Yeah.

Yeah.Normally they got what's called a three-year denial, which is the minimum denial.

You know, come back, uh, behave yourself.

This is what you should do if you wanna be, uh, released.

You gotta adhere to these kinds of recommendations and you gotta do some programming.

If you are, uh, uh, clean, so to speak, and you do everything you're supposed to do, they have the authority to basically halve that, and that's what they did.

So roughly 18 months out of the 36.

Is it realistic that Hochman is gonna go for the death penalty?

If you had asked Dr. Filbiss, I'll repeat the question to you, if you had been on that jury, would you have convicted Lindsay Clancy of murder or

not? Certainly not a first-degree murder.

I think that the biggest problem and the reason these prosecutors seemed so tone-deaf to everybody, including myself who watched them, is it was severely overcharged.

This was not a first-degree murder case.

I think they did that tactically because under a quirk of Massachusetts law, apparently you cannot waive jury, meaning it could not be a bench trial if it's first degree murder, which is not the case in other jurisdictions.

So if that's the case, they were trying so hard to keep this as a jury trial because they also were turned to the fact that jurors were not going to hate this woman.

I know that this is hard for people to understand, but if you go back five or six weeks ago, people did nothing but talk about how much animus the jury was going to have for her.

So what would the deal look like in the most likely scenario of a deal? What is that deal?

Mm.

That's on the record, and instead of the judge...

This is one of the angriest I've ever gotten with a Superior Court judge.

Instead of s- bringing in the juror who f- was threatening the foreperson, who was both a doctor and a lawyer, which is why I wanted the guy, I wanted somebody who was both analytical and smart, I wanted smart people, and instead of doing that, the judge removed the, the foreperson, removed him from the deliberations after seven days.

There was a verdict within eight hours.

Though he's not Scott Peterson's appellate lawyer, Mark Geragos fully supports a new trial.

There's just too much here, and the idea at this point that there was such willful kind of suppression of evidence, I always say the same thing.

If you're b- beyond what you referenced as the prosecutorial duty, if you truly believed in your conviction as a prosecutor, which also is your duty, you have to have an abiding conviction of that which mirrors the jury.

... to this news

...

It's very interesting because I wondered why they ...

He didn't do this.

They have this quirk in Massachusetts, I personally as a defense lawyer love it, where you can press pause, basically call a timeout, and go to the appellate court, and, uh, one justice can weigh in.

And I th-...

The reason I love it is you don't have to wait for a full scale appeal, so to speak, or do a, uh, it's essentially an interlocutory, meaning a writ action.

[laughs] I was very fair to you though, very fair to you.

And I do wonder, as you talk about you get a sense sitting across from somebody, do you think you'd know if you were across from a sociopath?

I, uh, see, I, I think, I don't know that this is something I want on my tombstone, I don't think anybody has handled as many murder cases as I have, and that, a- and if I were to tack on...

I mean, you know, I, my first 13 years of my life, my father was a homicide prosecutor in the LA DA's office.

That's all I watched.

I used to follow him around the court and watch him do murder cases.

I watched him, while waiting for bar results, he had three murder cases pending, and I watched all three trials while waiting for them back to back to back.

I've handled I can't tell you how many murder cases.

Oh.

She seemed to be trying a whole lot.

And, and I think that Reddington, who you just showed the soundbite of, who's the defense lawyer, has gotten a raw deal.

And many of my colleagues, almost all of my colleagues, have told me that they thought his closing was lackluster or it wasn't effective.

And it just goes to show, I think, that, that you really, unless you're a really deep, deep dive in a, uh, in a trial, you don't understand what a closing really does.

You would know, because you've tried so many cases, that the case is usually decided or the, kind of the, the, the print is printed, if you will, after you pick a jury.

And then all you're doing at a closing is basically giving whoever you want the arguments.

And I think what he tapped into in his closing was precisely what you showed, that it was the system that failed her, that the mental health system wasn't equipped.

You're the lawyer who's just sitting there, you know, twirling in the wind.

Is this something that in the back of Kevin Reddington's mind, he might see as an advantage?

I will guarantee you, I don't know if you would admit it, but once you got past a full day of deliberations and Friday at 3.30 p.m., last Friday, your odds that it is a hung jury go up dramatically.

For whatever reason, anecdotally at least, in my experience over 40 years, if the jury stays out past Friday afternoon and they've had a substantial amount of time to deliberate, that means they're fighting.

And I will tell you, some of the reporting by Lauren Conlon about jurors being dressed up or wearing pink or things of that nature... lead me to believe that there is a split, and my guess is that the split is not so even.

If you want to read the tea leaves, my guess is there's at least a 9 to 3.

I'm not going to say which way and on which count, but clearly there's a split.

But yet it's important for him to get the narrative right.

Well, look, I can't say that I don't feel his pain.

If the jury ends up hung and there is a second trial, what do you think the defense would do differently?

Well, I think they would re-raise.

One of the reasons, and people forget about this, and I think Mr. Reddington has reminded them, but it may be lost on people.

He did a motion to bifurcate the guilt from the sanity phase, so to speak.

That was denied.

So he had to navigate this idea of balancing beyond a reasonable doubt versus the sanity.

I think he would renew that motion arguably And if that were to win, and I think he's got an argument, depending on how the split is, if it's hung, and mind you, even though I predicted that if it went past 3.30 on Friday, last Friday, the odds on a hang would go up, they do have this kind of an Allen or dynamite charge.

Do you think, Mark, we could see something like that with Lindsey Clancy?

What do you think the defense has to do to, to close things here, and what do you make of this, uh, mistrial attempt today, and the timing of when it came, when the psychologist seemed to be locked in with the jury talking about this theory that she may have wanted to commit suicide and kill the kids because she didn't wanna die without them?

Well, the psychiatrist who, and I agree at least both you and two other observers in the courtroom told me that the jury appeared to be locked in with him, well, whatever locking in with him was completely undercut by his gratuitous and obviously intentional invocation of the Catholic dogma, Catholic religion, and he provoked that judge.

I have, uh, it's gotta be one of the top 40 angry judges in front of a jury excoriation that I've seen, and, uh, I think this guy did it purposefully.

I think he was trying to appeal to the, uh, to the jurors', uh, uh, emotions, if you will, uh, the witness.

And I, I will tell you what I have believed since the first time this happened.

I said there is a Supreme Court case, it's rarely utilized or actually applied, Oregon v. Kennedy, and it's when the prosecution is goading, G-O-A-D, the defense to make a mistrial motion.

I think they did it before, and I think they did it this time, and I think clearly at this point Reddington decided, hey, if this guy's getting any kind of traction and I've gotta protect my record, I have to make the mistrial motion.

So why, Mark, what, you're saying the prosecution wanted a mistrial? Is that what you're saying?

I wonder if that could be problematic for the defense.

I don't really think so.

I think your point really was my takeaway today.

It sure seems like the prosecution narrative, given the opening, is that this guy admitted to it, so therefore convicted.

The problem was they then put on a series of witnesses, and it doesn't jibe with basically anything he said.

So in the book, so it's, who are you going to believe me in a book that I'm trying to sell or the witnesses that I'm calling here? And then the argument is, well, of course it was 30 years because this guy is just one of these wannabes and he's not, he might be a lot of things, but he's certainly not guilty of this crime.

Does the prosecution

Do they need to place Keith E.D. at the scene in some way?

do you think they're considering the death penalty in this case

I've always thought that what they are doing here is a lot of posturing.

And I say this tactically for a prosecutor.

In virtually every jurisdiction but LA County, the death penalty allows you to weed out people who are opposed to it.

All of the sociological, anecdotal, and anthropological evidence points to the fact that people who are pro-death penalty are also pro-prosecution.

So it's a wonderful way for a prosecutor to skew the jury poll.

I might've mentioned to you before, and I'll reiterate it for those who didn't hear, One of the reasons Scott Peterson's death penalty was unanimously reversed was because during jury selection, I kept objecting and the judge kept weeding out anybody who was against the death penalty.

What is

They just didn't release it publicly.

Correct.

And that's ...

And there's nobody in court who's going to be blaming him.

It's only people who didn't listen to what you read, 'cause even when you read it, it was compelling.

It made me nauseous just listening to that, to imagine what he must have gone through, having to discover his wife, who he was married to, loved, and who was his baby mama, and who is there w- in the throes of mental illness.

The people who don't understand this, the people who are out there who are ...

[laughs]

What do you anticipate from the prosecution?

Well, so far, they have statements from people who weren't there who say that people who were there but have passed away told them corroborating evidence, that they said that he secured the gun, that he handed the gun to somebody in the car who actually did the shooting, that he was in the car, that there were conversations about it that he was a part of.

And so for a conspiracy theory, if there's evidence that a defendant was involved in a decision to commit a crime, and for a murder, if they can prove that he had the intent for that killing to happen and participated, then he could be charged.

But the problem is the witnesses that they're using the statements from were not there.

The people who d- who said these things to the witness are dead.

So there's no way to cross-examine them.

There's no way to know whether they're credible.

Who do you want on the defense? Who would, uh, who would the defense want on the jury?

We'll talk about that.

The death penalty, by the way, was overturned during jury selection.

It was quite an uphill battle because I tell also an accurate story that a local radio station, Shock Jocks, had a billboard truck circling as we had almost 1,600 jurors called on over the course of the jury selection.

And they invited the public to vote man or monster with a picture of Scott in an orange jumpsuit.

And I complained bitterly at the time.

The judge asked jurors, Judge DeLuki, who I became very fond of during the trial, he would ask jurors, The question during Gordyre, are you against the death penalty? If they said yes, he would excuse them.

I complained and objected and said, that's not the standard.

I want to do a whole episode on Jussie Smollett, but we'll keep

you think the judge would accept it? Is there any chance that the judge could reject it? And if so, for what reason?

I've had judges reject deals most recently in Los Angeles, not once, not twice, but three different times with two different judges.

So there's always that chance.

Anytime there is a media spotlight on a case, that increases the chance that the judge is not going to go along with the deal, especially if the deal is objected to by the victims or the victims' close family members.

when there's so

many people who are in favor of a defendant like this with all the money.

Exactly right.

This is the exception.

You tell me what he'd actually need to show the court to be successful.

It's, um, I, uh, I hate to say that there is ever anything that is a slam dunk in the criminal law, but this is about as close to a slam dunk that he's not gonna be able to succeed in this.

And the reason is because generally when you have ineffective assistance of counsel, it's after a trial.

It's after a situation where your lawyer didn't do something, your lawyer didn't investigate something.

In a case like this where he pleads, where he waives his rights, where he does that on the record with a judge who questions him, it's, uh, most judges are just going to kind of summarily dismiss that.

The one little narrow kind of niche that he could pro- potentially try to go through is if he were to have any kind of compelling evidence that he was misled and that he was told that something that led him to believe that he had to lie under oath.

And it would have to be a very compelling piece of evidence, which I don't think, based upon what I've seen, he's got.

Am I, am I off base?

Is that a ground for undoing a plea?

No, but if he's going to then amplify that, it, it is not.

But the way you read it, it sa- it was described as debris.

If he, uh, then kind of, uh, fleshes that out and starts to talk about, "Look, they didn't tell me there was a hair.

They didn't tell me it was of unknown origin.

They didn't tell me, and nobody tested that hair to see whether or not it was for, uh, you know, on a, uh, something that is basically mitochondrial DNA," which is what the hair is.

Um, if they had tested that and they had excluded him to the point that, uh, that suggested somebody else, he's got some, he's got s- some things to talk about.

They're demanding that you explain the crime and so on." And he says, "I'm not doing that." Is that unusual to have the defendant say, like, "I'll plead guilty, but I'm not giving any details"?

So in your opinion, how is the prosecution done so far at ultimately trying to prove the charges and the special circumstances?

Well, I think right now, and I know this may not be a popular opinion, but what the prosecution has proved is that apparently after she died, she was dismembered and she was allowed to decompose in the car, which is gruesome.

I agree with Brian and disgusting.

And, you know, you The deodorizers are graphic, and all of that, and the kiddie pool where the dismemberment took place is all very graphic.

The problem is, is the prosecution still has not, at this point after two days of a preliminary hearing, talked about how they are going to uh forensically show how she was killed and i suppose we've got two more days to prove that but so far that isn't what we've

Where do you see this going in terms of what other people in his orbit knew or didn't know?

You know, I hate to be the cynic here, but this to me is kind of a pretextual prosecutorial gambit or gamesmanship.

What they're trying to do is prove a special circumstance.

See mintmobile.com for details.

The death penalty, by the way, was overturned for During jury selection, it was quite an uphill battle because I tell also an accurate story that a local radio station, Shock Jocks, had a billboard truck circling as we had almost 1600 jurors called on over the course of the jury selection and they invited the public to vote man or monster with a picture of scott in an orange jumpsuit and i complained bitterly at the time the judge asked jurors judge deluki who i became very fond of during the trial he would ask jurors The question during Gordyre, are you against the death penalty? If they said yes, he would excuse them.

I complained and objected and said, that's not the standard.

The standard is if you're against the death penalty, can you still put that aside and follow the law? He didn't do that second frog.

I said, Judge, the case law is clear.

The standard is clear.

You're making reversible error.

I want to do a whole episode on Jussie Smollett, but we'll keep going.

Anyway, continue your –

So find the one you think is iconic, and I'll tell you if it's it.

But we'll see if we – this is a test of whether we're simpatico.

So Nate, when I first met him, was kind of in his prime, and he had been arrested for arson, I think.

And then we had to get him out, and he was able to get down to – I think it was Anaheim where he did his show – And then we ended up, and he was, for anybody who doesn't know Nate, he was quite a figure in the community.

And I remember going to court with him whenever we'd go to court.

I mean, you cannot believe the reaction of other people in the courthouse when they would see Nate Dogg.

Pfizer

But someone looking at this case would say, wait a second, wasn't all of this litigated in the trial? Wasn't it brought up in appeals? Wasn't it brought up in habeas corpus petitions? What's new? How is this different? Because the way that I understand it is, right, it would have to show this evidence, was it available at the trial? This is proving actual innocence, right? How is this new?

Well, the way it's new is what triggered it.

Clearly, there was, when the California Supreme Court unanimously reversed the death penalty, they also ordered an OSC, ordered to show cause, on the underlying criminal conviction.

That generated quite a bit of interest in the case.

Then there was a previous documentary, and lo and behold, a d- State Department of Justice analyst said, "Wait a second here.

There was a van that was recovered a day or two after, uh, Laci disappeared.

It had been burned out.

To me, that feels compelling, no?

More

population.

And then you also have, which is one of the interesting things that we're going to see this term in the U.S. Supreme Court is the challenges to the idea or the interpretation that each state legislature has the dominion and control over the elections in their state as opposed to the court in each state.

Because if that's the case right now, that tilts Republican.

Oh, that's interesting.

So that will, you know, and part of This is a discussion for reasonable doubt, I suppose, but you and I can have it.

Part of what the January 6th, the run-up to that, and what they now are, the state bar is now going after John Eastman for, Eastman had this kind of intellectual theory that That, what the U.S. Supreme Court is going to rule on, that you could challenge that.

Is this the guy that committed a murder finally? Correct is what

They're, they're all generally stacked with libs

...

but what you have to, the, the stack of libs is the...

Look, I rem- I'm old enough to remember when the liberals were the ones who challenged authority as opposed to wanted a totalitarian authority.

So that's, that's kind of a, an, an ironic situation.

But the fact is, this judge has to do what he's doing.

He's doing it very, very adroitly.

[laughs]

Where are you at on it?

First, look, first, you've got a California lawyer on that team and a very sharp lawyer.

He has to know, I haven't talked to him about it, he has to know that when you use a hearsay statement, you add a preliminary hearing, and this is a hearsay statement.

For those who aren't in the weeds, Twiggs is not on the stand.

They want to play a statement.

The fight was over how much of that statement comes in.

the california in california and based on federal rules and federal constitution the only way that they get a probable cause hearing to be okay when you use hearsay is if there is what i call a safety valve where you say okay judge prosecution's going to use it what's good for the goose is good for the gander we want to proffer to you what Something else that this person said.

Does that mean that he did something wrong if he needed to get immunity?

Did you get a sense of where the defense may go if this goes to trial?

Well, to your first point, I normally would say glibly that a probable cause standard at a preliminary hearing basically is my client breathing.

However, I just did a capital murder preliminary hearing last week, and the judge, to her credit, dismissed two of the defendants in that case.

So there is a standard that judges hold prosecutors to.

The interesting thing also to your second question is in that piece you just showed that Brian was talking about, that was the defense lawyer who was eliciting that information.

She was the one who was establishing there was no drone, there was no preparation, there was nobody on the roof, there was no security there, there was none of this, none of that, none of this.

All of that came out from the defense.

Don't you think there's a possibility they may accept that in order to take the death penalty off the table, pleads guilty, no one talks about him anymore? I mean, is that a possibility?