The Chris Cuomo Project - Mark Geragos

Episode Date: January 10, 2023

In this week’s episode of The Chris Cuomo Project, criminal defense lawyer Mark Geragos speaks with Chris about the popularity of the true crime genre in podcasts, the importance of jury selection in a trial, challenges with covering crime in journalism, and much more. Follow and subscribe to The Chris Cuomo Project on Apple Podcasts, Spotify, and YouTube for new episodes every Tuesday. Learn more about your ad choices. Visit megaphone.fm/adchoices

Most people on the left were anti the independent council when it was Ken Starr trying to gouge Clinton, but now are cheerleading when it's Jack Smith coming after Trump. And if you don't see, as you said, the irony in that, maybe you're rooting the Chris Cuomo Project. Remember, it's a collaboration. I need you. I want you. This is for you. Subscribe, follow, appreciate. Buy that free agent merch. You're a free agent, right? Own it. Own being an independent. Own being a critical thinker, okay? The free agent merch is there. We're going to use the money to do good things. Just about there. I've made a couple of donations on your behalf already, but I'm going to start using this money and we'll start talking about it more. Now, true crime, blowing up in the podcast space. Why? Depth. Podcasts play to depth, discussions of trials

and cases and issues and controversies, the convergence of theories, divergence of theories work very well with time. And here you have it. So I wanted to start doing more true crime with you because it's an area I understand very well and I've covered as long as I've covered anything else, literally almost quarter century. And so I am a lawyer by training. I've been around big cases as long as I've been in this business. And one of the best is Mark Garagas. And he has had big cases for a long time. He's a household name when it comes to criminal defense. And he too is fascinated by the evolution of true crime and how popular it is and how it is different than how crime used to be seen, how it's changed culture. How so?

Listen to a man himself. Counselor Mark Garagas rhymes with asparagus. We don't fake the funk here, and here's the real talk. Over 40 years of age, 52% of us experience some kind of ED between the ages of 40 and 70. I know it's taboo, it's embarrassing, but it shouldn't be. Thankfully, we now have HIMS, and it's changing the vibe by providing affordable access to ED treatment, and it's all online. HIMS is changing men's health care. Why? Because it's giving you access to affordable and discreet sexual health treatments, and you do it right from your couch. HIMS provides access to clinically proven generic alternatives to Viagra or Cialis or whatever.

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Plus, price is going to vary based on product and subscription plan. We don't fake the funk here, and here's the real talk. fake the funk here, and here's the real talk. Over 40 years of age, 52% of us experience some kind of ED between the ages of 40 and 70. I know it's taboo, it's embarrassing, but it shouldn't be. Thankfully, we now have HIMS, and it's changing the vibe by providing affordable access to ED treatment, and it's all online. HIMS is changing men's health care. Why? Because it's giving you access to affordable and discreet sexual health treatments. And you do it right from your couch.

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Counselor, thank you so much for joining me. I appreciate it. My pleasure. We have a long history, so I figured why not come and do the podcast? I thought it was a great idea. Well, I love having you, thought it was a great idea. Well, I love having you, and you are a historical figure when it comes to this country's profound interest in true crime. Many, many big cases. We'll talk about a couple of them. But it's really exploded in the podcast space and digital media. Why do you think that is, that in this new form

of media, there is such intense interest in one of the oldest genres of storytelling that we have? You know, it's very interesting to me. It used to be that if you were a criminal defendant or somebody accused in the true crime space, that I used to call the cable and People magazine kind of the axis of evil for a criminal defendant. There was always that fascination. I mean, I would talk to people at People magazine and they would tell me that the difference in a cover story on the newsstand,

you could directly tie to a true crime story as opposed to a celebrity puff piece. So there's always been that kind of fascination. In the podcast world, all you've got to do is take a look at the charts. I do it on occasion, the Apple charts. And it's amazing to me, the true crime fascination in serial. And, you know, it's now actually making of a murderer and how that podcast, it's now kind of gotten into the courtroom where, you know, in serial, there was a, uh, I don't know if I would call it an exoneration, but clearly there, uh, there was a motion printing trial making of a murderer. It changed some minds, not totally.

And with Peterson, there's a newfound fascination with it. We'll know sometime in February if that translated into a new trial or not. So Scott Peterson, charged, convicted, sentenced in the death of his wife, an unborn child, was an active participant in the initial search for her. Did media. Did a very famous slash infamous interview with Diane Sawyer, one of the best in the business. A mentor of mine. You were involved all along the way.

Do you believe he deserves to have his conviction thrown out and get any type of reassessment? It's funny you mention the Diane Sawyer interview because I was doing a lecture the other day and they said there's nothing more painful to a criminal defense lawyer to watch your client's interview get played at your trial and there's nothing you can do about it. As an aside, I was talking about how it was with SBF that the lawyers are telling him to shut up. And by the way, he ends up getting

indicted in record speed in the Southern District by the feds. Coming back to your question, does he deserve a new trial? Yes. You know, what happened was the Supreme Court of California unanimously granted the appeal on the penalty phase. And the reason they did that is because we were objecting at the time that the judge was using the wrong standard. If somebody said, I'm against the death penalty, he didn't ask the next question, which was, can you set that aside and still judge and follow the law? He wouldn't do that. He was automatically dismissing jurors who were anti-death penalty. So that ended up, you skew the jury to get all pro-death penalty, which studies have shown that tends to be pro-prosecution as well. So then he should only get a new sentencing phase, shouldn't he?

That's what he got. He got a new sentencing phase. And by the way, I don't think that should be the law. I think if you use the wrong standard and you skewed the jury pool, that should go to the guilt phase, but that's not apparently the law. Well, hold on. Let's take a beat on it. Here we are in a podcast, which means I'm not going to cut you for a commercial anytime soon. What are you talking about? Why, if they get the sentencing part wrong, would you vacate the guilt or innocence aspect of the case? Because what you did is you skewed the jury pool, the veneer, from the get-go. You only had people who believed in the death penalty and wanted to give the—or didn't have a problem giving the death penalty. And you took away people who had problems with

the death penalty. Look, the most important part of any trial, I don't care, civil, criminal, misdemeanor, felony, is jury selection. I mean, most cases, 95% of the time, are over in jury selection. I know there's a lot of lawyers who will tell you it's after opening statement. It isn't. It's who you pick as a juror. And by the way, let me tell you why. You can be the greatest orator in the world. You can be Clarence Darrow Redux. But the fact is in any, whether it's two-week trial, two-month trial, the one-year trial, you're not going to change somebody, the prison through which they look at life. All you have to do is take a look at our political wars here nowadays, and it's very hard to talk to somebody and get them to change their mind.

And that's the same thing with jurors. So if you start a case with people who are predisposed to and don't have a problem with the death penalty, and you eliminate people who have misgivings about the death penalty, you have seated a pro-prosecution jury. And if you say that they used the wrong standard, which the court unanimously did, then I think that infects the guilt phase as well. Interesting argument. I'll let you decide at home.

Send the comments to Garragus. Rhymes with asparagus. Now, a few questions. Sure. One is easy for you to answer, but I will tell you in advance, and you probably know this already, it is one of the least satisfying answers that a member of the bar gives to laypeople, those who are not members of the bar, not lawyers. Does it bother you? Should I guess? Yeah, guess what it is. The question is, how do you sleep at night if you have a client that you know is guilty and you end up getting them an acquittal or you're arguing for an acquittal?

Yeah, especially this guy that we're talking about right now. I will tell you that, and this is not original with me, it was something imparted to me by my father, who was a hard-charging homicide prosecutor in his day. The time you lose sleep is when you have somebody that you think is innocent. And I know that it's not a popular sentiment, but I sat there for the better part of a year. I knew the evidence at the time, not now, but I knew the evidence in real time better than anybody, clearly better, I think, than the public did. And I will tell you that there was never evidence sufficient beyond a reasonable doubt to convict Scott. I just didn't see it. Now, there was some kind of resonance with white professional women. And the resonance was they were, I could talk to somebody, I would be at the gym in the

morning before going to trial, and they would, they'd say, what about this? And I'd say, well, that's not really true. It didn't happen that way. And what about this? And, you know, he was talking to his lover and telling her that he was in Paris. And I'll explain, well, the reason he was doing that is he knew that once Amber came on the surface, that all eyes were going to be on him and they'd stop searching for Lacey. And you could explain everything. And then at the end, I would always get the same response. Well, I had an ex just like him, and I could see it. And you can't argue with that. That's just something that's visceral that you can't get around.

I totally get the idea that 100 guilty men should go free so that an innocent man doesn't go to prison. And I actually believe that. But I also get why it's so frustrating because sometimes you just know. I mean, look, the most basic standard is very difficult for a criminal defense attorney to deal with, but you understand both sides of the ball very well, is that, well, if it wasn't him, who was it? Because the common standard with this, even what we're looking at right now out in Idaho with those four students that were butchered, forget about the fact that that is a very passionate crime,

which usually suggests some type of intimacy or familiarity with the people and the person who did it. But the monster scenario is a very, very, it's very helpful to creating reasonable doubt, but it's very rare as a homicide scenario. The idea that it's a serial killer or a one-off monster who's in the midst,

very rare, over nine times out of 10. If you have to find out who did it, it was someone who knew who was killed. Well, by the way, you hit on something that I've said for years. If you have to, in your closing, be arguing reasonable doubt and just reasonable doubt, even though that's the standard, even though the jurors say that's what they're going to adhere to, they want an alternative explanation. And that's not a, arguably, reasonable doubt generally is not a winning strategy. Even though it's supposed to be in law school, but people want satisfaction, especially when they have to live with the determination. I would have, I don't have any documentation of this, but during the Casey Anthony trial, when they went for the death penalty, after all of the confusing information

about the father, I could tell just looking at those people, they were not going to give her the death penalty because they had some questions. And even if it didn't go to what happened to the child, they have to live with the decision to kill somebody. And that's asking a lot of somebody. Convicting somebody, they can always put it off on the proof, and this is what it was, and even if I had doubts, this is what the prosecutor said, and everybody else in the room said it. That's different than the death penalty.

I'll also tell you this at home. Garagus, rhymes with asparagus, was the first lawyer I had ever dealt with on television who respected the difference of zealous representation as manifested in the context of saying, my client didn't do this. My client is innocent and they cannot make this case. They are not making this case against my client. Now, that to me has always been, I actually get tingles when I say it, which is odd. It also could be cold in here.

But that matters, okay, especially as a journalist who's also a lawyer. Garagus would say, and it wasn't a tell, didn't mean that he thought his guy was guilty, but there's a difference between him saying, I'm telling you, this man or woman is innocent, okay? They did not do this. When he would say that, that meant that he had a case to put on, that he was going to say, it wasn't this guy. I don't know who it was. I think it was this guy, but it wasn't my guy. Versus lawyers who routinely will say, my client is innocent. And not only do they know the guy's not innocent, but they are pretending. And I think that exceeds the bounds of zealous representation.

I don't think a lawyer should say this person is innocent when they mean not guilty. Correct. And that confuses, I think that confuses people. I mean, it reminds me of the difference between when people, I got robbed or I got burglarized. I mean, there's a difference that should not be missed. And it's the same thing with innocent and not guilty. Part of the beauty of the system is that the criminal defense lawyer, why I originally was so attracted to criminal defenses, and why I originally was so attracted to criminal defense is I'm old enough to remember when criminal defense was a noble way, you know, to fight the government. If the government was coming after your client, you were there. And mind you, people talk for years, I've heard about, well,

you know, high-priced defense lawyer or you've got the resources yet. It's a rare, if not almost non-existent case where the defense has better resources than the prosecution. The prosecution has virtually like the old George Allen joke when he was with the Redskins is Edward Benning Williams, who's one of the great trial lawyers, said, I gave him a blank checkbook and he's already exceeded it. That's kind of the philosophy, if you will, of the prosecution. It's not their money. It's the taxpayers' money. So they just go for it. Can you imagine if prosecutors had a budget? Yeah. If they had to deal with a budget? I mean, they just, it's unlimited. And it's also dangerous. You know, it's supposed to be part

of prosecutorial discretion. It's can you bring up the evidence that will make this case beyond a reasonable doubt? And is it in the public interest to do so? And I think that second part gets neglected. It gets completely perverted in our political process where, you know, people, these, all these investigations, I, you know, I've, I'm very clear on this. I know it's in the Constitution oversight. I don't think politicians investigating politicians is a good thing.

I don't think it creates consensus in society. You almost never have a slam dunk. And we see what's happening now with ping-ponging investigations, where the same people who are outraged about the kinds of questions they were asking about President Trump now want to ask the exact same kinds of questions about Biden, and nobody sees the irony in it. That tells you that the game is broken. Look, no shame in my game.

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Now, here's good news for us. I'm not going to stain you with politics because you're better than that. But even though you are a member of the media now that you bought those magazines, what do you think? I wasn't going to see that? Boy, you used to come after me about the media. And the media this. And the media that.

And you know what really surprises me about this so-called media? And I'd be like, so-called? What else could you call it? Now you're in it. I'm in it because it's so frustrating to some degree. I mean, look at what has happened. What used to be kind of, you talk about real crime or true crime, whatever way you want to characterize it. I used to get so upset about the, I probably can't even say it anymore, but the bleach blonde former prosecutors who are opining about the cases.

And that kind of second guessing when they don't really know the evidence and they've not tried a case. I get that. But that is now kind of infected. That same kind of your prosecutorial cheerleading has infected both sides of the political aisle. And you talk about the irony from Trump to Biden. of the political aisle. And you talk about the irony from Trump to Biden. I've been saying, you know, because one of the cases that changed the trajectory of my career was when I represented Susan McDougal in the 90s, who was the erstwhile business partner of Bill and Hillary Clinton. And I was railing about independent councils. Back then it was Ken Starr who just passed away. independent councils. Back then it was Ken Starr who just passed away. And now we've got the same thing in reverse. And by the way, most people on the left were anti the independent council when

it was Ken Starr trying to gouge Clinton, but now are cheerleading when it's Jack Smith coming after Trump. And if you don't see, as you said, the irony in that, maybe you're rooting for one side too hard. But look, I'm completely transparent. I mean, this, you know, the irony in that. Maybe you're rooting for one side too hard. But look, I'm completely transparent. I mean, this, you know, is my podcast. It could be whatever I want and anything I don't want it to be, it doesn't have to be. But being back on TV at NewsNation, my show is for independents. I say that. I think the party system is a problem. I think I could make that case dispositively and easily. It's always been attacked throughout our history, started as factions and then parties. And leaders have been against it forever. It's always been attacked throughout our history, started as factions and

then parties. And leaders have been against it forever. It's not in the Constitution. It's not an animal of law. It's just our culture. And I think it's anathema to a more perfect union. And I think if people leave, the parties will be better off. So I'm fine attacking them, and I'm getting a lot of shit for it right now. And that's okay. That's okay. I'm willing to take that heat because it's evenly distributed. And I mean, that's hard on my mail, but it's okay in terms of what you should be worried about, which is, are you being fair? Now there is a development that, and by the way, that's where I learned about counsel Garagos was back in the nineties when, you know, he doesn't appear to age, but Clinton was the first thing I ever covered in this business. And it was a morass. And the

interesting thing is one of the few things Republicans and Democrats have really agreed on in both counselor and my life was they wanted to get rid of that independent counsel statute because they said the guys can go wherever they want and do whatever they want. But now I think it's coming full circle. And the only way to do these investigations is literally by getting a garrigus. Okay. Say, Hey, do me a a favor will you do some public service for a year will you investigate this for us because you know they don't know his political affiliation he doesn't care about politicians let him tell us let someone that you respect who knows the system let them investigate whatever it is no political affiliation because otherwise you'll never get consensus but there was something that my daughter told me about true crime. She loves true crime. She's 19, 20. She doesn't want to be

a lawyer at this point, which is good. Mark's daughter is a very well-established criminal defense attorney in New York City. She said that the big problem that you would have in trials, because she knows this at 19, is that they'd say, well, I saw on TV that you should have DNA evidence that shows this and that. That was really hard for people. They would expect instant answers because of what they saw in Law & Order. But with this digital wave, now people get how difficult it is and that you're not going to get a fast thing and they're almost all circumstantial. And I think it may help the jury process that if they're into true crime in the podcasts, they're getting a much more realistic take on how hard and subtle the process is than they did from TV. Well, it's interesting. Take a look at what Barry Sheck and his group have done

for exonerations, DNA exonerations. To my mind, you could give credit to that for giving people pause on the death penalty. I think that that was one of the reasons. I think that you're starting to see, with these podcasts on true crime, people are starting to say, well, wait a second here, and doing what there's more to do.

A juror is not to be, I've always complained about stealth jurors who have an agenda, but a juror is supposed to be, as I explained to them when we picket, you're supposed to be a judge of the facts. Pretend you're wearing a robe for the facts. The judge will give you, who's up there on the bench, will give you the law, but you're to be on the facts. And part of being a judge on the facts, it's to be skeptical. You're supposed to go in there and not have a dog in the fight. You're supposed to look at it, look at the witnesses, judge whatever's presented to you with a skeptical eye. And that's the job.

And I think that's one of the good things that have come out of podcasts. There's a long form, or at least a longer form, you know, part of the problem used to be you do a hit on cable news at night, and it's a two or three minute segment. Podcasts, you get a long form version where people start to discuss it. And if you're interested in it and you're focused, you start to get a more nuanced view of what was really going on as opposed to kind of what was really going on, as opposed to kind of what was fed to you in a three-minute or a four-minute or even an eight-minute clip. Yeah, that's the good side. The bad side, as I told my daughter, and is definitely true. Now, Garagus is the first step into true crime. I mean, this is,

it's not like he and I are taking apart a case. But I haven't done any of it on the podcast because I hate to succeed. No, because I wanted to focus on a political dialogue that I think is important to happen. I've always really appreciated crime in journalism because it's the perfect narrative. It's made for once upon a time. You have great minds invested with resources in giving you at least two different versions of a story. And it's great because there's a beginning, middle, and an end, and there are consequences, and it's relatable. So crime has always been a lustful thing for any storyteller. But my problem with the podcast, now that I'm looking at it to figure out what space I can

carve out for people, is these people make shit up. They just make things up. I'm looking on the Idaho case now. Yeah, because the guy at the truck knew this and knew that one and knew this. It's not true. So yeah, I finally get through to the, one of the investigators off the record. And I was like, so this guy knew the thing. And he's like, where'd you get that? I said, well, I, I saw it on the one of the, and then I caught myself. I was like, am I really about to tell this guy that I saw it on TikTok? And I, you know, I was like, am I really about to tell this guy that I saw it on TikTok? And I, you know, I was like, if somebody sent it to me, he's like, listen, just because somebody says something confidently doesn't mean they're saying it competently, which

I thought was a great, great line. It's a great line. I like that. So then I started looking. They just make things up about what they think may have been true. So Casey Anthony now, they do this series, everybody complains, should you be doing a series on Casey Anthony? Or should you do a series on Jeffrey Dahmer? Well, if you want to watch, then isn't that the answer? I haven't seen it. I had

to watch a little bit of it because we were going to cover an aspect of it. But people are very upset about it. And it's such an interesting thing, I think, to get your take on that this line of should you do a Dahmer series that makes him somewhat sympathetic in terms of what he went through that made him a monster, which is what he was, or Casey Anthony, should she get paid to tell her story?

You and I lived through Casey Anthony from the standpoint I was commenting on it. I know Jose well and think the world of him. But, you know, ABC, your old employer, as I remember, licensed pictures in that case for $250,000, which I think ended up making its way to the lawyer to defend her. And when people make the argument that she shouldn't be able to do this, number one, she was acquitted. Number two, you know, the son of Sam, so-called laws across the country, and there's a patchwork of them, have not really stood up real well. I mean, a post-conviction, there's restitution orders, which is a different thing,

but there's a free speech component and there's the ability to tell your side of the story. I mean, she didn't get on the stand and testify, and she laid low, which I think was a smart thing, but whether it's Casey Anthony or Scott Peterson or any of the others that you can think of that, you know, the so-called trials of the century that happened, that used to happen every year during sweeps weeks in May. There is a story to be told and people, as you accurately said, are fascinated by it because it does have a beginning, middle, and end. It does give rise to arguments or a give and take, and that's part of the nature of a community or a tribe. And it's almost always relatable to a dynamic in your own life. Not to mean that all of us are a

step away from chopping somebody up, but that you know people like this. They look like people you know. The dynamics of where they live, you know, there's usually some kind of hook. And a son of Sam law is just so you know at home that counselor is referring to. So a son of Sam, you know who that guy was in New York City, right? And he did all those horrible crimes. They passed a law that you shouldn't be able to write a book and benefit from your own crime. And that money should be given to the victims as counselors calling restitution. That is an arguable legal premise. It sounds good, feels right, but doesn't mean it's going to have constitutional sufficiency. And the ABC case was very interesting.

ABC got exposed for paying for materials to tell the Casey Anthony story. It was outed by the media who had lost in the bidding. Exactly. Which I found very interesting. You know, this is the problem with your competition being your critic base in the media. So other people were bidding on it. They just didn't win. And no, I wasn't bidding on the thing. It's not like I'm trying to defend myself. I don't have any problem with the practice, and I'll tell you why. This is going to be controversial. Should you pay people for their

story? No. Easy answer, right? Ethically, no. Okay. But you will make a fortune exploiting their story and telling it in different ways on different shows and different times and specials and everything else, and you'll make a fortune doing it. That's okay. But they get nothing. Even if they wind up being acquitted, they get nothing. Now, that makes it a little bit more confusing, doesn't it? And I've always seen that gray space when people would say to me, especially in the Oprah Winfrey and the daytime TV days started coming up, they started paying people for their stories. They were like, well, why should I go on with you and not her when they're going to pay me? I never had a good answer to that. There isn't a good answer to that.

I would say, well, that's daytime TV. This is news, but it's all blurred now. It's all person by person. I remember the controversy where we were representing Michael Jackson and CBS used 60 Minutes to interview him for the news and at the same time had his special from the entertainment arm of CBS. And they paid a very large sum of money for that special. And there were people who were trying to link it together, and the late, great Ed Bradley was denying the connection, and I'll leave it at that. Ed Bradley may rest in peace. I live in his front yard from where his home was. They have since sold it, but I knew him.

He was very good to me. We went to the gym together, and he was in a sticky wicket in that one because he was forced to cover for the corporate interest, and he was in a sticky wicket in that one because he was forced to cover for the corporate interest. And that's always a problem, and it's always going to be one. And the media is always going to have an owner, right? It's always as long as it's a business.

So I'm going to let you go because you're pressed for time, but I will say this. This was enjoyable. Thank you. I'd like to have you continue this discussion. I would like to continue the discussion here and on News Nation. You're always welcome. I have tremendous respect for you, and I look forward to following the legacy of just one of your cases with Scott Peterson. But you're always welcome anywhere I am, and I wish you and the family the best.

Thank you. I appreciated you the same. Mark Garagas rhymes with asparagus. That was really fun. I think that we're going to do more of this, talking about what matters within different criminal investigations and trials from the perspective of people who understand the strategy involved. What do you think? Let me know.

You know how to comment. Our thanks to Mark Garagas. My thanks to you. Please subscribe. Please follow. And please remember that free agent merch own being an independent. I'll see you next time.