Jan. 22, 2016 - Freedomain Radio - Stefan Molyneux
01:23:07
3182 Making a Murderer: Is Steven Avery Guilty? | Lionel and Stefan Molyneux
The Netflix documentary series “Making a Murder” examining the life of Steven Avery who served 18 years in prison for the sexual assault and attempted murder of Penny Beerntsen – only to be exonerated in 2003. As a multi-million-dollar civil lawsuit was underway against the Manitowoc County, Wisconsin police department – Avery was arrested and charged with the murder of Teresa Halbach, a local photographer.Stefan Molyneux and former prosecutor and licensed trial lawyer Lionel (Michael Wm. Lebron) look at the case, evidence which wasn’t included in the documentary series, innocent until proven guilty, the confession of Brendan Dassey, the work of lawyers Dean Strang and Jerry Buting, prosecutor Ken Kratz and much more!Lionel (Michael Wm. Lebron) is an Emmy Award winning legal analyst and news decoder, a former prosecutor and licensed trial lawyer with The Lebron Firm.Website: http://lionelmedia.comYouTube: https://www.youtube.com/user/LionelY2K
I'm here with Lionel, open brackets, Michael William LeBron.
He's an Emmy award-winning legal analyst and news decoder, a former prosecutor, and licensed to trial lawyer with the LeBron firm.
Thanks, Lionel.
A great pleasure.
I've watched your videos for quite some time, and I'm looking forward to the chat.
As have I, sir.
I'm honored.
I'm horripilating with excitement.
All right.
So we hum and vibrate with excitement.
So let's talk about this documentary, Making a Murderer, which has pretty much the whole planet up in arms to one side of this, dividing humanity along quasi-religious lines.
Did you watch it last year?
Did you watch it this year?
When did you first notice it?
I watched it when it came out, and I thought it was very, very interesting.
You know, I find, having been in the business and having weathered the storm, dare I say, of OJ, it never ceases to amaze me how little people understand, specifically Americans, about the American criminal justice system.
All right, so what are the gaps?
Look, we're going to have some spoilers in here, so just in case you haven't watched it, let's both pause for them.
So what is it that people are not understanding about the justice system, sort of being misled in a sense by the documentaries?
Well, first of all, if you're subject to spoilage now, you really don't know what happened now, then go back to the coma.
If you really can honestly say, you don't know what happened, OJ, don't tell me!
All right, so, but here's the thing.
First of all, let us differentiate between being the policeman, the detective, and the juror, okay?
The issue is not who actually killed Terry Halbach.
The issue is, can they prove Stephen Avery did it?
Two completely different concepts.
To me that makes sense, but to many people it doesn't.
I know, as a matter of fact, that O.J. Simpson killed those people, without a doubt.
However, I could see reasonable doubt based upon the presentation of it.
You can suspect somebody you know.
You can know, I know that son of a gun did it.
I know who he is.
It's my neighbor.
He said he was going to kill his wife.
But yet there's no proof of it.
So the difference between detective and juror are two completely different things.
Right.
So the detectives, of course, are looking and have a wider net to cast in terms of the evidence they gather than can sometimes be presented to the jury.
And I think that...
So we're seeing sort of the...
Well, I mean, the...
The piece, the documentary has been referred to as defense advocacy.
And, you know, I think it clearly comes down on one side versus the other.
But nonetheless, they cast a wider net than that which is seen by the jury.
If the jury had watched the movie, and only the movie, then they'd come to the conclusions, perhaps, that a lot of people seem to have come to.
But they saw some things that weren't in the movie, and a lot of things that were in the movie, they weren't even told about.
But the jury shouldn't see what's in the movie.
The jury should not be hearing about extraneous collateral matters that have nothing to do with the facts.
Look, you may be an absolute horrible person who lives a, you may be a reprobate, you may be a disgusting necrophile, a frottagist of the first order.
That may not have anything to do with your being on trial for retail theft.
Or anything else for that matter.
These are collateral issues.
You don't bring all of this in.
And what also amazes me is the number of people who are saying, here's what the jury didn't hear.
Nancy Grace is a colleague of mine.
She's fantastic.
Why didn't they hear about the fact that he enjoyed burning cats?
Well, what does that have to do with this?
I think that's very interesting.
Burning cats?
And if this is a spoiler, I'm sorry, but he did incinerate cats.
He is an ilerophobe of the first order and a pyromaniac.
So what does that have to do with anything?
But look at it this way.
If ever you had to have the perfect balance of hmm versus How could they frame him?
I mean, right before he is to have, basically, collect on a 36, potentially, million-dollar settlement, on the eve of this, as they're taking depositions, they're about to sign the deal to render the check.
At that moment, Before this county may go into bankruptcy, because there was a suggestion that the insurance policy, which would have covered all of this alleged wrongdoing on the part of law enforcement, that at the 11th hour, lo and behold, he's arrested for murder.
Now that's good.
You've got to admit, you know, that's interesting.
Then you realize, could they have possibly orchestrated all of this to save themselves the 36 mil, to get back after Avery for having to, you know, embarrass them?
That's, that is, I mean, that alone, if that's even possible, is impossible.
It's a great story.
Truly terrific.
And then you ask yourself, Could this person be as stupid as he possibly appears to be to have all of this evidence that he leaves right there on his property?
Could it be that somebody could be this stupid?
Could the police be so inept that after seven attempts, seven searches, lo and behold, on the seventh time, they find this key?
It is this incredible balance of facts that are mind-boggling.
It's a fabulous case.
Tremendous case.
Well, you know, the challenge is, of course, that this guy, Stephen Avery, with a sort of recorded IQ of about 70 or two standard deviations below the average, you know, not the sharpest tool in the shed, as the saying goes.
This I think is what people have a tough time understanding, that he's such a bad criminal that he cleans the key of her DNA, but leaves his DNA on it and leaves it invisible sight Why bother to go all this point?
And then he burns, he scatters her bones somewhere around the property, but then keeps some of the bones near his house.
He keeps the cell phone, he keeps the PDA, he keeps everything right by.
He's also such a forensic genius.
That he is able to scrub all traces of Theresa Hullback's DNA from his bedroom, from his garage.
And he kind of scrubbed all of the DNA because they found Avery's DNA in these places, so it wasn't like it was completely nuked with bleach and it was totally clean.
So he's such an idiot that he leaves the key in his room, but he's such a genius that he's able to scrub all possible DNA from what must have been an incredibly gory, spattery, messy, ugly, stomach acid-fueled mess in a very crowded garage.
And I think that's where people are having a tough time.
Not necessarily.
You know, it's funny, going back to, you know, people...
Become experts overnight in blood splatter.
And we saw this during the OJ case.
That was our frame of reference.
People would say during the OJ case, how come there wasn't more blood in the Bronco?
How come there wasn't more?
And I would always respond, how come there was any blood in the Bronco?
Because the reason why you don't have anybody's blood in your car is because you didn't kill anybody.
But we have this idea of how much blood there should be.
That when there's a gunshot wound, that blood sprays out.
That when you slit a throat, blood sprays out.
Sometimes, believe it or not, and as a former prosecutor, and after having somebody who has dealt with the forensic aspects of this, sometimes after, maybe not in this case, but in the case of stabbing, internal bleeding, blood pressure drops, Blood spraying is less than you would think.
Sometimes it's very unbloody, but yet people have this idea of how much blood there should have been.
And also, this pulverized...
There are Indian burial grounds that are more intact than what we have here.
I mean, basically, this...
Pulverization of this and how we're able to tell from this cause of death and the like.
The other issue which is the most troubling to me, here we have Stephen Avery, who you say is one standard deviation short of a load, who has the intellectual capacity of a soap dish or a speed bump.
Below that is, of course, Brendan Dassey.
That is, to me, out of everything, if there is a seemingly more horrible situation, it is that interrogation.
Okay, hang on.
Just before we...
I just want to finish up with some of the evidence stuff here, too, because it's all speculation.
Nobody knows.
And it's likely that nobody ever will know.
You know, if there was some massive conspiracy, it's not like they kept their notes on the cloud or something like that.
So...
But here's the thing.
You know, okay, IQ70, you know, you're not going to have him do your taxes.
On the other hand...
His entire job has been car disposal.
That's what he does.
They got 4,000 cars on a couple of hundred acres.
And what he does is he gets rid of cars.
That's his job.
The very day before, he's using the car crusher.
He's squishing down the car.
And then he has a car that he has the most incentive humanly possible to get rid of, which is the car of the murder victim.
And does he take it to the car crusher?
Where he was working just the day before, where he's crushed probably hundreds of cars.
No!
He takes it and in some bizarre thing, like some Looney Tunes moment, he leans a couple of sticks against it.
Right.
Even though he's able to scrub DNA from an entire messy, two potentially messy crime scenes, the bedroom and the garage, he doesn't use that.
He also, there's a smelter on site, but instead he uses a burn barrel.
And again, if we're going to say he's such an idiot that, you know, and I don't mean that sort of like bad way, but if his IQ is so low, he's such a bad criminal, that he not only involves somebody else in the crime, but also he can scrub the whole thing clean and yet at the same time make so many ridiculous errors that the first thing to cross his mind would be to crash the car because he knows how to use it.
Let me stop you right there.
Let's assume you are, in this particular case, a one-man jury.
You're it.
I am the prosecution.
And I ask you, did I, the prosecution, prove beyond and to the exclusion of every reasonable doubt that Stephen Avery killed Terry Halbaugh?
Right?
Now, you're talking about things that Defy logic.
And I would say, excuse me, even though we can't have this, I'm not asking you whether this makes sense.
I'm not asking you, if I were to pitch this as a story, whether you as a producer would say, no, this is not the way to do it, or whether you yourself would involve yourself in a murder.
No, no.
I'm asking you, do you doubt that we have proved the case?
There was the body.
There was the car.
There was the evidence.
Right or wrong.
And as a prosecutor, I would say, you know what?
Beats the hell out of me!
I'm telling you right now.
That's not my job.
I'm not trying to get rid of every conceivable doubt or things that don't make any sense.
Because let me imagine this.
Imagine we have step A, B, C, D, and we have this perfect chain of logic, okay?
Assume, arguendo as we say in law for the sake of argument, we have this chain.
Let me go back after the fact and remove B, D, G, L, now put it together.
Same facts, but you have this gap, this like the missing link of evidence.
Okay, we have a lot of those.
I don't understand any of this.
I don't understand how, let me throw into the mix.
The people that we have, the characters involved, the prosecutor, you cannot get creepier folks, which has nothing to do with the facts.
Let me go back to my original question.
If you were the juror, and I'm saying, what is your verdict?
Guilty or not guilty?
I would say, well, guilty.
But, boy, there's no such thing as, for example, if I said to you, cause of death, is he dead?
As a medical examiner, you can't say, well, no, he's dead.
I can't believe he's dead.
I can't believe this killed him.
I can't believe somebody in this particular shape.
But he's dead.
So that's all that we have here.
Now, all this stuff on television...
Has to do with whether, you know, things were planted and whether this could have happened.
Yes, I understand that.
But in terms of that jury, and by the way, going back into it, Judge Willis, who made Judge Ito look like learned hand, who was the third, the fifth prosecutor.
I mean, you could have given, I don't think the defense caught a break ever in anything.
And if that doesn't lay the groundwork for some kind of an appeal, I don't know what.
But what I want people to understand is that even though you and I might say, none of this makes any sense, you might say, but as a juror, I'm saying, guilty!
Because...
Okay, but here's a challenge too, which is that one of the questions I as a juror would have is...
Were there alternative suspects that were investigated?
Or was it like, we got this guy.
You know, this guy is suing us.
He's embarrassed us, humiliated us.
We just got deposed.
We're at personal liability risk.
We might even go to jail if it turns out we fabricated or falsified or railroaded him in the previous 85 conviction.
So what I would say is, was there evidence that the police got the tunnel vision or focused on one guy?
You know, there were some other stuff that, you know, that the ex-boyfriend who deleted her voicemails and so on on her phone.
I mean, my question would be and of course, as far as I understand it, this stuff was disallowed because under Wisconsin law You have to prove significant motive in order to be able to provide alternate theories of the culprit to the jury So this was entirely disallowed now again I guess it's according to Wisconsin law but as a juror I would like to say I would at least like to think that the police looked at some other people and excluded them as potential suspects Okay, let me answer that question Let me try to go back in time and do this closing argument.
No!
We had tunnel vision.
Absolutely!
No.
And not only that, do we have total vision, but we're glad we got this son of a gun because he was going to sue us!
He was going to bank up our county!
And we hated him!
And we didn't want there to be any other people, but he did it!
And we're so good at this detective stuff that sometimes our tunnel vision works out.
Sometimes the reason why we have tunnel vision is we're saying, who else did this?
And if you don't want to know why we had tunnel vision, then I'm going to bring in a lot of evidence which you wanted to keep out.
I'm going to bring in this fellow.
I'm going to talk about how he has basically, he had this fixated focus on Terry Hallback, if you want me to do that.
But you're right.
I mean, it is, and remember, this is the detective part.
This is the, let's watch the Netflix video crowd.
Let me also say something, too.
This was a very good documentary.
Was it biased?
Yeah, I guess.
Was it very good?
Yes, very effective.
The music, the cinematography.
This was their first attempt.
My God, it was amazing!
But nothing that they said, nothing that in that documentary ever made it look like they really planted all of this.
I mean, it is everything.
Remember the blood vial with the puncture, the aha mode.
You know, when you watch that, oh my god, they even said this is the right letter date!
Until somebody said, well, they all do that.
They all have a puncture hole.
How do you think you get it in there?
You don't take the top.
On the other hand, though, the guy who was being sued was the guy who had access to the sealed evidence.
The evidence was unsealed and opened without being signed out.
Just like the guy was on when crucial evidence was found, the guy was on the lot without signing in when he wasn't even supposed to be there.
I mean, if you were to say everything pulled out by the Manitowoc Sheriff's Department, wherein they had clear conflict of interest and had publicly communicated their desire and their need to stay out Of the investigation, because the investigation is such a clear...
So if you were to exclude all of the evidence produced by those who should not have been anywhere near the site doing the search in the first place, what would happen then?
If we could exclude the evidence produced by the people with a conflict of interest, the case would be far away.
I would love to do this.
I would say, oh yes, ladies and gentlemen of the jury, well, you found us out.
We wanted to get this guy so bad that what we did, in addition to everything that was just cited by going into the locker and getting the blood and removing the EDTA, which we can argue about that one, but that is the chemical which allows the blood to remain uncoagulated.
When you keep a blood vial, With liquid blood and it doesn't clump up and become coagulant.
It has this EDTA surfactant in there.
So we were so good, we basically went in, got the blood, either took the EDTA out or somehow paid off some shill to report.
Or the evidence that the test is inconclusive because it's not sensitive enough and hasn't been run forever.
And at the same time, happened upon this poor woman that we said, we're going to get her.
Why?
Because we know that she's gone to the Avery property and he's a creep.
We've got to kill her.
We've got to burn her body.
We've got to pulverize her bones.
We have to bury them.
We have to bring her car onto the property, put some tree limbs on it.
We have to go and we have to then dupe Which, by the way, in terms of dupage is the easiest thing to do.
But to take Brendan Dassey and coerce him, all right, fine.
That's really irrelevant.
We're going to have to do all of that in order just risking everything.
Look, I'm a sheriff.
I mean, I'm going to retire in a couple of years.
I'm going to give it all up in terms of conspiracy.
And by the way, let me just throw this one out.
I've never been at all swayed by people who say, do you know how many people have to keep this quiet?
People keep things quiet all the time.
Like you cannot believe.
So that never worked on me.
But if this had to be done, look at this.
And by the way, Ladies and gentlemen of the jury, with all due respect to my witnesses, look at this blue ribbon team I've got.
You think these people put this on?
Do you know what would have to be done in order to have all of this lined up just to get him?
Why didn't we just do this?
Oh, I don't know.
Kill Avery!
Let's just take him out one night when he's driving down the road and just put a bullet in his head.
No, we're not going to do that.
We're going to go, we're going to concoct.
This, we're going to risk being caught, kill an innocent woman that he had nothing to do with, just to prevent a $36 million break?
Well, okay, it's a little bit more than a lawsuit, because if there had been significant wrongdoing and they'd broken the law, then it would have been a little bit more than cash out.
But here's the other, I mean, another alternative, of course, just as a hypothesis, is that somebody else on the Avery property killed her, right?
There's some suggestions.
His brothers also had a history of violence and against women in particular.
It's really not a fantastic family all around.
So if one of the other brothers had killed her or somebody else on the property, again, just a hypothetical, then everything would have been in place.
They just needed to get it on this guy.
That's one possibility.
The other possibility is that they...
And I think this is probably closest to the truth, if we can even get close to the truth in such a hypothetical scenario.
But I think that they thought he did it, but they needed that little push over the cliff.
You know, and so it's possible that there was all this evidence, but it was all circumstantial.
They couldn't find something, or they were afraid they couldn't find something to tie him directly in a physical way to the murderess, and he might get off on reasonable doubt.
So it's possible, because there's this blood smear.
The two blood smears in the car are problematic.
He had a cut on his right hand, but it doesn't seem to match up to where you'd put the ignition.
Plus, he's super great at cleaning everything.
Why would he miss the blood right there in the open?
Plus, there's no fingerprints anywhere on the car.
Now, of course, if you're manhandling the car, you open the door, you've got to drive it somewhere, you've got to move it.
So you can't find any fingerprints.
And so...
If there's no fingerprints, he has to be wearing gloves.
But if he's wearing gloves, why is there blood going from his cut?
So again, these are just issues that...
And the blood in the back, I mean, where the hell was this woman killed?
In one of the prosecutions, she's killed in the bedroom.
In another one of the prosecutions, she's killed in the garage.
But her blood is in the back of the car where the state says she was never even injured.
So this again remains a challenge.
And so I think that they had some problems with the case.
And whether they were tempted or not, we'll probably never know.
But I could see how the temptation might arise.
To put a little bit extra to get the guy they thought did it.
Everything that you said is completely consistent with logic.
Look, if you and I wanted to work backwards, they come up with our story.
And I would write this script.
I say, okay, good.
And you say, okay, y'all stop.
This is great.
I'm going to put blood in the back seat of the car.
And I say, wait a minute, why?
Just throw a monkey wrench in it.
Throw blood in the car in the back.
How did that happen?
Precisely.
Remember, let me give you a really stupid example.
Really a stupid example.
One time, we were doing a case, it was a murder case, and I was looking at some pictures, and I turned to the detective years ago, and I said, this is interesting, I said, what is this one shoe here?
It was a victim's shoe.
And I just was making a joke, you know, sometimes you find a shoe in the middle of the street, and you wonder, where's the other shoe?
How do you lose a shoe?
And I was just, the case was pretty much wrapped up.
But I said, did you ever find the other shoe?
And he said, no.
He went back to the crime scene, looked, couldn't find it.
Okay.
Sometimes there are things that just don't make any sense whatsoever.
You look back and you're saying, did I miss something?
Why do I not understand the sequencing?
Why do I not understand blood in the backseat?
What difference does it make?
I sound like Hillary Clinton.
What difference does it make?
I guarantee you.
Here's another one.
Do you know what it would be like How freaked out you would be if you were being on the phone?
These people in an accent that, I mean, it's Fargo meets Sarah Palin meets, you know, Deliverance.
I don't know what this is.
An equanimity.
And a little bit of Elma Fudd thrown into good measure, I think.
But an equipoise.
This cool, like, I don't know.
No, I don't know.
I wanna...
Yep.
Yeah, even when he gets out of prison, after 18 years, yeah, voila, let's go.
So, I don't know about you, but if somebody caught me, and I'm on the phone, and they're...
I don't know.
Going back, I hate to do this, to the OJ case again.
After he killed these people, after he slit the throat, he was sitting on a plane on a trip, on a flight to Chicago, with this guy talking and conversing like it was nothing.
How does that work?
I don't know!
I don't know.
I will never be able to find beyond every reason.
Why her?
Why this person?
Why any of this?
Why would he even enlist the help of this, to an extent, going back, and I'm sorry, again, to Brendan?
What do you need him for?
Of all the people, you don't need him to help in anything.
Believe me, especially a murder.
Now, as far as we know, This might have been, and this is a pretty creepy guy, Avery, this might have been his first murder.
I don't know about you, but let's just assume It's his first.
And for some reason, by God, he's got to kill this woman.
I got to kill her.
It's not enough.
He's a rapist.
He's a cat arsonist.
He's all of these things.
But for some reason, by God, he's going to chain her and kill her and enlist the help of this idiot?
I don't understand that either.
I don't understand any of this.
Why wouldn't someone Who framed him, who put the car outside, not crushed the car.
Why wouldn't somebody during the seventh or eighth time of searching hide the key?
Why doesn't somebody link or somebody say, listen, you can't leave a key in the middle of the floor.
Put it behind something.
Shift it.
I don't know why.
But let me go back to my question to you.
When I would instruct a jury, if I say, ladies and gentlemen of the jury, I'm going to ask you a question.
I'm the prosecutor.
Make me this deal.
If you're going to find doubt, if you're going to find this person not guilty, make sure you have a reason for it.
Don't have a reason.
Your reason of, I don't know, that's not a reason.
A reason could be, I have a doubt because I believe the alibi, had there been an alibi.
I have a doubt that...
I believe that the evidence was tampered.
Going back to the OJ case, they made a very clear case.
This was contaminated.
It's different than saying, you know, this blood...
I mean, his contamination eliminates, you know, the victim's blood but keeps his...
Okay, fine.
That's reasonable doubt.
That's it.
I turn to you, sir.
Do you have that doubt?
Would you sit there and say, here's why?
But see, but this is the challenge, Lionel, which is I can't, I don't know what the jury saw.
I've obviously not read all the transcripts and I can't unsee the things that I've learned about Stephen Avery, about his history, about his past, about his habits and all that kind of stuff.
So I'm not going to try and put myself in the juror's chair because I wasn't there and I didn't see all the evidence that was presented and withheld.
But I think that there's reasons to look into the potential for police and prosecutorial misconduct.
And when you do that, you know what's so funny?
I've got to stop right there.
There are many, many people in this country right now, not necessarily African-American, but people of color, poor, people who've been involved in this, who say, where the hell have you been?
Where have you been?
You think this is good?
How about the jailhouse snitch who says something very simple, I heard him say he killed this person, and they also made me a deal to get out of prison.
This happens all the time.
All of a sudden, we're just thinking, oh lordy, there's a miscarriage of justice.
Are you kidding me?
Not only, we have had In the case, in the past, experts, we may have very well executed somebody in that famous Texas arson case that they just made stuff up.
Made up testimony.
There were people, there were junk science, there was a forensic odontology, bite mark evidence, stuff that they just made up.
You know, with all due respect, where the hell have you been?
You think this is good?
This is nothing.
All I'm saying is that here's the good news.
99% of the cases, it's a plea to something.
All right?
This is the weird.
Oh, yeah.
Okay, let's hold off on our challenge to the legal system as a whole, because I think it's time to turn to To me, the true heartbreak of the series, obviously, Theresa Hulbach's brutal murder was horrible and heartbreaking.
But man, Brendan Dassey, watching that kid get interrogated was like putting my heart through a cheese grater.
I mean, because he's all like, hey, I've answered a couple of questions, but remember, I've got to get back to school because I've got a thing due.
And then I want to go watch WrestleMania.
And so he has no clue.
He's confessing to murder.
He has no clue what's going on.
And even after they say, well, we have to arrest you now.
You knew that was coming, right?
We have to arrest you.
He's like, yeah, but I mean, what?
I'll be out of here tomorrow, right?
Because like...
This kid, the idea that he would be there with no representation and his mother later says that she wanted to be there but the police stopped her.
The idea that these trained, high IQ, experienced interrogators are cornering this kid with an IQ lucky to get out of the single digits and that this is somehow going to prove something is to me astounding.
This reminded me of the time when Bill Clinton came back and secured the execution of Ricky Lee Rector.
Remember this?
This was a fellow who was on death row who tried to shoot himself or kill himself after he was holed up or something, blew out half of his brain, lived, and was so demented and lobotomized by this self-inflicted wound that when he was being executed, They said, Ricky, do you want your dessert?
He says, no, I'll have it afterwards.
After my execution!
I'm watching my weight.
Most people say, you don't give a damn whether the guy's got a PhD.
It doesn't mean anything.
The law does, however, have specific rules about competence.
Going back to this case, this is the horrible.
It goes to show you what constitutes coercion.
The number of people, I cannot tell you, who have not only been forced to confess, but go back in history, probably the crime of this century, last century, was not OJ, but the Lindbergh kidnapping.
The Lindbergh kidnapping knows no parallel.
Do you know how many people Claim to have been the kidnapper.
People who just come forward.
It's amazing.
During the Boston Strangler case, Albert DeSalvo, the people who come forward.
So not only are people coerced, there are people who admit.
So again, goes back to our pool of why do they do that?
We don't know why they do that.
But to think that you would want to do anything.
Look, there's one thing I found out.
When people want to tell you something, they tell you.
Believe me.
And the nicer you are, the more powerful it is.
If I said, now, Brendan, you've got your mom here.
Yep.
This is your lawyer here.
Yep.
You know you don't have to...
Oh, my God.
It's even more powerful.
But to think that anybody, including the judge who heard this and said, I don't think he was coerced.
You don't have to coerce him.
He didn't know where he was.
He didn't even know what he was talking about.
And they're basically doing...
You've seen cold reading and warm reading how carnival charlatans will basically read it.
So just tell me, who shot her in the head?
I didn't say anything.
He did.
Can I go now?
Can I watch WrestleMania?
And he said they got in my head and all that.
And he said to his mother, when she said, well, why did you say those things?
Why did you tell them these things?
And he basically said, well, I guessed what they wanted, just like I do with my homework.
I know.
And they fed him stuff.
Like, to me, okay, obviously, if he volunteers information that only the police know, which they have not referred to prior to him, right?
Like when they were trying to get him to talk about shooting the woman in the head.
What happened to her head?
What did you do?
And he's like, uh, cut her hair?
Like, he's just guessing things.
You know, they painted a pumpkin, put a smiley face, put a clown face on, put in an extra eyebrow.
Like, he's just randomly guessing stuff.
Draw...
Draw this for me.
Draw her tied up.
Draw her...
Now, let me...
The problem I have with most people who deal with this, they don't care about due process as much as, well, did it happen or did it happen?
I don't care.
That was good police work.
If somebody's...
Look, all we know is we got the guilty guy, and that's it, and hey, that's the way it goes.
I saw this And I, that was the most, the worst part because, you know, we have, we're so careful in this country not to say the word retarded or the R word.
We will use euphemisms to an extent that we mistake the fact.
He wasn't learning to say, he wasn't a little, he didn't have ADD. No, no, this was somebody who was fundamentally He's organically unable to understand the consequence and the gravity of what he was saying.
He was like a six or seven year old mentally.
He's reading at a fourth grade level, if that.
And what we do is we have, we love to talk about Miranda warnings.
Where we say you have the right to remain silent, but there's the part that people forget.
It's not so much only that what Ernesto Miranda taught us was the giving of the warnings, but you have to have a knowing and intelligent waver.
You have to know what you are wavering.
Forget what you saw, but you truly understand the gravity, the consequence of what you're doing.
That is the part out of this which to me was the most horrible.
And let me also tell you something.
This goes on all the time.
And let me also tell you another thing, too, from a viewpoint of a prosecutorial background.
When you have the mother there, sometimes you'll get more out of that kid When the mother says, tell him!
Believe me when I say this.
So that was just horrible.
And his lawyer!
What was that about?
Okay, hang on.
Just before we get to his lawyer.
Okay, so they didn't even end up using this confession in the trial against him, as far as I understand it, because it was so questionable.
And so what I found particularly egregious was, I mean, the state has the highest burden of proof.
You don't have to do anything.
They've got to prove like crazy.
And if they don't, they fail.
Of course, the state has all of these resources that the defense doesn't.
The power of subpoena, the search warrants, you know, all the massive resources of the state and its coercive apparatus.
All of that is on the side of the state.
I think it's incredibly unfair For Katz and the other guy, I can't remember his name, they call a press conference and they spill out this confession in the most lurid kind of detail, the confession which they don't even end up using in the trial because it is so questionable, but they spray all of this out.
Completely tainting the jury pool, in my humble opinion.
And that seems to me, a trial before a trial, there's no cross-examination, there's no requirement to provide physical evidence, there's no playing of the actual tape of the interview, which would, I think, give people a clearer view.
That seems to me kind of stacking the deck in terms of the prosecution's favor for them to be able to have that liberty.
Yeah.
Sacking the deck.
Are you kidding?
Look, there are many, many rules.
In fact, in many federal jurisdictions, there are local rules that say you can't say anything.
Why are we even having any press conferences?
This is a court.
This is a...
No, you don't do anything.
Look, I still like the fact that there are cameras in the courtroom.
The Sixth Amendment provides the right to a speedy, a public trial.
Public.
We don't want star chambers.
We don't want that Ceausescu lunchroom justice, you know, under the...
We want you to know what's going on, to see this.
I mean, look at the jury.
Did you see him shuffle out with flip-flops and, oh my God, I mean, see this.
This is exactly what's going on in courtroom after courtroom.
However, I cannot believe why there wasn't a restraining order, a protective order, why somebody didn't say, what are you doing?
I don't, you know, the lure of the Klieg lights, you know, look at me.
Look at me and this wink, wink, wink.
And then forget the defense.
Look, the prosecutor is in the same room, and then here comes the defense in the same room, grabbing the lectern immediately thereafter, doing one-upsmanship with a pool of media folks.
I couldn't believe that.
Why isn't there A restraining order, a protective order, a gag order.
This is a trial.
This is a murder trial.
You know, there are rules that we have.
Divorce cases are equity trials that we have.
Divorce, juvenile, child sexual battery cases where we tell the jury, we don't even have juries.
We don't want anybody to be a part of it.
How can that happen?
This is the post-OJ world.
Everybody wants their five minutes.
Dean Strange now is a hero, which is great.
He should be, in many respects.
He was terrific.
But I'm telling you, this is the exception.
Courtroom after courtroom, all over, there are great judges, great prosecutors, great public defenders, great...
And it's done orderly, with a degree of decorum and respect.
This is an aberration.
This is just...
I'm sorry.
Well, no.
It struck me that Dassey's confession, for want of a better word, was not used in the Avery trial where they were up against highly, highly competent lawyers.
I mean, again, I don't deal with lawyers very much.
I don't know a good lawyer from a bad lawyer, but they had great hair.
So that's the key.
So they didn't use that confession in the Avery trial.
But then they used it in the Dassey trial when I don't think he had quite as high-priced a set of lawyers.
And that seems, because of course, if they had tried to use it in the Avery trial, I would imagine, if it was knocked out because it was not got the right way or whatever, then it probably would have been less strong to use in the Dassey trial.
So I think that kind of selective stuff, again, seems, given all the power that the state has in prosecution, it seems like that was kind of selective application of the court.
Well, the jury could have excluded it in the DASI case.
If they wanted to, they could have taken into account.
In fact, just put him on the stand, which he did.
Start talking.
This is it, folks.
This is your witness.
He would have said anything.
He wanted to go home.
I mean, that would have been different.
And also, let me bring this up.
Isn't it interesting that he's found guilty of mutilation of corpse, but not Avery.
It's weird.
How can that be?
Happens all the time.
Look, all I know is that in this case, if you look at this, What we know outside of the jury versus what we know in the jury, you would think the jury would say, yeah, but we heard more during the trial.
No, it doesn't work that way.
It's the opposite.
Right now, We, knowing what we know from the extracurricular collateral matters, would have probably said, right now we're going to find a guilt.
We have more doubt, reasonable doubt, as to everything.
I can tell you right now you're wasting our time.
But in a court where everything is limited, you have this very minute, under the guise of being fair, Under the argument that this is the fair way to do it, sometimes it's that collateral stuff that comes in which may be beneficial.
However, if you do that, you then turn to Avery and say, okay, we'll let you bring in all the stuff you want if we can bring in all the stuff we want.
How about how you practice self-love in front of cars that are going 40 miles an hour?
You want to talk about that?
Let's talk about burned cats.
Isn't that something?
Let's talk about this propensity you have to burning things.
Similar fact evidence.
Bodice operandi.
We got the right guy out of all the ways to dispose of a body.
Isn't that interesting?
Let's also talk about things that you were overheard saying about torture chambers and all this other kind of stuff.
So when you allow everything in, you run the risk.
Of two things.
One, giving the jury a better understanding of who this person is, because where there's smoke, there's fire, but also contaminating it with extraneous collateral evidence that has nothing to do with this case.
Yeah.
Now, help me understand something, and I don't mean to put you on the spot with legal challenges, but there's something that I was reading about that I have a little bit of trouble processing, and maybe other people have read it as well.
It goes like this.
So one juror, when they said to a juror afterwards, why did you Vote guilty, and what do you think happened to the murder victim, right, to Terry Halbach?
The juror said, and I quote, torture and rape.
Then he shot her in the head.
He cut her up and put her in a burn barrel.
Now, apparently this is significant because no evidence of Teresa being raped and tortured was actually allowed in Avery's trial, which I would imagine is why the desecration of the body was not.
That information came out of this, the press conference given by Ken Kratz, the prosecutor.
Now, apparently, this is significant because a legal opinion here is that if a jury made its decision on inaccurate, improper, or withheld evidence, then there are absolute grounds for a new Does this make any sense to you?
I can't quite follow what's been going on here, but people tell me it's significant, so maybe it is, maybe it isn't.
First of all, there was a wonderful case, Michigan against Tucker.
And I'll never forget this wonderful holding of the Supreme Court has said, a defendant is entitled to a fair trial, not a perfect one.
I love that one.
Number two, in order for you to impeach the verdict, which is another thing, you can show, for example, that if they drew by lot, which is one of my favorites, there was some deliberate, really official misconduct, something that was beyond Confusion or something.
You may be able to impeach the verdict and perhaps maybe have the verdict set aside by virtue of this contamination.
But then you have to ask yourself, well, if they were to have heard something, let's assume, arguendo, that in this particular case, this juror and the other said, yep, We went home at night, and contrary to the, let's say, the instruction that we were told not to watch or to discuss, because they weren't sequestered, I don't believe.
I don't believe there was a sequestration order.
No, they were back and forth, I think, a lot of driving.
Yeah, so anyway, so in that particular case, let's assume they say everything.
Yep, we went there, and you then have to ask yourself this particular case, does that so...
Contaminate and affect the verdict.
And by the way, there's this wonderful appellate standard, which I love.
If given the overwhelming evidence of guilt Can in some cases, and I love this one, can in some cases the overwhelming avalanche of guilt be so great that these momentary wrongdoing, yeah, that was wrong, but no jury in their right mind would have in any way seen, you know, or view this otherwise.
That's a tough one.
Because, but certainly that's grounds for appeal.
And especially When you have to ask, how do you get these jurors to come forward?
Let's hope, for Avery's case, that they love to bask in the warm light of fame as a corrupt juror!
A juror who violated his or her oath!
But, I hate to say it, this happens You know, all the time.
Why there's not sequestration.
In a case of this border, especially in a little town You know, if you're New York City and you're part of a murder trial, okay, it's one thing.
It's not that there is a sophisticated degree of juror compared to Hooterville and Green Acres and, you know, Fred Ziffel and this group.
It's not that, but when this is the singular most important case, sequestration may have been something that, I don't know if anybody even asked for that.
But yes, this is certainly going to be But then again, you have to ask these people later on, Mr.
Juror, are you saying that you found Mr.
Avery guilty because of this?
Or are you saying, no, I found him guilty because of the evidence, but you ask me, what do I think happened?
What I think happened was they strangled her and whatever, but that's not why I found him guilty.
I found him guilty because he found her car, it was on his property, it was his burn pit, her body, her body, that's why I did it.
All right.
There's something that I couldn't process at the time because it seemed so insane, so outlandish, and I'm sure you saw this part as well.
So Dassey's first lawyer, this Kaczynski fellow, hired a private investigator, Michael O'Kelly, and in a jaw-dropping sequence, he seems that the investigator hired by the defense lawyer is pressuring We're good
to go.
And is it not the case?
It looked to me pretty much like his defense lawyer was kind of working with the prosecution to get information, the drawings and the confession that helped secure a conviction.
Now, Dassey said he wanted a new lawyer because his lawyer thought he was guilty and the judge did not allow it.
But eventually, I think the judge, didn't he dismiss Kaczynski after he allowed Dassey to be interrogated by police without a lawyer present?
Later on, in fact, at this particular point, I know, you better stop doing that because I got news for you.
This is nothing compared to what's happened in the past.
You just saw this for the first time.
This is your first rodeo.
It's worse.
Let me say how bad it was.
When I was watching this, I don't know if I wasn't paying attention and I'm looking and I miss who this investigator was.
I thought...
Are the cops interrogating him?
I thought he was for the prosecution.
I thought, how did this happen?
And I realized, that's the defense lawyer?
Now, it's one thing if you're putting him through this, maybe as a way of testing his mettle to see whether he can withstand and endure withering cross-examination.
Yeah, you want to see if you can put him on the stand, right?
If he can handle it.
But remember what the defense lawyer is doing and his team.
The defense lawyer, I am acting as though I am saying what you would say if you knew what I knew.
I'm your advocate.
You have told me you didn't do this.
Or maybe you did tell me you did it but I have nothing but your best interest at heart.
Where is this video even from?
Where is this?
How did this get out?
How does anybody even have this for the documentary or anything?
If I was, if I represent you, and I've got you on a videotape saying this, I'm going to say, let me see that tape.
I'm going to throw it in the burn pit.
Because I don't even want this getting out.
How did this even, who saw this?
I mean, first of all, it makes me look bad.
Forget you.
I'm going to come across as the world's worst defense lawyer in the history of defense lawyers by saying, this is advocacy?
But yet, when he was sitting there and the judge was saying, do you like him?
He said, well, yeah.
And the most poignant, because sometimes out of the mouths of babes, so to speak, when they said, well, why do you want to do a lawyer?
He said something like, I don't think he, either he's listening to me or he's helping me or something.
And through the simplicity of the message, it was all the more dire, his frustration.
And the look, the smirk, Of the lawyers, he walks out like, well, I'm just kind of here.
I don't understand how any of this could possibly be happening, especially when somebody says, I'm a defense lawyer.
This would be great for my practice.
You know, I could do pretty well here if I come across somewhat competent.
I might actually benefit from this.
This might be the greatest marketing ever for no other reason than me looking like F. Lee Lachinsky or whatever.
I might benefit from it.
No!
This didn't happen.
It was like this small group of folks, everybody in, you know, on it.
But You know, I understand that in order for people to say, well, I don't really like my lawyer, during a murder case, you take whatever standard the case law provides, and you give it, you kind of tweak it a little bit.
You say, yeah, but this is murder.
This is a young man.
For the rest of his life, he's still, I mean, he's kind of understanding it right now.
But that Why this isn't subject to bar disciplinary action, ethical complaints, and the like.
Because one of the canons that lawyers have is that you must represent your client zealously.
Anything that gets in the way of them, anything that impedes your ability to be 100% On the side of your client.
You know what's funny?
When people have asked me before, how can you represent somebody you know is guilty?
How can you do this?
And it's like I used to have one time, as a joke, cards made up that said defense limited to the defense of the innocent.
You know, there's no such thing.
You're charged with something.
What happens to people Is that once you get involved in it, you become so emotionally connected to this case that maybe you become surgically tunnel-visioned on the idea of fairness of this particular defendant, this kid being railroaded, and you forget the fact that there's this tragic case of murder.
This was the opposite.
Even with the glare of the camera and the light, even then, this Ineptitude.
I couldn't believe it.
I thought for sure any lawyer would say, I'd love to have this case for no other reason than my own marketing, my own desire to make a name for myself.
It was horrible.
I mean, absolutely horrible.
The big picture here, you know, I think it's really, really powerful for people to get a look at the actual workings of a trial.
And of course, it's been quite a long time since OJ. And so it is fascinating for people to see this.
Now, some of the things that trouble me as a whole, this is the big picture system.
And of course, since you've been in the system, you can, you know, your expertise will trump my outsider view.
But it seems to me That the American justice system has devolved of late into a bribe and threaten system.
Insofar as, you know, there are some studies that say 95, 96, 97% of cases never go to trial.
Now, either that's because the evidence is so overwhelming that there's no point, or it's because the state is saying, we'll cut you a deal.
We're going to bribe you with five or ten years of your own freedom.
You can't give five bucks to a cop, and rightly so, but the state can bribe you with five or ten or twenty years of your own freedom in order to secure a guilty.
Sorry, go ahead.
No, it's not bribing you.
Maybe sometimes it is.
But look, each case, understand the vast...
Majority, 90, I keep saying 90-100%, murders are really...
Of the murders, most of them are manslaughter, negligent homicide, drunken, no heat of passion, you know, second-degree murder, you come home, you find your wife in there, or a gun goes off, or reckless disregard, you know, something that's second-degree murder.
The idea of first-degree murder, malice of forethought, premeditated, I'm gonna kill you.
Those are very rare, thankfully.
That's a different story.
Most of the cases, I can say if I represent you, I'm going to say, assuming it's a non-murder, you have no prior record.
Most states have sentencing guidelines.
They have some type of way of looking at it.
I'm going to say, right now, you're looking at probation or a minimum of a year in the county jail or whatever it is.
I know this.
I'm telling you right now.
This is what you're going to get.
I'll shave some off.
The prosecutor, if you want to see The entire system grind to a halt.
Let everybody in the criminal justice system this week, from traffic tickets to you name it, plead not guilty and demand a trial.
It would stop.
Everything would stop.
Couldn't do it.
But that's the point.
The point is that there are so many laws.
So many laws.
There's a writer, Tom Woods, who has written a book basically saying we're all committing three felonies a day.
The common law thing, which was basically two rules.
Keep your promises, which is your contract law, and don't initiate force, which is your criminal law.
That was pretty easy.
Now there are so many.
I bought the wrong size grapefruit across state lines.
There's so many laws that the system, because there's so many laws, has to end up plea bargaining because there are too many laws.
I am with you.
Like you can't believe.
There are more laws.
There are people who want to have more drug laws!
El Chapo!
Even in the maundering, confused, breathtakingly incoherent explication and limbing of Mr.
Sean Penn, It was a kernel of truth trying to show how stupid drug laws are.
And that's another thing.
I don't understand that.
You're right about that.
We want to have rules for everything.
And we think that somehow putting people in prison, look, change the subject just a little bit.
You better understand something.
When you put somebody in prison, you better not let them out.
Because if they're in there for over a period of time, you have contaminated them.
You don't want them out.
So I'm with you on that one.
I don't understand why half of this stuff...
Do you understand what a crime is?
I know it sounds...
Sometimes when you go back and you ask the fundamentals, when I was in organic chemistry class, organic, you know, we were like in college, one day the professor says, what's an atom?
I said, oh, that's that.
What's a molecule?
So sometimes when you have to stop and say, what's a crime?
A crime is an offense which has as a theoretical punishment, incarceration, even though nobody's ever been incarcerated.
Watering your lawn during a water ban, tearing the tag off of a, you know, do not remove this tag, whatever.
If there's a misdemeanor, which is up to a year in the county jail, or a felony more than a year in prison, jail versus prison, misdemeanor versus felony, that is a crime.
Speeding is not a crime because you cannot possibly face incarceration.
The worst you have is a fine, you get your license taken away.
So, we love crimes!
And legislators go to their state capitals or to Congress and we're going to fast a law!
We're going to get tough on crime!
Then we do this.
Three strikes and you're out.
Sentencing guidelines, minimum mandatories.
Let's take the discretionary aspect from the judge who was sat there.
Look, let me ask you something.
If you're a judge and you're sentencing two people for retail theft, one guy steals a pack of cigarettes and another woman steals baby food and diapers.
You don't see a difference in those two crimes?
Yes, but the judge, the human element, is now being removed by these idiots who come up with minimum mandatories and throw into the mix this vector of the prison industrial complex, where prison is huge money.
And whenever somebody's charged with something, lawyers make money, judges make some money, the clerks, everybody.
And remember, when somebody goes into jail or prison, somebody's got to leave.
Which one do you want out?
And what people don't understand is that probation is an extremely effective means.
Recidivism is not as high as you think.
You've got to ask, we've got to look at ourselves and ask, look, murder is different.
In law, there's malum prohibitim and malum and say, classically.
Malum prohibitim is wrong because we say it's wrong.
Running a red light.
Malum and say, rape, murder.
Let me tell you something.
If you want to talk about horror, the worst thing I ever saw in my life, murders were, for the most part, they're tragic.
What happens to children?
What happens to children I can't even describe to you.
That's where our focus should be.
That's what we should be looking at, right?
A stopping child.
But this kind of stuff, the way, this law and order mentality that we have, the same way, kind of like neocons for war, we have neocons for prison.
So you're right about this.
And there's this expression I hate.
We need to have a conversation.
We need to have a conversation.
Some guy mumbling on the corner is having a conversation.
We need lucid interaction to explain what is it that we're trying to do and what we're trying to accomplish.
The system, by and large, is pretty good.
The jury, believe it or not, is really good more often than you think.
There was a move years ago to try to have professional juries.
They thought that when you have cases that involve really tough and technical things like 10B5 litigation and weird securities, you need a blue ribbon jury.
No.
It's up to the lawyer to explain the case at a level which a jury can understand.
So I'm really in favor of it.
But when you throw crap into the system, when we have people who were charged with drugs, Who really hurt no one?
When you have, and while I'm on the soapbox, let me throw something in too.
Brendan Dassey, to an extent, brings something up.
The way we treat the mentally ill in this country is barbaric.
It's medieval.
And that's a whole other story too.
There are people who are committing crimes who have To give you an idea, the standard, I don't want to get too into the woods here, but it's important that you know this.
The standard normally is called the McNaughton.
And the McNaughton rule means that do you have an appreciation of rightful wrong?
Do you know the difference between right and wrong?
And a lot of people will say, yes, I knew it was wrong to push this woman in front of the subway platform.
I knew it was wrong to do this, but the voices told me to do it.
That doesn't work.
So not only do we not understand basic human problems, we don't understand mental illness.
We don't understand a lot.
It's a mess.
And that to me would go...
No, go ahead.
No, finish your thought.
Nobody's advocating for these people.
Because we want to put these bastards in jail and prison for the rest of their lives, and I understand that.
And what happens right now is Stephen Avery's biggest problem, I guarantee you, if he looked like you...
And seemed like an intelligent man wearing a suit and just sat there and didn't look like some genetic experiment gone wrong.
I mean, let's face it.
If you took that entire jury room, everybody there, Their IQs collectively will still be less than the front row of a Willie Nelson concert.
I mean, it was scary!
Do you think this guy, anybody who looks at Steven Avery and says, poor guy, poor guy, this isn't fair.
No!
And when it comes to knowing the difference between right and wrong, the very fact that Brendan Dassey thought he was going to go home tomorrow after confessing to murder means that he had no clue about the gravity, the seriousness.
He may, okay, it's wrong.
I'll cop to it.
I stole the pencil, you know, but I can, can I go home kind of thing.
That, to me, would be indicative.
I also don't like the degree to which it seems like, and tell me, of course, what you think, it seems like states have a sort of unending arsenal of charges to apply against people, which seems to kind of violate this sort of double jeopardy principle.
Like, there's 16 different ways they can say you hit someone, and it's like they keep piling them on, and it's like, well, all they have to do is get you on one, and so then it's just better to cop a plea, which means that you're not really getting your chance.
As long as each offense involves an element that the other one does not have, it's a different offense.
I like lesser included.
Well, you didn't get him on murder one.
How about murder two?
How about manslaughter?
Didn't get you on burglary.
How about trespass?
Well, wait a minute.
How about all or nothing at all?
You're going to go for lesser included.
And then we get into this one.
State court, federal court.
They do that all the time.
Different tribunal.
Same charges, but phrased differently.
One is a state sanction with state prison.
The other one is a federal sanction.
Most drug laws have state sanctions and federal.
You have to ask yourself, is it, you know, despite all that we're saying, crime is not as bad as people think.
Crime is Less horrible than people think.
If you watch the news in this country, you think that everybody's shooting everybody else.
Gun violence has dropped precipitously.
You know, things are not as bad, but that doesn't help people in the business of law enforcement.
Well, yeah, crime is declining, and I think this is another reason why the government seems so intent on inventing new crimes, because it's a machinery that needs to be fed by criminals.
That's the input, and the output is money to special interest groups.
Now, the one thing I just wanted to touch on to close things off, and a great, great chat, I appreciate your time enormously.
When I was a kid, oh Lord, I love being able to talk about this stuff.
Ah, back in the day when you had to go inside a bank.
But when I was a kid, there was something strongly reinforced whenever there was sort of a public trial.
And this was the innocent until proven guilty.
And the media, I don't mean to romanticize it in the past, I haven't double-checked, but it seemed to me the word alleged wasn't just thrown in there for legal reasons.
But there was really a strong commitment to innocent until proven guilty.
And when I think about Darren Wilson's trial in particular, right, the Mike Brown disaster that occurred recently, I mean, this guy, I mean, he was found innocent of the charges.
He was not tried.
He was found innocent.
And even Eric Holder couldn't find anything on the guy, even for civil rights violations and so on.
His life is destroyed anyway.
I mean, the guy's got no future.
Same thing with George Zimmerman, with the Trayvon Martin situation.
He was acquitted, and his life is destroyed.
And it seems like this grit your teeth, no matter how bad it looks, focus on innocent until proven truth.
Guilty seems to have slipped a few notches on the rung of our standards to the point where it almost in a sense doesn't matter what happens in the trial because if you're at all exposed to the media it seems you're going to get the lynch mob through the media no matter what and it doesn't matter what happens afterwards.
If your case is worthy of such we have I'm glad you brought up this fact.
You know, when I was a kid, I'm saying that a lot myself, and I don't really hearken back.
By the way, is this sun bothering you?
No, it's good.
Is that at all affecting the look?
No, it's fine.
Because it's our Lord's Word.
He speaks to me through the glory of salvation.
Praise God.
I feel compelled to agree with you and pray to you.
But there was a guy years ago on...
Ed Sullivan.
I use this expression in the poem where he's getting bored.
And he had this stick and he had these plates.
This one over here.
I'm having my wife.
This is odd.
Anyway, he would have this plate, this stick, and he'd spin these plates.
And he had multiple plates going.
And as a kid I would say, oh my god, he's going to drop the plate.
Like what is it, made of Semtex or something.
Anyway, there are issues here that are multiple.
We have the First Amendment, freedom of the press, to know what is going on.
Again, Sixth Amendment, a speedy and a public trial.
We want, you know, Brendan Dassey, believe it or not, is going to be helped because of us, because of seeing that.
Okay?
That's good.
We put that plate there.
Then you have the idea of somebody who is now forever ruined by this.
George Zimmerman was the worst case ever, but believe it or not, so help me God.
I knew he was not guilty.
I predicted this.
The day they picked the jury, I'm saying under the law, because of stand your ground, I know how this thing works.
I'm not saying he's a nice guy.
I'm not saying that, but I know this is going to happen.
I knew the very first day that Casey Anthony, remember that one?
They found a skull with no ability to say whether there was even a homicide.
There's four kinds of death is the acronym NASH. Natural, accidental, suicide, homicide.
It was a skull.
I don't know if it was natural.
That's a not guilty.
Okay.
She's through.
She's finished.
She's ruined.
Good or bad, right or wrong.
So that's a balance of the First Amendment and the freedom of the press.
Our right to know.
And then you have this unscrupulous sock puppet media, these echo chamber, vapid, vacuous, impuisent, atesticular, invertebrate, you know, lemmings, these repeaters and not reporters who only want, you know, the, you know, and Nancy Grace, bless her heart, but you don't want her Because everybody is guilty in her mind.
And how do you tell somebody?
It's not whether you're guilty, it's can you prove it?
See, in a weird way, I think there's going to be a balance.
I think people are going to say, oh, I understand this kind of sort of better.
And whenever you're talking about murder, it's always a horrible case.
And there's these things, there's this incredible balance that we have in our system.
There's something called 403 evidence, the federal rules of evidence, which means that Sometimes something can have probative or provable, proving value, but it's so inflammatory.
It's so horrible.
It outweighs any probative value.
Sometimes there are cases that are so awful with despicable defendants, horrible people who have records.
I'm not saying in this particular case, but imagine the guy who's, he's done this before.
And you know he did it.
And you know this son of a bitch did it!
And you figure, you know what, who cares?
Maybe he didn't do this one.
But he did it.
The other ones.
And you have that.
You have that because you allowed the world to see what was going on.
You allowed the press in as you promised.
And you've contaminated it with truth!
And there's no way to sit there and say, okay, now let's be rational, hold it, hold it, wait a minute.
So, you're right.
This is a necessary evil to them.
I can't explain it.
I can't understand, you know, and it goes back to, should we have cameras in the courtroom?
Yes.
Absolutely.
Federal courts still know.
Supreme Court know that we have audio recording.
So, all in all, it's a system that You know, it's fraught with problems.
It also goes down to this.
Let's go back into something you're not going to know about.
Let's talk about a black person, poor person, in bug tussle, Arkansas, Georgia.
I always point to that.
I'm from the South myself.
I'm from Florida.
Not Florida.
Florida.
And I've seen some courtrooms that may inherit the win look like, you know, the Southern District of New York.
And you get somebody who's poor, It was a terrible case.
And the judge says, now let's see here.
You need a lawyer?
Benny, would you like this one?
I know you don't do criminal law, but here, we'll give you a few bucks.
Represent this young man on murder one.
Oh, by the way, I'm going to give you $2,500 maximum by statute and for investigative fees, house 250.
And you're going against The state, who by the way has all the time in the world, and the FBI. Isn't that interesting?
The FBI? Why is the FBI involved in this?
Anyway, I've got access to forensics, for witnesses, for investigators, plus time.
I get to pick when my case is ready.
I'm ready now.
Let's lower the boom.
You don't have a say.
Your procedural protections are speedy trial and that sort of thing.
It's by its very nature unfair.
There was a study done in New Orleans that the average lawyer for the defendant has about seven minutes worth of time to spend.
Of course, that's a wide variety of cases, not all murder one and no one.
It can work.
I mean, when the system is engaged, like the rules of evidence and the trial by jury, these all developed out of non-state environments.
These all developed out of common law, which, you know, was efficient and had restrictions and has a certain amount of fairness.
I think as the government has taken over more and more of this stuff, and of course it is impervious to reform from outside.
There are no market forces.
There's no competition where people say, well, I want to choose this system rather than that system.
Right.
So it's impervious.
Everyone's making money from the inside.
It's like when you see the mess that goes on in family courts and how ridiculous and complicated it is, particularly compared to what goes on in European countries where it's just split and whatever, right?
It's impervious to reform.
And that, I think, is the real challenge.
It's just another one of these government programs that multiplies in profit while subtracting from any kind of efficiency, which is one thing when it's the post office.
But it's another thing when we're dealing with literally matters of central ethics and life and death, such as the court system does.
Well, and also there are people who believe the opposite.
You tend to be focusing on people who are the victims of a cold and indifferent system.
There are other people who are saying it's not efficient enough.
They have this idea that people are getting away with murder, that they're walking, that defendants are walking, that, you know, I don't see that at all.
That's, you know, depends upon your perspective.
But what I only want people to understand is the goal should be that everybody theoretically gets to have their case looked at by virtue of, I like instrument rated, this kind of a notion of like the instrument rated pilot, the guy who says, I don't really know where I'm going.
I'm just looking at these numbers here.
And I don't know if this defendant here is black or white or rich or poor.
I'm just looking at this evidence and I'm saying, yep, that's not guilty.
That's not, you haven't met your burden.
And then we get into these.
We have criminal law, which is beyond a reasonable doubt.
You have the civil burden, which is the preponderance of the evidence.
51%.
Is it more likely than not?
Then you have other burdens.
Prima facie.
Proof evident, presumption great.
Clear and convincing.
What do these mean?
I don't know.
Probable cause.
In the best interests of the child.
Who knows what that means?
Can't objectively define it.
The best one I ever heard was, he probably did it.
And, you know, we go to the arraignment, and I had a client of mine who called it the arrangement.
I thought, you know, in a weird way, civil is another story.
And family, divorce, dissolution of marriage, tender years doctrine...
Presumption that the parent, the mother always gets the kid based upon kind of our system.
And by the way, to all of those, my brothers and sisters who fought for same-sex marriage, as I did as well, because I think, whatever, you're now going to meet this tribunal that's going to basically be looking at the same thing.
Let me also throw some interesting factors into this.
Watch very carefully the Bill Cosby case.
And there's something very interesting.
Watch the Camille Cosby, his wife, be asked in order to testify.
Because a lot of people have this idea that a spouse cannot be ordered to testify against the other.
Let me teach you this one bit of advice.
The answer to every legal question, every single question, no matter what it is, is it depends.
It depends.
That's what I was saying.
Yeah, it depends.
So that's a fascinating clip.
Miss Cosby, Mrs.
Cosby, are you his wife?
Yes.
We want you to testify.
I don't want to testify.
Well, it's a deposition and not a criminal trial.
Oh.
And I don't want you to testify as his wife.
I want you to testify as his business partner.
What?
And I don't want you to testify as to what he told you.
I want you to testify as to what you saw.
You know, evidence is my favorite.
Remember the old speakeasy movies where there's a knock at the door.
The guy pulls the people and he says, who is it?
He goes, Larry sent me.
Knock at the door.
Same guy.
Murray sent me.
Knock at the door.
Same guy.
Eddie sent me.
You're in.
That's evidence.
Whenever you hear this, form of the question, objection, that means I don't know what to say.
I don't know what to say.
Form of the question.
Form of the question.
What does that mean?
I don't know.
I have no idea.
Hearsay.
Relevance.
It's fascinating.
And when you...
What I couldn't believe is I... As a trial lawyer, I couldn't believe how much was not objected to during that trial.
I would have been an objecting machine.
Because when you don't object, you lose the chance to bring that objection up on appeal.
You object to preserve the issue, not just to be a jerk.
I mean, I couldn't believe what was going on.
And also, did you notice how, going back to the making of a murderer, how great the media were?
Their questions were fantastic.
They were, I mean, great!
So I hope the people who were contaminated by watching this got to hear that other additional bit of contamination on the part of the media who are asking so many great questions.
It's wonderful!
Right.
Well, so I do certainly want to recommend that people watch the series.
I think Netflix has a month trial, so you don't have to pay if you want to give it a shot.
And it is really, I think it's important to know.
You know, most of us don't have anything to do with the legal system.
And those who do get caught up in this machinery and are too busy to try and change it.
And if they get spit out at some point, they just never want to look back, right?
So I think it is a really tough system to try and to improve it.
Certainly, like all systems could stand improvement, particularly government systems.
But I think it does give people a window and can stoke some outrage at how certain things happen and the lack of consequences.
This is not a system where there are a lot of consequences for malfeasance, in my opinion.
So I really, really appreciate your time.
We're going to put people's link to your channel where you are constantly talking about a wide variety of issues in, again, a very entertaining and concise and informative way.
