you mean?
And he'd say, Well, in the military justice system, you can be a prosecutor one day and a defense lawyer the next day.
And that's a great way to kind of weed out the ideological agendas if you have to understand what it is to prosecute somebody and you have to understand what it is to actually defend a human being.
I like that.
And conversely, any plaintiff's lawyer or prosecutor should be sued at least once in their life, right?
Be on the other side of it, feel the stress of what that can do.
Exactly right.
It should be a prerequisite.
All right.
So now I'll let you go.
But are you going to at least give me a prediction on how Jesse Smollett's going to come out?
Hung jury conviction equivalent?
No, but I'll call you.
I'll call you.
I'll call in your 1 800 Megan line.
Yeah.
833 44 Megan.
M E G Y N. I'll call you after.
All right, good.
I'm going to hold you to that.
Thank you, Megan.
I enjoyed this.
Same.
Such a pleasure.
Come back, please.
Okay.
Thank you.
Thank you all so much for listening.
Tomorrow on the show, we're going to have the Hodge twins.
This is going to be fun.
You're going to love these guys.
Meantime, download the show as a podcast and go ahead and subscribe if you would at youtube.comslash Megan Kelly.
See you tomorrow.
Thanks for listening to The Megan Kelly Show.
No BS, no agenda, and no fear.
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