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Dec. 23, 2024 - The Megyn Kelly Show
01:26:13
20241223_jay-z-accuser-inconsistencies-murder-one-for-mangi
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Welcome to Kelly's Court Christmas 00:02:39
Welcome to the Megan Kelly Show, live on SiriusXM Channel 111 every weekday at Noon East.
Hey everyone, I'm Megan Kelly.
Welcome to the Megan Kelly Show and a special Kelly's Court Christmas episode.
This kicks off our True Crime Christmas series for 2024.
Nothing says Christmas like true crime.
And we have two, count two, Kelly's court favorites to dive into many important cases with.
Jay-Z, Diddy, the Menendez brothers, and much, much more.
Joining me now, Arthur Idala, trial attorney extraordinaire and managing partner Idala Bertuna and Kamens and host of the Arthur Idala Power Hour on AM 970 in New York.
Also with us today, Mark Garragost, also extraordinaire, trial lawyer and managing partner of Garagos and Garagos and host of Reasonable Doubt, which is a great podcast.
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Welcome back to the show, guys.
Hello.
Happy holidays.
Oh, whoa, whoa.
And to you.
How you doing, Mark?
I couldn't be better.
How about you, Megan?
I'm great.
I love the holidays and I love true crime.
So this is everything that I adore coming together.
There's actually a lot going on.
You never know whether, you know, we go to these true crime Christmas specials, which always do well.
People are like us.
They are also into these stories.
Whether you're going to have an embarrassment of riches or a paucity of results.
The Flawed Second Trial Defense 00:15:18
And I got to say, it's the former.
Let's kick it off with Mark's biggest current case.
Probably not knowing Mark, but it's a big one.
It's all over the news.
Mark and I have debated it before.
Marcia Clark came on and she did not agree with you that the Menendez brothers should and possibly will be released.
Something bad happened for your clients since the last time we spoke.
And that badness was the LA district attorney, George Gascon, who was pushing to have them possibly let out early, lost his election.
Won't won't.
And the new guy, Mark, is not a fan of this push and keeps naming you in the press and saying you've been misleading everybody into thinking that they didn't get a fair trial second time around, that they weren't allowed to discuss the sexual abuse allegations, which he says they were.
He said they argued everything you want them to have been able to argue, and the jury rejected it.
And so he's calling you out, which suggests to me he's not on board and they may not, they weren't home for Thanksgiving, but they may not be home even for Valentine's Day at this point.
What do you think?
Well, look, He has said various things.
He has now, as we are discussing, has extended an invitation to meet, which is obviously something that I've been waiting for.
And I will point out where he is wrong and I will help educate him on the law and the law is.
And the facts are that in the second trial, imperfect self-defense was not allowed as a jury instruction.
So alone.
Imperfect self-defense is where you get a jury instruction where the jury can basically say, we're not going to vote for murder.
We're going to eliminate malice based on imperfect self-defense.
And that is the idea that you felt that there was danger because of the syndrome that you were exposed to.
In this case, back in the 90s, we had battered women's syndrome.
And I've talked to you, Megan, about the fact that I tried murder cases in the 90s where I used the battered women's syndrome.
Back then, it was not extended formally by the legislature to others besides intimate partners.
It was formally in 2004.
The legislature expanded it.
So the second trial, which the evidence started eight days after the OJ acquittal, there were some dramatically different rulings.
And those rulings are what affected the result by the jury.
That's on the habeas.
Then on the re-sentencing, you have, and he's talked about it, he being Mr. Hockman, that he has looked at thousands of pages of C-files.
C-files are the correctional files.
It's everything that these two gentlemen for the last 35 years, actually 30, because for the first number of years they were in the county jail.
It's everything they've done in prison.
And I will tell you that based on my investigation, based on the DAs who were involved in the investigation, who filed the re-sentencing memorandum, it's the most impressive book of accomplishments by anybody who especially it's amplified when you think about the fact that as of 2005, they had no hope of ever getting out.
They could have gone in one direction.
Instead, they went in the direction of starting programs.
Okay, so there's two different avenues that you're talking about.
You're trying to, first, you're trying to say the underlying trial was unfair to them.
They weren't allowed to present fully the defense of imperfect self-defense, meaning we'd been abused by our parents.
We actually did get ourselves worked up to the point where we thought we were going to be murdered by them.
That's why we murdered our parents on the night that we did, even though they weren't rushing after us with loaded guns.
We rushed after them with loaded guns given what we believed in our heads.
That's one lane.
And the second lane is model prisoners.
They've been there for a very, very long time.
They've done everything they can to rehabilitate themselves in the eyes of the law and the prisoners and so on.
And so either one of those tracks can get them out early.
Now, here's Nathan Hockman, the new DA.
This is fascinating to me.
He spoke with Deadline, and now he's given an interview to NBC as well.
But here's what he said in part.
Once I got up to speed, oh, first he says, once I get up to speed, I'm going to call Mark Garagos.
I'm going to invite him to come in and I'm going to let him make any level presentation he wants.
But he so far doesn't seem impressed with the argument.
He says, look, the assumption that the second trial, that the issue of abuse wasn't raised, he says that's because of Mr. Garagos' mantra, which the media has repeated.
He said, Eric Menendez testified in the second trial for seven days, probably if I had to guess, close to 40 hours of testimony where he went into great detail, as he did in the first trial, incident by incident by incident between the ages, I think, of six to 18 of what his father had done to him.
So the notion, again, that the mantra, that the sexual abuse was not explored in the second trial, that the judge kept out all the evidence actually isn't true.
Question by deadline.
So why do you think that's become so accepted?
Hockman, I mean, I've been doing this for 34 years and I've seen it.
The media is in search of simple narratives, conflicting narratives.
And so it adopted the Garagos narrative, which was smart, very creative.
It's basically that the trial was all about sexual abuse, that their response was because of sexual abuse.
It's that a conviction was only attained because the evidence of sexual abuse did not occur in the second trial, but did occur in the first trial.
And therefore, that the underlying conviction is wrong and should be fixed.
Very simple narrative.
What makes it a little bit more complicated?
And that's why the media would have to deal with additional work is what he says.
And then finally, he goes on to say, knowing the Garrigos narrative is absolutely wrong.
The issues that we will be looking at for the trial will be whether or not these two young men faced an immediate threat to their life.
Why they got to that point.
Mark, I don't like your chances suddenly.
Well, I really do like my chances because, mind you, this is somebody who has practiced criminal defense.
He represented, I believe, the Lee Baca, who was the sheriff here who was charged federally.
So once I point out to him where he's wrong, frankly, on this, once I show him and walk him through, and as you said, he's welcome to a fulsome presentation, which I plan on giving him.
I think he'll change his mind.
I think he'll understand.
What specifically?
Can you speak to that claim that they were allowed to testify to all the stuff that you said?
Can I make Mark's case for him?
That's right.
Go ahead.
Outsider.
Well, first of all, I have to just say, because Mark talked about battered women's syndrome.
And since it's a special edition of Kelly's court, I'm going to brag.
I actually, my very first murder case in the criminal defense attorney allowed for the first time in the United States of America, battered women's syndrome to be used against a man.
And they were two gay men and one killed the other based on a series of abuse and all kinds of abuse, financial abuse, emotional abuse, physical abuse, sexual abuse.
It had never been before anything more than husband and wife.
And this expanded it.
And Megan, it's been used very successfully, not to get people off, not to get people found not guilty, but as opposed to life in prison or 25 years in prison, it's a tremendous mitigating factor.
Reduces sentencing exponentially from life in prison to 15 years.
In my particular case, when I came into the case, the prosecutor said, all right, Arnie, I'll give you 22 years.
I mean, my guy totally did it.
There was no issue about it.
I'll give you 22 years.
And then I raised battered women's syndrome.
That's not going to work.
I'll give you 20 years.
And then the judge put on three experts who said battered women's syndrome is not just between a husband and a wife.
It can be through very different relationships.
And it is gender neutral.
It's all about control and power.
He wanted to plead into six years.
So that's where it matters so much.
1999, 1999.
It's exactly right.
And that was the first time they had expanded it from the idea.
Exactly.
And until the 2000s, this was not something that was recognized outside of the what we used to call intimate partners.
Well, you know, actually, I have my own story on this because when I went to law school, it was between 92 and 95.
And I did a little internship for a solo criminal defense practitioner, Mark Garagos.
See, I wasn't always prosecution-minded.
I'm going to have to stop calling you my pro host.
So I know I don't like it.
I object to my nickname.
Anyway, this guy had me on this case where it was two lesbians.
So it's kind of similar to your argument, Arthur, where I was saying we should argue battered woman syndrome on her behalf.
And there was a woman syndrome and there was a woman there.
It just happened to be that her, you know, deceased partner was also on her.
So we were, we were on the same path, my friend, and we did argue that.
And then I'll tell you the rest of the story later about the guy I interned with.
It didn't end well for him.
Turned out he was kind of a fan of the criminal law in a different way.
Anywho.
So back to the Menendez brothers.
I don't get how you're going to go in there, Derek.
I've got quite a bit about you, Megan.
That little tidbit might explain quite a bit about your tilt.
All right.
I was like, ew, I don't want to be with these guys.
I want to go on the other side.
I want you to explain what Eric wasn't allowed to testify to in trial number two, because the first trial was a hung jury and they got let off.
Then the DA brought the second trial against them for killing their parents.
And the narrative has been, including by you, that they weren't allowed to testify to all the sexual abuse that they suffered in the second trial.
It was much more limited.
Therefore, the jury didn't get to hear how awful life was under Kitty and Jose Menendez.
And you weren't allowed to really defend them in the way that you wanted.
So what specifically was denied that you think was erroneous?
I believe there were 51 witnesses who the defense called Leslie Abramson, who tried it admirably and who is still alive and was one of the great defense lawyers around.
Leslie had called 51 witnesses, including experts, including family members, who testified to the range of things that were going on there.
One of the things that sticks out to me is this idea that there was a rule in the household that if Jose was with one of the boys in a room down the hall, you could not go down the hall.
And that is chilling to me.
There were in the second trial, literally, I want to say 20 some odd witnesses who were not allowed to testify that could not corroborate what Eric was saying.
So you had this idea that by the time you got to the closing argument, you could allow, and this is exactly what happened, the district attorney to make a closing argument that said, oh, this is an abuse excuse.
These are rich kids.
They just wanted to inherit money.
There was no corroboration.
They were a bunch of liners.
In the first trial, you were able to corroborate.
You were able to put on the witnesses, including family members, including experts, who corroborated all of this.
And there was also a ruling and several rulings as to Lyle, which basically boxed Lyle in from being able to testify.
So there was a monumental change in the rulings between trial number one and trial number two, the witnesses that were allowed to be called in trial number one and trial number two.
And I look forward to presenting that because those are the things that are, to my mind, irrebuttable.
It's factual determinations.
Here's what Hockman, the new DA is saying, Arthur.
He says to Deadline, as I said, Eric Menendez was able to testify in great detail about all the sexual abuse he experienced.
He was even able to testify about sexual abuse Lyle experienced.
He was even able to testify about the fact that Lyle purportedly confronted his father, their father, about this whole issue, which is why they had some level of fear that their father was going to kill them.
All of that was presented to the jury, and the jury still convicted them both of first degree murder.
Now, does that sound to you like a DA who still is behind the prospect of taking another look at this case and possibly pushing to let these young men out?
Well, they're not young anymore.
Early.
Right.
No, obviously it doesn't.
But he's also a teenager who's just gotten elected.
But even though is he even sworn in yet as the DA?
I would think that would happen in the end, the beginning of the year.
We've got this weird thing in LA, the county charter.
He gets sworn in on December, I believe it was the 6th, which is unusual.
So anyway, he was, of course, my understanding is he was more of the law and order guy than the last guy.
So he's probably trying to flex his muscles a little bit that I'm not going to go easy.
This is right.
This second, as far as us New Yorkers know, the highest profile crime in LA right now.
So he probably is trying to send the message that we're not going to be going easy on anybody.
The question I think I have for Mark is, did that jury get the appropriate charge from the judge with the California equivalent of battered woman syndrome, battered person syndrome?
No, and that's the, that's the whole problem with the argument.
And by the way, he is, he being Mr. Hockman, is parroting the, and I understand parroting is kind of a pejorative, but he's adopted kind of a narrative of the, what I call, I jokingly say the 90s are calling and they want their DA's office back.
That's been the traditional mantra, if you will, of the DA's office.
And, you know, one of the things that Megan had mentioned that Marsha has and I have had spirited conversations about this.
Marsha was there in the DA's office at the time in real time in the 90s.
She knew what was going on.
She will, at least in the green room, before we get on to Megan's on-air thing, she will admit to me that of course they needed to win that case.
They had to win it at all costs.
The DA at the time was in the fight for his life.
And so, you know, there is a symbiotic.
But here, here is what she said to me on the air.
You were not there, but we had you on alone and then we had her on alone and I followed up.
Why the System Must Break 00:06:18
Listen.
I don't think they're going to get out.
I don't think it's going to happen.
I don't think anybody was that impressed with Gascon's position.
I wonder if people are thinking at all about the fact that there are others in prison serving a sentence of life without, which is what they're serving.
That means life without the possibility of parole, who are much less culpable.
I have clients that are serving life without the parole, without parole right now, who never killed anyone.
The defense is not, oh, daddy boinked me and mommy wouldn't stop him.
So I get to kill him.
It wasn't that.
The defense was, you know, daddy threatened to kill me.
I believe he was going to kill me.
Even if you think I'm unreasonable in thinking that, I genuinely believe it because of things he said and did toward the end.
That was their defense.
You have a greater awareness of abuse, child abuse, and the kind of trauma it inflicts.
And we are, I think, are more sensitive to that.
And that's a good thing.
But you have to remember that doesn't, that's not a license to kill.
It's so good to talk to you because I talk to your partner in crime.
He's not really, you just come on together sometimes.
Mark Garrick goes, but I know he's a friend and you guys grew up in the California legal system together.
And of course, he's representing them and is 100% on the other side and came on and totally convinced me that they should be let out.
Now I hear you talk, I'm like, ah, no, these are good points.
She got me, Mark.
And I think she got the new guy hoping.
Remember, Megan, you tilt that way.
So I'm going to bring you back to center.
But you got to get her point about all the other more deserving guys who didn't murder anybody who have to sit their asses in prison forever.
Two wrongs don't make a right, though, Megan.
Just because the system's broken there, doesn't even mean it should be broken everywhere.
And I think that's a famous that they didn't get lifetime movies made about them or what's his name?
Was it Ryan Murphy who just redid the higher profile case?
Yes.
Maybe it'll help the other people.
I'll tie it in.
This was one of President Trump's talking points when he was on the campaign trail.
How the system is broken, how it needs to be looked into, how it needs to be fixed, how we can't just do business as usual, the standard thing over and over again.
It's time to readjust to basically take a deeper look.
And I think Trump is leading the way.
He saw how the system is broken on the state level here in New York and the federal level.
And I think it's going to hopefully have some very positive change regarding reform in the system, which is long over time.
I don't know how I feel anymore.
I like they definitely murdered their parents.
And we talked about how that is the ultimate F in parenting.
So the parents have some culpability here one way or the other.
There's no question they weren't ideal parents.
They definitely, I believe they were abusive.
And I actually believe Jose was a sexual abuser too.
I do.
I just think there's been, I mean, with the Menudo guy coming forward to say that he was abused by Jose too.
Like, why would he have done that?
Why would he say all that?
You know, all these years later, that's nothing most men want to admit, but he admitted it.
So it's like, we know he was an abuser and it's not, they never do it with just one.
So I do have some empathy for these young men.
Go ahead.
By the way, I will, I stand by.
I know that Mr. Hockman has at least articulated that he doesn't buy it, but I will go to my grave telling you if they were the Menendez sisters, they never would have gotten life without parole.
It's just the it's a given.
Anybody who's in the criminal justice system, who's honest with you, will tell you that.
And the DA, we played this Sunday.
The DA in the case is on tape saying you can't rape a man.
A man cannot be raped.
Right.
Let me let me make Mark's point.
Mark, can I let me just make Mark's point?
I tried a case here.
Mark was fighting for his airtime.
He's like, I'll make any point I can.
What are you having me on here for?
Just to look pretty?
You know, when the handsome bald guy on the air?
I tried a case in Queens, New York of a young woman who cut off our father's penis and he was screaming and yelling.
So she stuffed a towel in his mouth and he gagged to death.
It wasn't the penis injury that killed him.
It was the gang.
Oh, you really dropped a whopper on us there.
What?
Well, viewer warning, please.
There you go.
Well, I use the proper word.
Like you sometimes there, Miss Kelly, who drops some bombs.
My mother yells at me.
You're talking about talking like that.
So anyway, a jury came back and it was a woman.
She testified.
She admitted to every crime.
Prosecutor, after her testimony, stood up in front of her and said, Miss Miss Breton Harris, you intended to cause serious physical injury to your father by cutting off his penis, correct?
Yes.
And when you did that, you caused the death, correct?
Thank you.
Those are all the elements of manslaughter to the first degree, which is a 25-year sentence.
The jury came back and said, not guilty.
They found her guilty of a much lower charge.
She did two and a half years in prison and she was out.
So, you know, it's somewhat similar.
He had not molested her in a decade, but she saw him making moves on her five-year-old niece.
And she said, I was not going to let that happen to my niece.
And I took matters literally into my own hands.
Wow.
Wait, let me ask you this to finish up on a procedural note, Mark.
The report by Variety was that this new DA, Hockman, just removed the two deputies who sought to reduce Lyle and Eric's sentences, which is no bueno for you.
So he's stepping in and he doesn't seem sympathetic, but they already filed a motion asking the court to reevaluate this.
So does he like, is the ball already in motion?
Is it too late for him to reverse course on this?
Like this judge is going to decide right once and for all, or can he stop?
Can he stop the consideration of it?
No, I I said it publicly after the last status conference.
There is a case, an appellate case, in California does.
It says specifically, a subsequent da cannot re pull back the resentencing number one and number two judge Jessick also, at the last hearing, invoked what is called ab600, which is his judge initiated ability to do it.
So no, he can't call it back.
Resentencing hearing is going to happen on the 30th and 31st and it's going to be up to the judge.
Diddy After Party Claims Exposed 00:15:12
That's the next big date in this case, january 30th or 31st, and we will know a lot more at that point.
So okay, very interesting, good debate, and we'll find out what happens.
Let's move on to Jay-z and Diddy now.
We knew that Diddy was facing all sorts of criminal charges and tons of civil suits, and my god, like I can't even keep track of the number of things that have been alleged against, against Sean Combs or P Diddy.
But here he is in this picture with Jay-z, who is also known as Beyonce's husband, and now Jay-z's been dragged into one civil suit by one of the Diddy accusers, and this now 30 something year old woman I think she's 37 now who claims that she was 13 years old at the time this happened to her, has filed a lawsuit through this lawyer, who's suing P.
Diddy in many Cases.
Like this guy's going to build a summer home based on what he hopes to recover in these lawsuits.
Or three summer homes.
Three.
So he says that he's got this woman who, when she was 13 years old, she went to the VMA awards in New York City, like by herself, looking to get in and meet celebrities.
Not surprisingly, she says she couldn't get in.
She says she decided to chat up the limo drivers waiting for the celebs outside and that one of them said to her something to the effect of, you look like Diddy's type.
And that then she was brought back to Diddy's house after the VMA awards at Rock Center in Manhattan in the year 2000.
And that there she was raped, not only, she was given something that made her feel drugged, a drink, and she was raped not only by Diddy, but also by Jay-Z.
And that when Diddy then tried to come for her again that evening, she grabbed her clothes and ran out.
And that her father picked her up at a gas station nearby the home.
The father and I presume she lived five hours away in Rochester, New York.
Now, unfortunately for this woman and her lawyer, this guy Busby, some inconsistencies have surfaced in the account.
Most notably, some inconsistencies.
The father, the father comes out and says, that never happened.
I never went and picked her up at any post Diddy party.
I think I'd remember that.
I lived five hours away.
And that would seem to be a near insurmountable problem for Mr. Busby in this lawsuit, Mark, but you tell me.
Well, that's the, when you say inconsistencies, that's about as charitable as you can get.
And by the way, I'm going to, I'm going to ask Alex Spyro next time he calls him a Busby, the 1-800 lawyer.
I call him the 1-800 Diddy lawyer.
I mean, he's out there with the billboards.
He's filing things anonymously.
And then it turns out when Alex was doing his press conference yesterday, that not only was the description of the house impossible 20 minutes outside of Manhattan, but virtually everything else about this story was impossible, not to mention the, as you said, the father.
But this is not the first time that one of these things as to Diddy has fallen apart.
I mean, Gloria Allred brought a case that ended up falling apart.
The lawyer, I was, I actually followed on one of the TV shows, a lawyer who brought three cases against Diddy.
And he said that 60 people had come to his office talking about Diddy, but the 57 of them were so ridiculous that he didn't take them.
Well, that tells you 95% of the people making the claims don't even pass the smell test for a lawyer, yet he's going to take three or vice versa.
I mean, this is really at the end of the day, if you look at the Diddy case, and there's almost a service that has been done by them expanding it to Jay-Z.
Everybody says there's all these celebrities involved.
Well, so far, everybody says any minute the tape's going to drop.
The tapes are being shopped, blah, blah, blah.
The problem is that was in September.
Now we're in December.
Not one tape has been released that I have seen.
Not one other person who is an alleged victim has been identified.
It's still, we're down to, it's still a one accuser case that's being brought criminally.
I think that a lot of this is totally overblown.
And there isn't any indication.
Everybody keeps talking about the Diddy parties.
Where are the tapes of the Diddy parties where this is supposedly going on?
Nobody's ever seen it.
It's become like the Loch Ness monster.
And also, but Meg, let's talk about something historical that took place this week.
And it's this case that you and I, I don't know how many stories we did on the original Pendle's court/slash Kelly's court.
The young woman who, when she was young then, accused the Duke La Crosse players of raping has now come out and said, yeah, they made the whole thing up, which as horrible as what she did was horrible.
She's actually just committed like a little bit of a public service to show like people do make these things up.
Everyone's like, oh, make this up out of home cloth.
How do we just create such a story?
Never happens.
Yeah, it actually does happen.
Did happen.
Those four kids' lives were ruined.
Their families ruined, financially wiped out.
But DA was brought to his knees out there.
It was just, you know, a despicable situation that happened.
And now, I don't even know, almost 20 years later, she admits, yeah, I made the whole thing up.
And this girl with the Jay-Z thing, I mean, her own father, yeah, I think I would remember if I drove five hours to pick up my daughter from a nightclub.
But for Jay-Z, I agree with Mark that he did perform somewhat of a public service when his name came out.
And he fought, he said, look, I feel bad for my kids.
I feel bad they're going to have to hear about this, but I am not going to be extorted.
I'm not giving a penny.
I know I didn't do that.
And I'll tell you, Mark and I represented these kinds of people.
It is often a lot easier for them to fill out a three-page document, a non-disclosure agreement, write out a check for an amount of money that's not going to change their quality of life, just make it go away.
He probably could have done that here, but he didn't.
And good for him.
Yeah, no, Jay-Z is denying it in the strongest terms.
And he's responding to this.
I'll get to her other inconsistencies in a second, but he's responding to the fact that she's been caught with some apparent whoppers by saying today's investigative report proves that this quote attorney Busby filed a false complaint against me in pursuit of money and fame.
The incident did not happen and yet he filed it in court and doubled down in the press.
True justice is coming.
We fight from victory, not for victory.
This was over before it began.
This 1-800 lawyer doesn't realize it yet, but soon.
And here are some of the other problems with her story as she told it through this lawyer.
Okay, she claimed that she talked to specific celebrities at the Diddy after party.
She said, for example, she spoke to musicians Fred Durst and Benji Madden, recalling a conversation, quoting her from a Washington Post report, about the Good Charlotte member's Last Supper tattoo.
I have a religious background, she said, so it was something to talk about.
Okay, but NBC News said a representative for Benji Madden confirmed that Benji, as well as his twin brother Joel, were touring in the Midwest at the time of the 2000 VMAs and did not attend the event.
So there's that.
There's the father.
And then there is this.
Okay.
She claimed that she went back to the after party at Diddy's house to a large white residence with a giant U-shaped driveway.
And NBC News is reporting that I guess there was a party, but it was at Lotus.
Is that what it is?
But they said that the building's now closed and it does not match the description of the place she claims she was taken at all.
So there's a few things here that don't match up.
And she is saying, I have made some mistakes, but she stands by her story saying I may have gotten some of the details wrong, but I stand by it.
And but here's the capper.
All right.
This is the last piece of info for you guys.
This is devastating.
This is the worst part to me.
Busby puts out a statement in the wake of this, right?
This is terrible, Arthur.
And he says, Jane Doe's case was referred to our firm by another law firm.
So already it's bad.
Like, we don't know Jane Doe, right?
Somebody else did the legwork on this who vetted it prior to sending it to us.
I'm innocent.
Don't hold it against me, Busby.
Our client remains fiercely adamant that what she has stated is true to the best of her memory.
I mean, how many qualifiers can you get in there?
She is adamant that what she has stated is true to the best of her memory.
And then says, we will continue to vet her claims.
Hello?
That should have been done before you filed a lawsuit against Jay-Z and Diddy and collect corroborating data to the extent it exists.
Okay, well, we will look forward to that, Mr. Busby.
Then he claims she agreed to submit to a polygraph, though he doesn't claim she's actually sat for one yet.
And then he says, we'll do our best to vet every claim made in all of our cases, just as we will.
In this case, this has been extremely distressing for her.
Here we go.
Ready?
To the point she has experienced seizures and had to seek medical treatment due to the stress.
I don't believe one word of that.
She did not get seizures from the stress of this.
Did she get seizures, Arthur Adala?
I doubt she's gotten seizures.
And, you know, as lawyers, we raise our hand the day you're sworn in and you take an oath.
And some people take that oath more seriously than others.
So I had a woman come in here, a woman, not a young woman, a woman, 38 years old in the end of August, and she made these types of claims.
And I have had three retired judges in my law firm and three other lawyers.
And I believe her.
I believe what she's saying, but I am fallible.
I make mistakes.
We've all now interviewed her over the course now of four months.
And now finally, I think in January, we will file a suit along these lines.
But it's not until... six human beings with different life experiences, different ages, have evaluated this individual before you make such a serious claim.
And this is, it's not a case that's going to make the news, but it's going to affect somebody else's life.
And when I took that oath in 1992, that's still in the front of my mind in 2024, that I'm always going to try to do the right thing and make sure I'm very, very careful and not throw people's names and reputations under the bus.
You know, when they just named Beyonce the top singer of the first quarter century, they didn't include her last name, Carter, in her remarks or whatever it was.
And that's, in my opinion, a direct ramification of this new lawsuit.
And, you know, you can't, you can't just be so careless, even if you aren't going to get three summer homes or six summer homes or a yacht out of it.
To my own self, be true.
And I think Mr. Busby is a very good idea.
Would you have done things like calling, you know, the guys in this band, like their reps to say, I'm investigating this case.
Can you confirm whether your clients were in New York at the VMAs in 2000?
Like, would you have done that kind of work before submitting a complaint?
I mean, before you, look, I'm not going to BS you and say, yeah, I would do that in any case.
Before I was going to go after someone, the likes of Jay-Z, who look, the guy started off life as a crack dealer.
So, you know, he wasn't exactly in the seminary before he became a billionaire.
But he's led a pretty clean life the last three decades or so, if not four decades, but I would say three decades.
Well, okay.
But as far as we know, as far as, look, he's in the public eye.
He's under public scrutiny on a regular basis.
You have to do some minimal fact checking.
Like, does the location exist where this person is saying it took place?
I would definitely pick up the phone and be like, Jay, let's talk to your dad.
I mean, that's a simple one.
My dad picked me up.
Okay, good.
Let's just chat with your dad.
I mean, that is not hard.
I'm going to go back to the case that I talked to you just to show you how careful I am, Megan.
This particular case in my office, this woman has the potential defendant on tape admitting things.
And I'm still being overly cautious before I start a lawsuit of this magnitude.
So we have a responsibility of lawyers as lawyers to cross our T's and dot our I's.
That's an oh shit moment when you hear the dad say, no, no.
I think I'd remember like, oh, God, Cal, help, help us out.
But no, this does not look real.
And Jay-Z is denying it in the strongest terms.
And I know it's very fun to say, oh, a very rich celebrity.
I'm in.
Let's tell me all the terrible stuff he's done.
But we have to be just as cautious about what look like bullshit allegations.
And, you know, when they smell bad, call it out as such.
Okay, let's move on.
I say penis and you yell at me and you just say the whole word BS and I can't, you know, that's okay.
He's talking about saying penis.
You were like, oh, she chopped your dad's penis off and shoved it down his throat.
Oh, go on.
People are listening as they're driving their cars.
They don't know what they're coming at them.
Okay.
Sorry.
Let's talk about the horror that was the United Healthcare CEO murder, Brian Thompson, killed by this guy, Luigi Mangioni.
It's so bizarre.
You know, this young guy, 26 years old with everything in front of him, you know, had the world at his fingertips, valedictorian, went to an Ivy League University, UPenn, got a master's, was never in trouble with the law before, you know, like one minor traffic violation, something stupid.
Um, and now facing charges in New York of second-degree murder.
Uh, let's just start there.
I'll start, stick with you on this, Arthur.
Mental Element in Murder Charges 00:07:53
Why, why is second-degree murder instead of first-degree murder in New York?
Well, second-degree murder is the typical charge.
First degree is for police officers, firefighters, EMT workers.
I believe if you kill someone under 14 years old, if you execute someone who's going to be a witness in a king's very, very specific first-degree murder elements of a crime, when you just go to jail forever, you can still go to, yeah, well, I believe first-degree murder and you get life without parole.
And murder in the second degree, it's 25 to life.
First-degree murder is very, very rare.
Thank God.
Actually, I'm just going to say this.
This Friday will be the 20-year anniversary of the exclusion, the 10-year anniversary when Detective Ramos and Detective Lou were executed on the streets of New York sitting in their police cars.
That's a first-degree murder case.
Oh, God, that was awful.
Mark, let's say they call you up, Luigi Mangioni, and I believe he's just hired Karen Agnifilo, the wife of Mark Agnifilo, who represented Keith Ranieri in the Nexium case, who I interviewed when that whole thing was going down.
He did not get Keith Ranieri off.
But in any event, so he, let's say he has second thoughts and he actually wants Mark Garagos.
How do you defend Luigi Mangioni?
Well, you're going to get mad at your booker for this.
Mark Agnifilo's partner is a Garagos.
Is a Garagos.
Yes, my daughter.
It's your daughter, right?
I'm not mad at my booker.
She told me.
Okay.
That firm also represents Diddy.
So full disclosure.
And I've represented Diddy for years.
So full disclosure there.
I'm glad you put that at the end of this segment, Mark.
Most people get the full disclosure.
So do you have the right to remain silent?
Well, if they hadn't turned off over penis cutting, then they're still listening.
This is their reward.
I don't know.
And all I know, I haven't talked to Karen other than just briefly about it so far.
She used to be of counsel to me before she went with her husband and Tenny.
And I don't know if they are conceding that he is the shooter or not.
Obviously, that's the first thing.
They've got to see what the evidence is and what the prosecution has.
I mean, as of right now, I believe he's still in Pennsylvania.
I don't think I'm telling any secrets in that I think extradition will probably get waived and that they'll get to New York and then they'll get the discovery, which is the package of information, and then they'll make a decision as to what's going to happen here.
I will tell you that I'll be captain obvious here, that people have already assumed that he did it and that he did it for the reasons that have been kind of tapped into the public consciousness, which is that people have a lot of animus towards these healthcare companies and these insurance companies for the way that they treat people.
I mean, you know, it's amazing to me if you take a look at this act, which normally, if this was any other situation, people would be screaming.
But within hours of this act, Aetna had to reverse the fact that they had said they'd come out and said they weren't going to pay for anesthesia for the insurgents of an operation, right?
And they had to reverse that based on the based on the kind of public outrage over this.
I remember I'll be like Arthur and talk about prior cases.
20, almost 20 years ago, I had a young lady or family where the stigna would not pay for the liver transplant and claimed it was too experimental.
And until we organized a protest in front of Cigna, they changed their mind, but it was too late.
And this beautiful 17-year-old girl died.
And we ended up trying to go after Cigna for that.
And it was amazing to me that became a kind of an issue in the then presidential election.
There are or are all kinds of public sentiment and probably in a lot of cases, rightfully so, where there are there if they embrace that and they go down that road, that jurors may say that there is some mental element that justifies that if in fact it turns out that he is the shooter.
And I think you have to focus a little bit.
Wait, When you say there may be some mental element that justifies it, are you talking about an insanity defense?
Because that's the only mental element that would justify this.
No, I don't know that that is the only mental element.
I don't know enough about the facts.
I don't know enough about the fact that.
I'll tell you the facts.
He murdered Brian Thompson.
I think because he's a nutcase, I don't know that he's going to rise to an insanity defense.
But the reason we know it's not some speculation is because he had a fucking explanation written down on his person right next to the gun that he used to shoot the man.
This is not going to be a tough one.
We don't need to pretend that this is like the Jay-Z situation.
He is cooked.
Okay.
Yeah.
I mean, the first thing I would do, Megan, is you order at a Raymond's badge, Mark.
Yeah, just save the tape.
At a Raymond's, at a Raymond's, haven't been in this position before.
I've represented someone who I don't know Luigi, but this guy, I got him.
I got him the insanity defense without a trial.
Prosecutors agreed.
So you do what's called a 730 exam right at a Raymond's, which means when he's incarcerated, doctors who work for the city of New York and under the supervision of the judge examine him.
And that examination isn't about his mental state at the time that the crime took place, but his mental state at that point to see whether he can represent himself to see if he can help in his own defense.
If a judge says, this kid doesn't even know that we're on the planet Earth, he thinks we're on Mars.
He just gets warehoused and keeps getting evaluated until that happens.
So he's not out on the street.
He's in a facility with bars and chains.
But then at times, if you find your expert finds that this person is so just really is not in touch with reality, you can then bring him into the DA's office.
Their expert or experts evaluate that person and they can agree to, all right, we're not going to put him in prison.
We're going to put him in a hospital prison.
And statistically speaking, this is why you don't usually want to do that.
Statistically speaking, on murder cases, you spend more time incarcerated in a hospital prison than you do if you pled guilty to 22 years to life and you're up for parole at 22 and then at 24 and then at 26 and then at 28.
Yes, you wind up spending more time incarcerated.
A lot of these times, Megan, they really are.
And he used the word like crazy, but they are really crazy.
Like it's scary.
John Hinkley Jr. after what, 40 years?
I'm just saying, like it wasn't a life sentence for him.
But at 25 to life, you usually get out at 30, 32, 35 years.
So he was in there.
John Inkley Jr. was in there a very, very long time.
This guy, you're telling me Luigi could get out, he could get convicted and he could get out after 34 years.
Yes.
That's ridiculous.
That's absolutely ridiculous.
This guy, how much more could you tell me?
Arthur, used to prosecute cases.
IRS Tactics and Incarceration Time 00:03:14
How much more could you ask for?
You find the guy.
He's got the gun on him.
He's got a confession saying, let me save you the trouble.
I didn't work with anybody.
It was me, all me, and here's why I did it.
You've got his fingerprints at the scene.
You've got him on camera multiple times and you've got the exact GPS of where he like.
Look, Mark started off with, you know, do you, do you come out and not lose credibility and admit that it was him right off the bat?
So you don't look like a fool.
Whereas his first lawyer in Pennsylvania is like, I've seen no evidence that it was him.
That's a little bit of a stretch.
What's more scary to me is the people who look at him as a hero and people who are putting money in a GoFundMe for him and whatever.
You know, some host on another television show when I was on tried to compare Luigi and the GoFundMe page and Daniel Penny, the guy who was just acquitted.
I mean, it was absolutely ridiculous.
One guy, Luigi, plotted this thing out for a long, long time and executed someone.
This Daniel Penny woke up one day and was heading from point A to point B and saw something he thought was going to be of tremendous danger, if not death, to somebody else.
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No, I have a question for you then, Arthur, because I'm glad you brought up Penny.
As somebody who has close family members who ride the subway, I do not understand for a second that prosecution by that DA's office.
And I said it before about Trump, which I never understood in that prosecution, but this prosecution makes zero sense to me, Daniel Penny.
Jury Nullification Explained Simply 00:15:09
I don't understand it.
I don't understand.
Talk about be careful what you wish for when that jury came back as they often often do on a Friday afternoon at around three o'clock and said we're hung.
And then they gave the Allen instruction, which by the way, I don't know why you guys still haven't had that declared unconstitutional in New York in our state courts.
You can't do it.
Get back in there and deliberate.
The fact that they moved to have that greater charge dismissed and then have them come back on a Monday to deliberate on the lesser charge.
If that isn't once in jeopardy, I mean, they should be and they were trying anything to get a conviction.
What was the point of that?
What were the, what was the luckily for Daniel Penny?
It'll never be appealed because when you win, you don't appeal.
So no one's going to know whether it was correct.
Let me add to Mark's question because my question too was, so the prosecution, realizing that the jury was hung on the most serious charge in Daniel Penny, reckless endangerment, said, never mind, we'll drop it.
We'll pull it.
Okay, they can't agree on it.
We'll pull it and just make them decide criminally negligent homicide, yes or no.
And the reports uniformly said they dismissed the reckless endangerment without prejudice.
But hadn't Jeopardy already attached at that point?
How could they possibly have argued that they were preserving their right to try him again on reckless endangerment?
I'm not sure.
First of all, they were only able to do that with Judge Max Wiley's approval.
And I don't know what Judge Max Wiley said or what his ruling would have been.
So it's, and again, we're not going to find out because he was acquitted.
Let me just go back to the beginning, Mark.
But it doesn't get attached when the jury is sworn in.
Yes.
Jeopardy get attached.
That's what he said.
It was once in Jeopardy.
Yes.
That's why I don't think I don't think that's relevant.
I mean, I don't think it was meaningful.
Oh, we were dismissing without prejudice.
Of course it's with prejudice.
They're in there deliberate.
Yes, of course.
Going back to the beginning.
Thank you.
Go ahead.
Going back to the beginning, Mark.
You know, when this happened, primarily because it was on video.
You know, you guys know this.
You know, when we were kids and you heard testimonial evidence, it was one thing.
But when you're actually watching and then you're actually, and it's the same thing with George Floyd, if there was no video on the George Floyd case, we would never know the name George Floyd.
So it's the video that incites.
It's the video that makes things much more important.
And I think Bragg had no choice but to put it into the grand jury.
However, those of us who have been prosecutors know there are ways to put cases to the grand jury to kind of maybe get one result or another result.
And they decided, look, they didn't overcharge the case.
I'm shocked they didn't ask for the higher charge of manslaughter in the first degree, but they got the manslaughter, the man too.
It would be naive to say there wasn't a racial aspect to this, even though besides Daniel Penny, there was a black person holding him down.
It's the reason.
Well, the video was huge, though, Megan.
The video was huge.
When you watch a person's life get snuffed out, like you watched George Floyd's life get, you know, his leg, he's kicking, kicking, and then he just dies.
That's one human who is killing another human.
There's no doubt about that.
And, you know, that's not the type of thing that we really need to examine.
I go back to this.
Who would I rather have on the subway?
Of course.
Jordan Needley or do I want Daniel Penny?
Well, I was in the summation and I worked very, I was very supportive.
I'll leave it at that with the team on Daniel Penny's case.
They did a great job, Tom Kinniff and Steve Reiser.
But here's what the prosecutor messed up.
The jury's charge, when the judge told him is you cannot deliberate on the lesser included of criminally negligent homicide until you have a verdict on manslaughter in second degree, the more serious charge.
So they went under the assumption that, well, we'll get him on the criminally negligent homicide, but we're not going to get there unless we give them an out on the man too.
So if they're hung on the man too, they can't get to Krimneg.
So we'll say, which is something we've never done before, dismiss the higher count and victim of the lesser count.
And in fact, it backfired.
They dismissed him on the higher county.
They really wanted to get him, which just showed they were not just checking a box.
They desperately wanted to get him.
And the reason they desperately wanted to get him is because you had a woke prosecutor.
She was on camera having said, oh, you know, I'm always looking for the racial justice and I make sure I look out for the marginalized communities when I decide who to prosecute and who not to.
And in this case, she thought that Jordan Neely was the marginalized one and Daniel Penny was some privileged white guy, even though he's like a former Marine with no money.
That's how this DA's office sees everything.
They're as woke as they come.
We've seen this time and time again from them.
It was video or no video.
They never would have charged this case if Penny had been black and had wound up holding Neely a white man in a chokehold to his death.
Never.
But what I just can't get my head around is how do you, as a defense lawyer, you defend against the more serious charge.
You go through all the case.
You're focused on the more serious charge.
The jury deliberates, says they're hung.
I defended the whole case.
You defend the whole case based on the more serious charge.
They're hung.
You give them the Allen charge, which in a lot of jurisdictions, as I'm already mentioned, is unconstitutional to coerce the jury.
They still stand tall.
And then you say, sorry, we were just joking.
We're going to dismiss that.
How is that not once in jeopardy on this case?
I don't understand that.
Well, the defense objected.
First of all, the defense strenuously objected to the top count being dismissed.
And the reason why the defense bar show up in arms over the weekend was we don't want this to be a trend where mega prosecutors overcharge cases so that hey, they get hung on the top count.
We get two bites at the apple.
All right, fine.
We didn't give you any way to get the man one.
We just want to dismiss that.
Make sure you convict him on the man too.
But again, it'll never be appealed since he was found not guilty.
I see that perfectly.
They have a reasonable, they have a reasonable objection.
But listen, before we leave the subject of this, I want to do two things.
I want to talk about this DA.
Actually, let's do the civil suit in the Penny case first, and then we'll go back to Alvin Bragg because he made just an outrageous decision about the Trump case.
And the judge, of course, sided with him because the judge continues to side with him against Trump, Judge Mershon.
But anyway, let's stick on Daniel Penny for a second because now Penny's off the hook criminally, but not civilly.
So much in the same way we saw in the O.J. Simpson case where O.J. got off criminally, but then got sued by the Goldman family and lost, was found civilly liable for wrongful death of Ron Goldman and Nicole Brown Simpson.
That's what they're trying to do to Daniel Penny.
So Jordan Neely, the decedent's father has now brought a civil suit against Daniel Penny.
I mean, even though this guy was absent from his son's life, his son was in the system in and out on drugs and so on.
Where was the dad then?
Nowhere to be found.
But now that there's potential money involved, he's back and he's filing a civil lawsuit, Mark, where he wants to try to get blood from a stone.
That stone is named Daniel Penny.
What do you make of it?
Unfortunately, it's a story often told and it is to some degree, it's repulsive.
The whole idea here that you have, first of all, the idea that Daniel Penny would be prosecuted, I know that you want to go under the civil.
I just can't leave the criminal.
This was, to me, was such an outrageous prosecution.
As a defense lawyer, and I'm not a member of the New York State bar, but I will tell you that if I was in the criminal defense bar, state bar of New York, like Arthur, they should be outraged.
They should be up in arms.
The idea that you can overcharge somebody, bring a prosecution like this, the jury, coerce the jury by giving an Allen charge, a dynamite charge, and then pull this stunt and have this guy.
I mean, does anybody understand just how over the top this is?
You already said that.
I just, I can't.
I'm moving forward.
No, you must.
I insist.
I refute.
Listen, regarding this, Megan, I'm hung and I'm not moving.
Regarding the civil case, Megan, I have repeatedly said what you just said.
See, there's an opportunity to reclaim the microphone.
There you go.
He had, I'm trained in this.
You know, I have he, the father, the uncle, the aunt, all these people were there.
This guy, Jordan Neely, was a sad case.
He was mentally ill.
He was a drug addict.
He was a criminal.
And yet, I think one of the people in his family did give an interview and say, I would drive around Manhattan and try to find him.
And occasionally I would and bring him in my car and try to help him.
But they definitely gave him a lot more attention in death than they did in life.
And that's why he's in the position that he's in.
And I know we focused on these two individuals, Penny and Neely, but we need to look.
And I'll just speak for New York City, the bigger problem with mental illness in the streets of New York.
Neely is not a unique character, unfortunately.
And it's not only the streets of New York, San Francisco, Los Angeles, Dallas, Miami.
There is mental illness that's prevalent.
I don't know if it's always been prevalent.
I don't know if it's a newer thing.
Drugs are much more intense.
Even straight up marijuana is much more intense, but they have this K2 stuff and people are like losing their minds.
And we are not doing anything to address it.
The NYPD is not supposed to be the entity that approaches a guy in the street who's doing nothing, but his pants are around his knees.
He's absolutely exposed.
It's 20 degrees outside.
We need like a different unit.
We need someone else.
It shouldn't just be cops putting handcuffs on a guy who doesn't even know his name and is dribbling.
We need to address this in a much bigger way.
And maybe the Daniel Penny case is opening up some eyeballs and some brainpower to figure out how to prevent tragedies like this from happening because it was a tragedy for Daniel Penny as well.
Of course, it was a tragedy for Neely and his family.
But for Daniel Bay, he's been going through hell, that kid, for a year and a half.
Will for a little while longer.
It's fine for this dad to like claim, oh, gee, you know, but there's going to be testimony about him.
There's a report in the New York Post saying he and his son would argue after the dad asked Jordan Neely to share the proceeds he earned from his performance as a Michael Jackson impersonator and he refused.
This dad was always trying to get money from the son.
That's how it makes it sound.
Even in death, he's trying to get money off of his son.
I don't think a New York jury is going to fall for this for one second.
I don't think he's going to get anything.
We'll see.
But wait, we got to go back to Luigi because this just breaking as we're talking.
Arthur, they just charged him with murder in the first degree.
So I think are they listening to us right now?
Did we persuade them that he wasn't good enough?
I will look at the subsections.
It would be interesting to see if, obviously, we know he's not a cop fireman, EMT, or anything, peace officer.
I don't know if he was about to go testify at a congressional hearing or some sort of a trial, but I do know if you kill a witness.
So I don't know exactly what theory of murder in the first degree they're going to be looking for, or maybe they're just overcharging and see if it gets, you know, what sticks and if they want to lower the charge.
But grand jury would have to approve the murder in the first degree charge.
That's what happened.
They said that he was indicted by a grand jury on murder in the first degree, charged with 11 counts, including murder in the first degree.
One count of murder in the first degree, two counts of murder in the second degree per the Washington Post.
So they did it.
There's got to be a reason why they were able to increase it.
And I have to say, thank God.
Thank God.
There's no way this guy should be getting out after 32 years.
Bullshit.
He cut this guy down in the prime of his life.
You know, 16-year-olds, 18-year-old son, running a big company, self-made, didn't come from any sort of money, Brian Thompson.
These Cretans who are celebrating it are absolutely disgusting.
We saw a poll showing 41% of 18 to 29-year-olds approve of Luigi's behavior.
More than the number who disapprove, which was just 40%.
So not by much, but they do.
And so here's the question I have for you, Garrigos.
Knowing that if you actually do get hired by Luigi, like someone in your family did, do you go for jury nullification?
You try to stack the jury with young people and you try at every turn to get in the terrible misdeeds of the insurance industry.
And when you get an objection from the prosecution that that is totally irrelevant to the trial, you try to sneak it in however you can, even if it gets stricken.
You make the jury hear it.
And you hope one of those young people is in that 41%.
There you go, channeling your proho again.
Just when I thought we had gotten to kind of you centered and being more moderate, you know, you just go off.
Nah, Luigi.
I am definitely very pro.
I'm not going to go as far as Dickie and tell you that I've seen no evidence, but I don't know what the evidence is.
But I will tell you, whenever somebody argues about jury nullification, I'm always a little leery about that.
There's always the overcharging by prosecutors.
I don't hear people protesting or being upset when prosecutors overcharge.
A defense lawyer has a duty, and that's to zealously defend.
It's different.
It's a different duty than the prosecutor.
The prosecutor is supposed to seek justice.
Now, what you call jury nullification, I'm sure, I would guess there's going to be a robust exploration of the mental state of this young man if the facts are as simplistically and powerfully overwhelming as you've described them.
I just don't know that yet.
But if they are, as a defense lawyer, the first thing you do is you look at the evidence that the prosecution has.
Prosecutorial Misconduct Allegations 00:16:21
At the same time, you walk and chew gum and you take a look at exactly what the mental state of your client is.
And that's the important thing to do as a defense lawyer.
And you don't get swayed by kind of one side or the other.
And you're not looking necessarily when people talk about jury nullification.
I always say, well, yeah, there's only two things that are not appealable in the criminal law.
One is a not guilty verdict, as Walt, as Arthur mentioned, and the other is a presidential pardon.
So those are the two kind of escape hatches.
That's what our Constitution is based on.
And I don't call it jury nullification.
I call it not guilty.
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This same DA we've been debating who brought the criminal charges against Daniel Penny for protecting those subway passengers is the one who brought the charges against Donald Trump for falsification of business records around his nondisclosure agreement with Stormy Daniels.
And one of the many problems that Alvin Bragg now faces is, A, his client was elected president again, and it's going to make sentencing Trump very complicated.
When will he serve his time?
If ever, will there be actual time assigned and so on.
But secondly, the U.S. Supreme Court then ruled that presidents have immunity for their official acts and that not only do they have immunity, but you can't even introduce into evidence in a case against them evidence of their official acts.
They're just totally off limits as an evidentiary perspective.
And yet that ruling came after this trial.
And at the trial, they did have testimony about Trump while he was in the Oval Office doing various things, including with Hope Hicks, who was his advisor.
And the prosecution argued that it had been critical evidence in closing.
So Trump recently filed a request to Judge Murshon to throw out the criminal verdict saying this is not consistent with the Supreme Court's ruling.
You allowed evidence in against me, which has now been deemed inadmissible by the highest court in the land.
And Mershon, shockingly, didn't see it that way and will not order a new trial and does not think that this was a problem.
So while we're on the subject of Alvin Bragg, what's going to happen in that case, Arthur?
You're a New York lawyer.
Well, the judge relied on what's called the harmless era.
He's like, even if it did come in, the evidence against Trump was overwhelming without his bad evidence.
So it's harmless era of that prosecution.
I allowed it in.
And we're going to stick with the result that the jury gave.
Typically, that's what an appellate court does.
An affiliate court rules, yes, the trial judge should not allow this in.
He did allow it in.
The jurors did hear it, but there was so much other evidence that it didn't matter.
So that's where we are with that piece of the puzzle.
The sentence in this case, I believe, was supposed to be July 16th.
Then, in between the conviction and July 16th, that's when the Supreme Court decision came on, came down with the presidential immunity.
There have been all kinds of motion practice that was supposed to happen in September, that it was supposed to happen in November, but that Trump won.
And I looked up, I try to look up today what the next date is for a sentence, and I don't see one, but I may have, it may have just been announced because this decision came down yesterday.
A lot of people thought maybe the judge was going to dismiss the case, but that was not the case.
And a 41-page opinion, so those of you know, in state criminal court is a very big opinion.
They're normally like four to five pages, not 41 pages.
There will, there now has to be some sort of a sentencing to end this.
Alvin Bragg has suggested: let's just all agree or adjourn it until after President Trump's tenure as the president of the United States.
But a defendant has the right to a speedy trial, and this folds into all of his constitutional rights.
So I don't see that happening.
I think Marshant's hands are going to be tied and he's going to have to sentence him to like time served, which was the one day he had to surrender to be processed, or an unconditional discharge, which means, okay, you're going to go through life as president of the United States with 34 convictions hanging around your neck for the rest of your life and throughout the history, unless an appellate court reverses it and go on and be president of the United States.
What is he going to do?
He can't sentence him to probation.
What is he going to check in with a probation officer every week as a president?
He can't sentence him to jail because the sitting president can't go to jail.
And I don't see any scenario where, okay, we're going to put this over four years and change.
Then you'll go to jail after your presidency.
So I think a lot of nothing's going to happen.
I would suspect Richard will give him a tongue-lashing saying you've been convicted.
You're a convicted felon.
I think what you did was horrible and you set a horrible precedent, but blah, blah, blah, blah.
But this is a unique case.
And I would have sent you to jail, but now I think I cannot send you to jail in the interest of justice.
You know, you should send him in for community service.
He's about to do four years of that.
Go ahead, Mark.
Right.
I was just going to say, I didn't realize we'd be talking about this, but I pulled up the quote that I noticed yesterday that Todd Blanch, who's now nominated to be the number two at DOJ, wrote.
And he said, as a further illustration of D.A. Bragg's desperation to avoid legally mandated dismissal, DANY proposes that the court pretend as if one of the assassination attempts against President Trump had been successful, quote unquote.
And that is exactly right.
There is no reason in the world for him to be sentenced.
By the way, Arthur, you can correct me, but if this had been in most courts, the fact that he hasn't been sentenced means that he is not a convicted felon.
I don't know if there's some nuance in New York, but federally and in the state courts that I've practiced in, without sentencing, you're not convicted per se.
And the fact that they had to dance on the head of a pin to try to say that the evidence that was brought in, where they're talking about things that happened when he was in office, I mean, Megan, you covered this in real time.
They had all kinds of days and days and hours of evidence about what happened post-election at the White House.
And to say now, well, sorry, we were just kidding.
It was overwhelming.
And therefore, it didn't implicate presidential immunity is just nonsense.
The appellate court will see through this.
They will see how the prosecution argued in closing that that evidence about Trump's official behavior was critical to their case by their own admission, the prosecution's own admission, not to mention all the other ridiculous legal gymnastics that were pulled in this case.
There's so many appellate arguments here.
So many, so many arguments here.
It's a case of first impression.
It's a federal case brought in state court.
The jurors didn't have to be consistent on what underlying crimes Trump allegedly committed.
There is so much appellate practice here.
It's actually exciting.
Yeah, it is kind of exciting.
I can't wait to see it get reversed.
Okay, so we've got to move on to Derek Chauvin.
I don't understand this one.
Maybe you guys understand it better than I do.
I don't totally get what's happening here.
But the headline is that he has won the right to examine George Floyd's autopsy results as he challenges his murder conviction.
Lawyers for Derek Chauvin, quoting here from the Daily Mail, have been granted permission to examine heart tissue and fluid samples taken from George Floyd's body.
U.S. District Judge Paul Magnuson granted the motion after attorneys argued it was a heart condition that claimed the 46-year-old George Floyd's life, not Chauvin's knee on the neck.
Defense team now will have the ability to procure evidence from histology slides and tissue samples taken from the victim's heart during his initial autopsy, the results of which were used to convict Chauvin along with three other officers.
Chauvin's lawyers are also allowed to inspect and make copies of any photographs taken of Floyd's heart during the initial autopsy, which found Floyd's heart had stopped while he was being restrained and that his death was a homicide.
So what is happening here?
Who wants to take this one?
I'm not exactly sure why they would not be permitted to have all of that at the trial.
Usually, at least in New York, you get extensive access to the medical examiner's files, including some of the items that were just articulated.
They're in federal court now.
So he's exhausted all of his state court remedies.
So they're in federal court.
It's under, I've assumed some sort of habeas corpus, free the body claim, saying, look, our theory of the case was it wasn't the choke that killed him.
There was other factors that killed him, but we weren't allowed access to all of the initial autopsy, the best evidence that could have been provided to us.
We need that evidence to reopen this case and say that because we didn't have this evidence, we were not able to prove that it was a heart condition or drugs that were in his system that caused the death, not the compression on his neck.
And the judge is now saying, okay, I'm going to give it to you.
Go at it.
I don't like, I don't get it because they definitely argued during the trial that it wasn't the knee on the neck that caused him to die, that George Floyd was on a bunch of drugs and had a heart issue and a lung issue that caused his death.
And I don't get why they wouldn't have done the whole, let's see the tissue to see the deprivation or whatever they're looking for during the course of the trial or how the judge could be going down this lane.
I mean, is there a chance here, Mark, that this judge is going to grant the request for a new trial, which is what they're asking for, or at least an evidentiary hearing?
So I'm going to wildly speculate because I wish I could talk to the lawyer who's representing him, but it has, I'm like Arthur, trying to figure this out, that you would assume that you had access to this and he had a very able defense lawyer.
I was always impressed with the way he tried the case.
I'm going to assume that there is an ineffective assistance of counsel claim, which is often the case when you get to federal court under a 2255 that you allege that the defense lawyer didn't do ABC or D.
And one of the ways you would prove that is that they didn't get or that there was some, I guess, the flip side to that prosecutorial misconduct for not turning over certain items.
If there are items that were not turned over, or if the defense lawyer did not request those items or the items somehow got lost in transit, then I could see where this revolves around either prosecutorial misconduct or IAC.
Wild caveat, wild speculation.
But even if you, and the point you made, Megan, if in fact, and it was, you're absolutely right that they argued that in closing, and if they find something that either wasn't turned over or should have been requested that supports that and supports a narrative that if the jury had known about it, it would have changed the direction of the conviction.
And I can see where this gambit has legs.
This should be reexamined.
There was so much pressure.
You got to watch the fall of Minneapolis by Alpha News.
You can, I think, just Google it on YouTube and watch it on their YouTube channel.
That's a very respected news organization there in Minnesota.
And they took a deep dive on this and found the amount of pressure that was on the coroner to say, oh, the official cause of death is cardiopulmonary arrest caused by law enforcement, caused by law enforcement, as opposed to maybe it was caused by drugs.
Maybe it was caused by the stress.
But that guy was under pressure.
The DAs were under pressure.
I mean, the jury was under, all of these people were under.
This guy did not get a fair trial and he should be given a new trial.
I really hope he gets one.
Okay, last but not least, Liam Payne, the former singer of One Direction who died in a Buenos Aires hotel room a couple of months ago on October 16th.
He was just 31 years old.
There's something interesting happening now in that investigation.
Rolling Stone Exclusive reporting that according to new documents they've obtained, the judge in the case has charged, that's the word they use, two workers, including the receptionist head who called 911 as the judge investigates them for wrongful death.
The judge has also called for all suspects in the case to be questioned as part of the investigation.
The judge is investigating them, again, for wrongful death, being investigated for possible imprudence, negligence, or lack of skill in their profession, leading to the death of another person according to the statute.
According to the Buenos Aires judicial system, after interrogation, the judge must determine whether the defendants should be further prosecuted, dropped from the case, or if there is not evidentiary support for either decision.
Remember, this guy went off the balcony when he was reportedly, well, he was seen to be high on drugs or appeared to be high on drugs.
So what do we think is happening here?
I don't think either of you guys are likely admitted in Buenos Aires, but what's happening, Arthur?
Merry Christmas from True Crime 00:04:03
Who are they trying to charge?
Like the security staff, the front desk person, because they knew that he was acting crazy.
Apparently, he had reportedly broken a TV and there was buzzing around him like something's wrong with this guy.
And I think the allegation is they didn't do enough to stop this.
So the only thing I get analogous was here in actually in Brooklyn, New York, they charged some child welfare agency workers who worked for the city with criminally negligent homicide when a parent caused the death of their child when there had been reports that there was some domestic violence in the house.
But apparently the investigators went there and they didn't see anything, but there were real questions about did they do a thorough investigation or did they ring the bell and say, okay, we were here and leave.
And I believe they pled guilty to a very low charge of murder.
They were held responsible for something that they were very far away from when it took place.
I mean, we're going to start charging people with murder for not being good citizens.
Now, of course, this isn't Buenos Aires.
He's not in Brooklyn, New York, but that raises the standard on all of us as human beings to act.
And then you juxtapose that with Daniel Penny, who did act to save someone, almost went to jail himself.
It gets a little confusing.
Hey, I'd like to point out that Arthur brought it back to Daniel Penny, not me, who was still stuck with Daniel Penny.
So I just want to, I want to point that out.
Okay, Mark.
I like story time with Arthur.
Yes, exactly.
But I'm not so sure that this isn't a function of the Argentinian process.
It's similar to some of the European countries where the judge does the investigation.
There's a prosecutor.
The prosecutor kind of lays it in the lap of the judge.
And the judge is more of an activist role as opposed to an adjudicator.
Like in Italy.
Yeah, exactly.
And I think that's what's happening here would be my uninformed, unadmitted in Argentina speculation.
This is, I mean, we'll find out.
I'm happy to jump back and talk about Daniel Penny again.
Did you really like the Allen charge?
Did you think it was right the way they dismiss it without prejudice and it could be brought back?
I think the Senate's a good message.
Look at that.
You know, I mean, like I said, I'm giving you, I'm giving the pro-hoe all of her ammunition that she needs.
What is this?
Does it stand for prosecution hoe, like horror?
Yeah, I don't know what this nickname is.
I'm not going near it.
You know, I don't hear it.
That's exactly what it stands for, Megan.
Prosecution Ho.
I'm supposed to celebrate the horror label.
I object on my own behalf.
I object on behalf of Doug.
Okay.
Yeah, this is your chance to apologize.
I'm not hearing anything.
So now you got to go.
Segment's over.
It landed on a very dark note.
Arthur, Merry Christmas.
Mark, good luck.
Thank you, Megan.
To you two, and Happy New Year.
Merry Christmas.
Love you guys.
Thanks for coming on.
Take care.
All right.
See you soon.
And that will wrap up today's edition of Kelly's Court.
I'll allow Mark to use that word to me because the last time he did it, I laughed and told him it was okay, but it hasn't grown on me.
Now I'm actually going to start objecting to it.
He means it lovingly.
He's a defense guy.
He's trying to say I'm much more prosecution, which he's right.
I am.
But it's case by case.
I mean, you know, I was definitely not pro-prosecution in the Trump case.
I was not in the Daniel Penny case.
So, you know, I recognize very well that these prosecutors can be and they must be called out when they behave that way.
I hope you don't have any in your life this Christmas holiday.
And I look forward to getting you through it, if you do, with some exciting and interesting true crime episodes all week.
We'll see you tomorrow.
Thanks for listening to the Megan Kelly Show.
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