Fair?

Yes, but also fair is that from a criminal defense perspective, uh, all the additional facts that could come out now aren't going to change the original facts which are part of the case, which the DA summed up several days ago, uh, by saying her statements dramatically, and I believe I'm quoting him verbatim, dramatically differ.

That is a huge problem for a criminal investigation.

So if, for example, she...

it now emerges that she said, "I'm 100% certain that I was raped," that doesn't change the underlying problem with the prosecution, is that there were dramatically inconsistent statements.

And I just want to say one other thing, and this...

Listen, take what I say with a grain of salt, folks, because I am biased in the sense that I've defended some of these cases, uh, on universities, and the idea of, of Cor- a Cornell coverup seems very, very, uh, incorrect to me.

What do you expect will happen?

Do you want to talk me out of that conclusion?

No, and this is another moment where, as I was preparing, I thought, boy, this is an appearance that might get me in a lot of trouble, maybe with the listeners, maybe even with Michael.

And I have to say, in just the last few seconds, I realized that not only am I not going to talk you out of your position, I completely agree with you.

And I'll put it this way, and I've said this about a few different prosecutions over the years.

I don't know how or why, but this will not result in a conviction, not one.

And the reason I say that is that there are so many off ramps.

I can't tell you which one this case will take, but it will take one.

Have you?

Mm.

Due process requires that if you take away some right, then you need notice and an opportunity to be heard.

A very interesting issue is, is it proper notice and the opportunity to be heard if it's after you have that right taken away? In other words, can they revoke the pass and then say, "Okay, now you can submit your written explanation or argue it with us after we've already taken away your pass"? That is a really interesting issue that will be developed.

But one of the things that's hurting Trump the most is anything that appears to be them conjuring up some justification after the fact.

Because there really can be little doubt that when this decision was made, it was made summarily with virtually no advance planning.

It is almost the definition of due process violation if you consider that the right was taken away and there was really no meaningful opportunity to even be heard.

Only a free and unrestrained press can effectively expose deception in government." Are there, in fact, parallels in these cases?

There are, and fortunately for the plaintiffs, there are even more recent parallels, and so recent that some of the existing case law was actually decided or before this same judge.

What is the standard of proof in a courtroom when we're talking about this?

This is so fascinating, because when you think of all the advancements we've made in the world of mental health, many courts still use the test that was developed in the 19th century called the M'Naghten test.

We all learned it in law school, and it came about in 1843 when an Englishman, Daniel M'Naghten, shot and killed the prime minister's secretary, believing that the prime minister was conspiring against him.

Of course, the prime minister was not.

He was acquitted by reason of insanity, and that gave us the M'Naghten test.

Basically, a defendant has to prove one of two things, either that as a result of that mental illness or defect, the defendant either didn't know what she was doing Or that she didn't know what was right and wrong.

And by the way, the important thing to know about right and wrong is it's not your own subjective awareness of right and wrong, it's whether you're aware that society deems what you're doing to be wrong.

So how does the, the burden of proof work when it comes to insanity? It, this is gonna sound silly, but is a person sane until proven insane?

What is the standard of proof in a courtroom when we're talking about this?

This is so fascinating because when you think of all the advancements we've made in the world of mental health, many courts still use the test that was developed in the 19th century called the Monotone Test.

We all learned it in law school.

And it came about in 1843 when an Englishman, Daniel McNaughton, shot and killed the prime minister's secretary, believing that the prime minister was conspiring against him.

Of course, the prime minister was not.

He was acquitted by reason of insanity.

And that gave us the McNaughton test.

So how does the burden of proof work when it comes to insanity? This is going to sound silly, but is a person sane until proven insane?

Do you think we will see a difference now that they've had this focus group, if you

There will be no difference in charging.

I believe I believe they will retry her.

I believe they will keep all the counts.

And I believe that in order to retry her, if they change their theory now, I think that would be very damaging to them.

think they will retry her, is that this is an unusual case in that no matter what happens, even if she's not guilty by reason of insanity, she will be placed in a secure facility.

So in a way, the prosecution can't lose.

The question is not finding jurors who have never heard of a case, right? That's not the bar.

Tell us what happened and what that means for the state murder charges.

Yeah, it's so dramatic, Scott.

I mean, what a surprise.

But here's the thing.

A defendant can always plead guilty at any time.

It's whether or not he gets a deal with the prosecutors and whether a judge accepts a deal.

That gives prosecutors and judges some control.

so at no point by the way because of the way this has all come down he he is out of the woods on the death penalty is that right

Tell us what happened and then what that means for the state murder charges.

Yeah, it's so dramatic, Scott.

I mean, what a surprise.

But here's the thing.

A defendant can always plead guilty at any time.

It's whether or not he gets a deal with the prosecutors and whether a judge accepts a deal.

That is...

Mm-hmm.

Young Thug or Jeffrey Williams ultimately pleaded no contest to that RICO charge.

Yes, that was a case where the prosecution sought to introduce evidence of l- rap lyrics to show guilt in the, uh, sort of the association with people and the conspiracy and all of these other elements.

As a defense attorney, obviously I'm biased, but I see a real problem with introducing artists' work as evidence against them.

Imagine you're an artist and you create something, and then years later it just happens that a crime occurs that is close to those lyrics.

If the prosecution can show a connection between the lyrics and the crime itself, then it may come in, but how do we know what is a nexus between violent lyrics and a crime of violence? And I would just add as an asterisk that you see a lot of rap lyrics, but I can show you, uh, several songs in rock and some of the other genres that talk openly about crime.

There's I Shot the Sheriff.

He has pleaded not guilty to these charges, but there is a lot of online conversation about whether some of his music could possibly play a role in the criminal proceedings.

One of David's songs, uh, was a track titled Romantic Homicide.

Young Thug, or Jeffrey Williams, ultimately pleaded no contest to that RICO charge.

Yes, that was a case where the prosecution sought to introduce evidence of rap lyrics to show guilt in the, uh, sort of the association with people and the conspiracy and all of these other elements.

As a defense attorney, obviously I'm biased, but I see a real problem with introducing artists' work as evidence against them.

Imagine you're an artist and you create something, and then years later it just happens that a crime occurs that is close to those lyrics.

If the prosecution can show a connection between the lyrics and the crime itself, then it may come in.

But how do we know what is a nexus between violent lyrics and a crime of violence? And I would just add as an asterisks that you see a lot of rap lyrics, but I can show you, uh, several songs in rock and some of the other genres that talk openly about crime.

There's I Shot the Sheriff.

He has pleaded not guilty to these charges, but there is a lot of online conversation about whether some of his music could possibly play a role in the criminal proceedings.

Mm

...

if they vote to hold him in contempt, then that gets referred to the DOJ, specifically to the US attorney for the District of Columbia, and that is someone who might be inclined to prosecute.

But ultimately, it is a judge that decides whether the law was broken.

And the theory would essentially be that there is no privilege if a pardon, if there was some immunity that prevented him from having any criminal exposure.

So that's the gray area.

Was there truly any criminal exposure in that invocation of the Fifth? If there's no chance of any criminal exposure, then arguably the Fifth is not appropriate.

And Danny, uh, if you were Anthony Fauci's attorney, would you have advised him to plead the Fifth today?

What are the circumstances under which you get the sort of legal do-over?

Yes, Sam, you've covered so many of these cases.

This is part of the standard colloquy that a judge asks a defendant about.

Is this your guilty plea? Are you making this of your own free will? Has anyone coerced or threatened you to do this today? Are you satisfied with your attorney's representation? Those are all questions designed to ensure finality.

Finality is what is good for victims and for society as a whole.

All of those questions and answers given under oath by the defendant make it very, very difficult to withdraw a guilty plea this long after a year after not only the plea, but sentencing itself.

In fact, it gets much harder after sentencing to try to withdraw a guilty plea.

How do you go about proving essentially negligence by the defense attorney and convincing a judge of that?

The High Court d- saying, "Yes, they are." Uh, what else strikes you so far about the decision as you understand it?

Even though, Craig, this is a six-three decision on Title IX, it really isn't.

It's much more lopsided.

The justices were effectively eight and one on Title IX deciding that Title IX allowed for states to discri- well, to make these decisions based on biological sex.

And the court looked at the history and concluded that, uh, Title IX lets schools keep girls' sports for biological girls.

And when Congress wrote "sex," and I'm putting that in quotes, in 1972, Congress meant biological sex.

The Court today said that that meaning has not since changed, since 1972.

And so practical implications of that, uh, Danny, moving forward, or is, is it too early to tell?

What would Mangione's defense team have to prove to be able to prove this?

So under the jury instructions, essentially he'd have to prove three things.

First, he must actually be extremely emotionally disturbed.

It's gotta be so extreme that it resulted in a loss of self-control.

The second is that there has to be an explanation for this extreme emotional disturbance that is reasonable.

And then, third, the defendant has to show that he was under the influence of that extreme emotional disturbance when he committed the homicide.

Not now, not during his perp walk, not in his writings, in any manifesto, but at the time of the killing.

So what is next for Luigi Mangione's defense? Do we have any idea?

What happened?

Originally, I suspected that it was possible that Mangione himself was changing his mind or engaging in, in last-minute decisions.

Since then, I now think it's possible that when they came into court, that they may have filed this notice to hedge their bets, which is something you do as a defendant.

You wanna keep every option open.

And then when the court said, "Well, going forward, we're gonna have to release all this information," I think what happened was the defense thought it's not worth it, because the benefit of this extreme emotional disturbance defense, it's really only a reduction in punishment.

It's not really a defense.

So what is next for Luigi Mangione's defense? Do we have any idea?

Their defense at this point is the same as any other defense.

In your expert opinion, what happened here?

I'm gonna put on my speculation hat, but Tom, here's what I think happened.

It's one of two things.

They had a deadline, the defense, to get in certain documents and information.

They may have been waiting on an expert witness that they thought might be able to give them the testimony they wanted, and maybe that just didn't come through at the 11th hour.

But far more likely, whenever you see an inexplicable 180-degree turn, that is usually the client.

And I wouldn't be surprised if Mangione had all of this explained to him, how this defense works, this affirmative defense of extreme emotional disturbance, had a night to think about it, and realized, at least for him, even though I think this is a very good option for the defense, he might be thinking, "Well, wait a minute.

Okay.

Hmm

... that was probably the best choice for the defense, and here's why.

Uh, because in Texas, the prosecution has to disprove self-defense beyond a reasonable doubt.

They have the burden.

For that reason, if you have a 17-year-old client who obviously has no experience, uh, testifying in his own murder trial, going up against an experienced prosecutor where the rules of evidence are skewed in favor of the questioner, not the witness, then there's just too much of a risk to put Anthony on the stand.

Maybe he could have articulated some self-defense, but it just wouldn't have been consistent with so many of the other witnesses' testimony, and that would have looked terrible on cross-examination.

He could have just denied what all these other witnesses said, uh, but it might have made him look even less credible.

Number one, why wasn't the death penalty, uh, on, uh, tap here for Carmelo Anthony? And number two, tell us about this issue of sudden passion, uh, that was considered during the jury deliberation.

Number one, why wasn't the death penalty, uh, on, uh, tap here for Carmelo Anthony? And number two, tell us about this issue of sudden passion, uh, that was considered during the jury deliberation.

So first, he was not ever going to get the death penalty because he was a minor when the crime was committed.

The Supreme Court has said you can't send minors, you can't convict them and, uh, execute them, uh, if they were minors at the time of the commission of the crime.

So the only thing ever on the table was a sentence in the range of five to 99 years for first-degree felony.

It's what Texas calls, uh, their murder statute.

So that's what was on the table, five to 99 years.

And I believe technically they could have made it life as well.

Hmm

But have the defense attorneys been skillful, in your, uh, opinion?

Yeah, Scott, I know you totally get this, but I mean, as a defense attorney, you know, I, I've been asked this a lot on air.

Was it a good job? I mean, here's the thing.

As a defense attorney, we don't get to pick our facts.

The prosecutors get to pick the facts they wanna bring to trial.

Sometimes you have a case that's just what we call, or at least we used to call, the dead bang loser.

Sometimes you have a case that the facts are awful, but the client wants to go to trial, so you do the best you can.

But in this particular case, is it your view that the jurors would've had their minds made up prior to closing, or do you think anything was said in the closing arguments that might've changed a mind in there?

... defense attorneys been skillful in your, uh, opinion?

Yeah, Scott, I know you totally get this, but I mean, as a defense attorney, you know, I, I've been asked this a lot on air.

Was it a good job? I mean, here's the thing.

As a defense attorney, we don't get to pick our facts.

The prosecutors get to pick the facts they wanna bring to trial.

Sometimes you have a case that's just what we call, or at least we used to call, the dead bang loser.

Sometimes you have a case that the facts are awful, but the client wants to go to trial, so you do the best you can, and that's what this feels like to me.

But in this particular case, is it your view that the jurors would have had their minds made up prior to closing, or do you think anything was said in the closing arguments that might have changed a mind in there?

I mean, because at the end of the day, that's typically what it comes down to, right? How is it decided what dollar amount? For instance, Karen Read's civil suit, the family's asking for thousands, while OJ Simpson's suit, uh, the family's asked for millions of dollars there.

there.Yeah, the world of figuring out damages is a process that is begun by juries at trial, and they're laypersons, they're not economists, and so you get some wild disparities in dollar amounts awarded.

Damages are tied closely to the companionship and the support the deceased person would've provided.

Unfortunately, this may not seem fair, but higher earners are going to warrant higher damages in wrongful death lawsuits.

And of course, now Blaine, we're talking about trying to prove to a jury what somebody would've provided had they survived, when in reality you don't know, that person could've lost their job the next day, or somehow been unable to provide for their family.

So there is a bit of legal fiction that goes on, but ultimately you're going to put a dollar amount on that companionship, as well as medical, funeral expenses, and there's always the potential for punitive damages if you have intentional or reckless conduct.

What happens if the defendant is found liable but doesn't have the money to pay?

Well, that is a huge problem, and that's why most of the time, a- as a personal injury or plaintiff's attorney, you're looking for insurance policies.

I mean, because at the end of the day, that's typically what it comes down to, right? How is it decided what dollar amount? For instance, Karen Read's civil suit, the family's asking for thousands, while OJ Simpson's suit, uh, the family's asked for millions of dollars there.

Yeah, the world of figuring out damages is a process that is begun by juries at trial, and they're laypersons.

They're not economists.

And so you get some wild disparities in dollar amounts awarded.

Damages are tied closely to the companionship and the support the deceased person would have provided.

Unfortunately, this may not seem fair, but higher earners are going to warrant higher damages in wrongful death lawsuits.

When, of course, now, Blaine, we're talking about trying to prove to a jury what somebody would have provided had they survived, when in reality, you don't know, that person could have lost their job the next day, or somehow been unable to provide for their family.

What happens if the defendant is found liable but doesn't have the money to pay?

I'm just struck by this idea of how it's even possible that the government simply didn't know it had all of these documents until this week.

Well, on one hand, you're absolutely right.

I mean, the government should, at minimum, even if they didn't comply with the statute that required them to release by a certain date, and... as opposed to a rolling release and, "We'll release them when we're ready." But on the other hand, this is...

and I'm thinking about this from the perspective of a criminal defense attorney handling a federal criminal case.

One set of files nowadays in the modern criminal case can be terabytes of documents.

This presumably is everything DOJ has ever gotten its hands on related to Epstein, which spans several different cases.

And don't forget, things like emails that are not normally part of criminal discovery, but internal DOJ emails.

And they're not just objects, they're, they're beings.

Have you ever heard of a juror doing that before? And what makes that a problem?

I haven't heard of a juror doing that specifically, but in the context of this motion, understand this is after a conviction, and you're trying anything you can.

You're throwing anything against the wall.

And while this is an interesting theory, that a juror somehow using some technology to look more closely, and that's what they did, they used it to compare images of the defendant and the suspect side-by-side.

And the defense is basically arguing, well, that went to the level of manipulating the evidence.

The question is, is the juror just looking at the evidence from a different angle and in a different way? Or are they manipulating it? And of course, the other major question is always, are they going outside the evidence?

I would want to do all these things.

It's tempting.

I- is that an argument that could hold up in a court of law?

Eh, that's more of a political argument than it is an actual legal argument, because you need something else in order to remove someone or institute removal proceedings.

And those are all spelled out, uh, in detail in federal statutes.

So for example, it may be someone that the Trump administration considers to be not compatible with Western civilization, but they're gonna need something like a false statement on their application or a, uh, a, an arrest or c- excuse me, a conviction of a crime that qualifies for removal proceedings.

So, it's not a matter of just the chief executive being able to say, "I'm getting rid of anybody who I don't think is compatible with Western civilization." Uh, that is simply not a legal statement.

On the other hand, it, what, what was key to me was the word that he would direct people to review, review existing cases.

In other words, go over files with a fine tooth comb, and then you might be able to find some false statements that were made on some of these applications that would give you the grounds likely to institute removal proceedings.

Could the tragic shooting impact the facts and legality surrounding the questions about whether or not it's even legal for these troops to be in Washington?