The Comedy Cellar: Live from the Table - Anti Semitism, Comedy & the Chauvin Trial

Episode Date: May 28, 2021

Raanan Hershberg is a comedian who has performed on The Late, Late Show with James Corden and Comedy Central.   Misty Marris is a trial attorney based in New York City specializing in the defense of clients in entertainment, sports, employment, civil rights and sexual assault/abuse cases. Misty appears as an independent legal analyst on a variety of news networks including Fox News, Fox Business, CNN, HLN and NBC covering of the moment cases and legal  issues.  

This is live from the table, the official podcast of New York's world-famous comedy cellar, coming at you on Sirius XM 99 Raw Dog and on the Laugh Button Podcast Network. Dan Natterman here with Periel Ashenbrand, and we are in the studio at the comedy cellar. And, of course, Noam Dorman, the owner of the comedy cellar, is here. We also welcome Ranan Hirschberg, who is a Comedy Cellar regular. How long have you been regular? I got in right before the pandemic, so I've been in for, I guess, a year and a half or four months. Well, he's a relative newcomer. We'll leave it at that, considering, you know, let's face it, there's some dinosaurs here at the Comedy Cellar.

I'm talking to one. Renan Herzberg's credits include The Late Late Show with James Corden, Comedy Central podcast with Joe... He has a podcast, rather, with Joe List called Joe and Renan Talk Movies. I know that Doug Benson has a movie podcast, so I don't know how you feel about his podcast.

It's just us two. We're the only two movie podcasts. Just you, the only two? We're the only two worth mentioning. Anyway, by the way, I got an email. We all got an email from Liz Ferriati, the general manager of the Comedy Cellar, saying that we're going to full capacity.

What's the date now? May 31st, right? Well, I don't know. I mean, I think I deleted it. June 1st to May 31st. Oh, it's very soon. And you had to present your VAX card at the door, I guess. Is that correct? Yeah, yeah. and is there any mandate from the city as to how the, as to whether you need to verify the, I mean, how you verify the vaccination?

These cards look pretty forgeable to me, quite frankly. No, we don't. I mean, it hasn't been very, no, we haven't. We haven't gotten much guidance at all. Reminds me of the old days of fake IDs, you know? I mean, you can literally create one of these in, like, Photoshop. You know how to use Photoshop, Perrielle? I actually do know how to use Photoshop, no.

I also know how to use Illustrator. Let's see. Let's do a little, like, a Comedy Cellar challenge. Let's see you do a fake Vax card for next week. Whether or not Perry L can do it is not the issue. The issue is

people can do it. Whether they're going to make that sort of an effort to see a comedy show, I don't know. I'm just feeling ornery. But yeah,

I mean, I don't know if I make that kind of effort for a comedy show. Who knows? Why are you feeling ornery? I just, you know,

I don't know. A lot of stuff. A lot of stress. I mean, give us something. Nothing in particular. Just, I don't know. You know, sometimes I think it's just a biorhythm. Sometimes you just feel stress.

Sometimes you don't. But I have not been. I'm fit to be tied right now. Well, one wonders how we ever feel other than stress, given the precariousness of our situation. That is to say, the march of time toward the inevitable grave. But anyway, let's lighten things up a bit. I invited Renan on for a specific purpose. Renan, I think you probably know why I invited you on. I assume it has to do with Israel. I feel like I'm going to get sandbagged here. You're not going to get sandbagged,

but I did want to discuss the post that you made, which is Renan made. Maybe teabagged. We'll see about sandbagged. Teabagged, all right. Renan, and I commented on the post, but Renan made a post on Instagram

that's gotten so far. Isn't it Ra'anan? Yeah, Ra'anan. Well, it can go either way. It's Hebrew. Ra'anan. It's actually Ra'anan. Yeah, you got to be able to make a guttural sound to correctly pronounce my name.

I can't do it. It's like Ra'anan. Yeah, you got it, kind of. Ra'anan made a post on Instagram that caught my attention in many ways at 793 likes, which I must say, uh, give it,

given the number of followers you have is a fairly robust like to follow a ratio. It's about one sixth of your followers. I feel like that's a backhanded compliment right there. I have even less followers. You have to judge the amount of likes by in relation to the amount less followers you have to judge that's the amount of likes by in relation to the amount of followers you have yeah of course of course yes you have more followers than i do so by no means a backhanded column and neither of us have hundreds of thousands

it's just funny the way you said it you're like anyway i have 100 which is a huge portion of the small amount so in other words no well it's it's a robust number compared to me anyway, you know. But it got a lot of likes now and a lot of comments that are very very positive. But I don't want to read it unless Renan authorizes me or unless he wants to read it himself. I do want to say it was a joke. I feel like no one's... I feel like it has not been called a joke. It's not been labeled a joke. It might not be that funny to you, but it was a joke. It's quite witty, but...

Okay, yeah. Well, we just haven't said, you know, like I wasn't making like some... I don't make big like... I don't... I think you should have a quote of one serious post a year and I wait for an animal to die or something. I think it was taken seriously.

You got to read it. You got to read it because people are listening to a show here. Come on. I'm not going to read it unless Renan authorized me to read his. If he doesn't authorize you to read it, then we can throw him out. Yeah, read it, Dan. Imagine listening to this and then he'll find out he's not going to read it. Like, the fuck did I listen to this show

for in the first place? I will read it unless you read it, but I will read it. Dear people asking me about Israel just because I'm not going to read it. Like the fuck did I listen to this show for in the first place? I will read it. Read it. But I will read it. Dear people asking me about Israel just because I'm a Jew. All I know about Israel is that when I, is that I got my first blow job there on birthright when I was 16 years old. I should probably mention that birthright say a program where Jewish kids get sent to Israel. Don't butcher my jokes with the fucking facts.

That is the limit of my knowledge of Israeli foreign policy. Please leave me alone. And then this is a postscriptum of sorts. The blowjob was from... An asterisk. An asterisk, yes. The blowjob was from a girl who was actually dating some other dude, but I just

swooped in. Though no one seemed to care because I had been bullied for so long before that, like for as long as anyone could remember, so people thought I deserved to win. And then that dude tried to fight me and I kicked his ass and everyone was like, well, he has a right to defend himself. But then I kept on kicking the dude's ass over and over and over again and people were like, this is a little awkward. I think the guy getting bullied has now officially become the bully. Anyway, that's all I know.

That I got my first blowjob on birth right when I was 16. I don't have any opinion on the matter. Please leave me alone. And I assume our listeners understand the metaphor. Yeah. But if you don't understand, he's making a metaphor about Israel. Israel, he's comparing to himself that he stole a guy's girlfriend. The guy kicked his ass, tried to kick his ass, but he kicked the guy's ass. But since he was bullied for so long, he deserved to win.

But then he kept continuing to kick the guy's ass. And now he, the bullied, had become the bully. So that is an analogy. So missiles are like a blowjob? I'm not sure I get it. So first of all, Renan. It's not the perfect metaphor. I want to clarify, is this your position on the Palestinian-Israeli conflict,

or are you just going for the laugh? I think the joke here, and it's probably not a great one. I wrote a lot of Israeli jokes. This one got, you know, in the last week or two. But I think ultimately the joke is more about me or an American Jew kind of not wanting, getting mad that they're always having to defend Israel, you know? But also kind of wanting to say that they, there's a lot about Israel they don't like, but being afraid to say it out loud too, at the same time.

So if anything, it's really, it's more of an expression of the moral crisis of the, my generation of American Jews, you know. But, you know, I mean, it's obviously a complicated situation. I'm very fond of you both comedically and personally that I actually found it disturbing, the post disturbed because, and I'm just being honest, because I felt that, I felt that you were saying in a witty way, but you were saying that it basically Israel is the bully of the region. And furthermore, many people seem to be on board. But Israel got the blowjob.

Yes. You really stuck on the blowjob. So I didn't say, I was like, oh, Israel, anybody gets the blowjob. Anyway, go ahead, go ahead. If anything, it's very offensive because I'm using a girl as a metaphor for like land so it's really it's quite a problematic uh post really um i think i don't well let me just a i don't know that much i'm trying to learn more um so but you know a lot of people don't you know i know probably more than some but i don't i'm not i'm a fucking idiot but i still want to be able to do jokes about whatever I want, you know,

but I do think Israel has always, there's always been this tension between what it does for survival, which is valid and what it does in its tactics that go beyond survival into some kind of domination or an asymmetric war. And it's always kind of scurred that tension. And I do think in many ways Israel has, and once again, I'm an idiot. And if you throw facts at me,

I'll probably just, you know, bow over it. But I think Israel does do things that it's obviously bullying and aggressive. Yes. So this is interesting. This is not just about you, but I've heard this like five times in the last two weeks, enough to think that maybe this is becoming a

trope. I don't know what it is. But quite often people have been saying, I don't know that much about the situation. It's complicated, but I just feel like, and I'm noticing over and over and over again that people are kind of hiding, they're criticizing Israel and then hiding behind the fact that they don't know that much. Where one might say,

if you don't know that much, shut up. I don't know that much about string theory, but blah, blah, blah, blah, blah, blah, blah, blah. I know it's very, very complicated. Only some physicists understand it. But here's my opinion. Well, nobody... If a comedian could only make a joke

on the thing they're an expert about, there'd be no comedy. No. You'd be out of business. No, but we're not talking... We're not making... We're not talking about... No, but this is...

I didn't mind the joke. This is different because... Well, let him finish his thought. Well, I thought... I'm just saying that... All the fucking time. Go ahead. No, I thought you were in the midst of...

I thought he was done. Well, now you're taking the wind out of my sail. So, but you're getting into the thing. But listen, let's see how complex it really is. When you fire missiles into another country, is there any situation under which you should be surprised or think it's inappropriate for them to fire back? So this is a question because I still want to go back to the fact that my thing was a joke

and i do think comedians should be allowed to make jokes even if i'm not like an expert on no no of course you can i don't i don't mind though but but i'm but nevertheless talking outside of the joke no but there no but there is something in the joke which is making a point and it's it's fine to make a point i'm not offended by it but it does kind of skirt what seems to me the intellectually honest price of admission to this conversation, which is if you are a nation and you have missiles being fired at you, asymmetric or otherwise, whether you're more powerful, whatever it is, is there some scenario where you have to take it, where you're not entitled to fire back? In other words, people are making this analogy like, should we have, would the Second World War have been less immoral if we had allowed, you know, let the Japanese to kill more of us?

I mean, those are, I mean, these are like false equivalencies, right? No, what's false? You're the democratically elected leader of the nation of Israel and missiles are coming in. Is there some scenario where you shouldn't fire back? That's what I'm asking you. But the difference between firing back and possibly firing back with some sense

of trying to minimize casualties. No, fire back to the extent that's necessary to make it stop. Well, that's, I mean, they didn't, first of all, they didn't make it stop. They're still firing on both sides. And do you think they have any obligation to like not, you know, because obviously when they fire back, they kill way more civilians than have been fired back on Israel.

And these are people that they're essentially in an occupied territory. Do you think they have no, and I don't know too much about foreign policy, but do you think they have no obligation to like minimize the death of the people they shot back? Cause clearly they have, they have obligations to try to minimize civilian casualties. Do you feel like they did? From what I've read? Yes, I do feel like this. As a matter of fact, there was a UN guy who misspoke and actually said that he thought they did.

But the fact is that these missiles come from within civilian areas. And many people say, and I don't even know why I'm putting it this way, just to be less contentious, that there's a pretty credible accusation that human shields are part of the strategy. Human shields are also used as an excuse. Whether Hamas uses human shields or not, that doesn. Human shields are also used as an excuse. Whether Hamas uses human shields or not, that doesn't mean Israel can just be like, well, they're human-human shields,

so now we're going to kill as many children as possible. No, I don't know. Listen, obviously, this is where it gets ridiculous. Israel is, as you say, a thousand times more powerful than Hamas. If he had wanted to kill civilians, there wouldn't be 200 civilians killed or 100 combatants and 100 civilians. There'd be thousands dead.

There's no... Israel has the power to do whatever it wants there. I mean, listen, let's put the shoe on the other foot. If the Iron Dome had gone down for 90 minutes, do you have any doubt that every one of the 14,000 missiles at Hamas would have rained down trying to kill as many Israelis as possible? Well, they say a cat, when he scratches you, is trying to

kill you. But if my cat scratches me, should I throw him out the window because he could have killed me if he was bigger? Does that mean you think they would have tried to kill as many Israelis as possible or they wouldn't have? Of course. Of course. I'm not... Now, Israel's not trying to kill as many civilians as possible. If they are, they're really

bad at it considering all the... But you're conflating Hamas and civilians. Like, just because Hamas wants to kill as many civilians as possible in Israel doesn't mean that, you know... Well, let me ask you this then. So many children died, so many people are not.

To conflate Hamas with the citizens of Gaza. You're very agile here, but you're ducking basic questions, which, I mean, if, when Hamas is sending the missiles into Israel, don't they do it knowing, and by the way, they have no objective here. It's not like they're sending missiles to defend themselves or sending missiles

in order to aggressively take land, or the only, there's just a pure kill civilian. Yeah, I'm not, I hate him. And all of a sudden, the leader of the country who's taking incoming shoots back. Now, of course, civilians are going to die.

You think there's some scenario where Israel's going to shoot back and civilians aren't going to die? You think Hamas is not fully aware that when they shoot these missiles, that missiles are going to shoot back and civilians aren't going to die? Do you think Hamas is not fully aware that when they shoot these missiles, that missiles are going to come back and kill civilians? Do you think that they don't also know that the pictures of civilians dying are actually how they achieve victory here?

The only, like, I'm trying to be fair, but the only objective Hamas actually could have here in terms of benefiting from this conflict is the civilian casualties. What other benefit could there be to Hamas? But that still doesn't justify Israel. The other benefit potentially is to- Well, it does. Listen, when America got hit with 9-11, we did a hundred times worse when we made it Afghanistan. Nobody said we didn't deserve it. We weren't entitled to it.

Nobody said, Barack Obama was droning people in tents years after 9-11. When Germans died in World War II, and I don't mean to compare Palestinian people to Nazis, but I compare Hamas to Nazis. When Germans died in World War II, people blamed their Nazi leaders, not the allies for defending. When Germans died in World War II, people blamed their Nazi leaders, not the allies for defending. When people died in Japan, people blamed the emperor for getting

them into a war with the United States. Normally, when you have an evil leader that sucks your country into a war, the evil leader is the one people are upset with, not the country that fires back. But excusing something based on what other people did is kind of fallacious. I'm giving you a moral, listen, dude, you live where? In what borough? Crown Heights. Okay. It looks a little like Gaza, honestly. If you start getting missiles in Crown Heights and your family is going into bomb shelters on 92nd notice, you are going to expect your goddamn leader to fire back until it stops. And if they don't, you're going to vote them right out of office. Everything you're saying, everything you're saying will disappear the second you find yourself in a bomb shelter and see your neighbor's apartment being blown up.

And by the way, a few of your family's friends being killed. That's a false argument. That's like saying. One more thing. One more thing. We also know Hamas builds no bomb shelters. None. Zero.

Why do they do that? But that still means Israel has a responsibility to minimize the death of- How do you know they're not? How many deaths- I guess, how do you know they are? Well, why- Which one? How do you know we are?

And how do they know they're not? Because the number actually, given the power that Israel has and the tremendous amount of retaliation that went on, 200 people dead. Listen, in the other countries in the Middle East, when they have battles, you deal in tens and hundreds of thousands of dead. When Iran and Iraq went to war, more people died in one day than in all the Arab-Israeli wars combined on both sides. When there's a civil war in Syria, you have 500,000 dead Syrians. When Israel goes to war against Hamas, you have 200, not civilians, 200 people dead,

some of them are civilians. But I can't like murder five people and be like, hey, there was a bomb in Afghanistan. So what would you do if you were the prime minister of Israel when the missiles come in? Well, also, first of all, when I say bully, that's like a big umbrella, and you specifically meant with that.

I mean, do you not think a joke about Israel being bullying has any weight? I don't mind your joke. I don't mind your joke. I just don't understand. You're taking my fire because... Just to zoom out into the comedy world for a second do you think that at this point at this juncture in history

and considering what's going on do you think comedians have any responsibility when they do make jokes so so you know in other words assuming it was just a joke does being just a joke is that i don't think it's just a joke i mean obviously i i think israel is bullying but i also don't think the question of israel being bullying i didn't in the joke specifically say israel is bullying for this specific reason about firing rockets i said israel is bullying so you know i would just mean that's kind of a wide umbrella oh they make another point because it's important. But it's true that neither of us technically know. Like you say they minimized and I get the feeling that they did not

because over 200 people died and 60, 70 children died. I get the feeling that they did not minimize. No, none. How many people? Okay, two things. First, I'm going to say the first thing. I want to get back to what you just said.

It's very important here, not for anybody to think, that we, I don't take very seriously the humanitarian tragedy of all this. Children dying, children are not terrorists, children are not anything, children are children. And children dying as a father and as a friend of Palestinians, this is beyond, it's incomprehensible, the sorrow, and it's impossible emotionally to deal with that. So nothing I'm saying here should in any way- I'm not saying you- Hold on, no, hold on. Nothing I'm saying here should anyway be taken to think that I minimize it in any way.

Nevertheless, what I'm saying is that if you have how many – 3,000 rockets were fired at Israel from – how many? Something like that? Three, four thousand. Yeah. Three, four thousand. And you know these are fired from densely populated areas. And you know, they don't have bomb shelters. And you know, Israel's returning fire. How, what number of civilians would you have expected where it would have like felt right to you that Israel was taking precautions. Like, how do you think they're going to fire back at these missile silos and not have people die? Not silos, but...

Or missile... Batteries or whatever. Yeah, well, I mean, like, what... I'm accusing you of extreme bias here because it sounds to me like I would say, if you had told me that 2,000 people died,

I wouldn't... That on the face of it, I don't know that much about warfare. I wouldn't say like, oh, that's ridiculous. 3,000 missiles fired and 3,000 back and 2,000 people died. I mean, I don't know. You know, that was 200 people dying. That sounds like quite a low number. Compared to Israeli casualties, I think you're looking at- No, why would you compare them? In what war do you- As a matter of fact, I would say wars were-

Well, I think we should compare. I think we should look at asymmetric wars. Tell me, fine, give me an example of any war we've ever done that. I mean, I do it. I mean, morally judge an asymmetric war. So America then has been the bad guy basically in every war it's ever fought because Yes! Yes! World War II, you can because way, way, way more Nazis died

than Americans. So now you can draw a conclusion about in Japan, my God, even without World War II is not an asymmetric war. The Nazis were a very powerful army. Apparently not. But like the Iraq War,

the first Iraq War was very asymmetric. And we killed so many more people. I think you can't, I mean, I think there is moral, I think you can look at Israel and Gaza and be like. So what are you saying that we should, that they, that's not,

this is what I understand. Pearl Harbor, as it were, that's what defines the war. Then when you, when rockets come into a country, the leader of that country has to defend that country. And asymmetrical, that implies that you have to do it with one hand behind your back. No citizen will reelect a leader that defends them with one hand behind its back, because the other side purposely exposes, or stupidly exposes, or for whatever reason, is just not good at warfare. So they're not good at it, so we have to take more missiles, and that is crazy talk. That's not the way, that's not, not only at it so we have to take more missiles and that is crazy talk that's not the way

that's not not only it's not the way the world works it's not the way it is not the way you would want your leader if if your neighborhood were being bombed you would want it stopped and you would say do whatever you got to do to make it stop i'm i'm getting bombed here but we do that with world war ii we judge the firebombing on Dresden. We think that was unnecessary. We think that was... No, that's not true. Dresden, we judged because they were firebombing civilians for the sake of killing civilians. Well, but in the moment,

they assumed it was obviously part of the war. No, the firebombing of Dresden was intentional trying to inflict civilian casualties. That's a... As, by the way was the adam bomb neither of us are in the israeli army neither of us know but my interpretation between me and you is that i don't know so i don't you don't know either though so why listen you don't make accusations in life unless you do know but you don't know either and you're making i'm defending

i'm not i'm not making the accusation the burden of proof is not on me if you're going to say israel's targeting civilians you can't you have your burden of proof is not on me. If you're going to say Israel's targeting civilians, the burden of proof is on you to say so. If I say you're a racist and the reason you were mean to Sherrod Smalls was because he's black, I have to be able to back that up. I can say, well, that's the feeling I got.

I'm going to say it in public. You're saying if neither of us know whether Israel could have done a better job minimizing lives in Gaza, you're saying the burden of proof is on me over you? Of course it is, because you're making the claim. Well, you're making the claim that they didn't. No, I'm saying I don't know. Well, you know, you're saying they didn't. That's different.

No, what I said was I read some articles which seemed to say that they didn't. The number to me, in a common sense way, doesn't seem high. But I'm open. Hold on. Let's hear you. But I'm certainly open to persuasion. If you have a fact, something you read, an expert, an article, some metric of some other wars, even a common, something, I'll say,

oh shit, maybe he's right. An interview with someone, but just to say, you think it's true and you're gonna go public with the accusation, I mean, I don't think that's right. For me, 60 children over two children in Israel is asymmetric, is to me, is to me asymmetric. That's my feeling on that. So Israel should have waited for some more children to die

of its own children before it had the right to bomb back? Can I ask a question? I don't understand the argument. The only reason that, first of all, I will start by saying, like, any child or civilian, anybody dying is a fucking tragedy.

So that's Palestinian, Israeli, anything. And I am, my heart breaks for all of it. The whole thing is so devastating. But to Noam's point, I mean, my sister-in-law and brother-in-law and family are right on the border and they had bombs raining down on them 24 fucking seven for days on end. They were living in a bomb shelter. And the only reason that most of those people are alive is because of the Iron Dome. He's making an argument against the Iron Dome.

I'm not making an argument against the Iron Dome. Why would you say that? Because it saves Israeli lives and your whole argument is based on the fact that not enough Israelis died. No, I'm saying that

because they have an Iron Dome, they can still take into account that Gaza is more defenseless and have an obligation not to kill as many people. I made the point before that the liberals say that Iron Dome is 90 percent effective. So Israel should risk the other 10 percent. This is when the people who say Pfizer is 97 percent effective and they still won't take off their masks. You know, like you taking risks. You can't take you can't say to your country, if you're a leader, listen, we're going to get nine out of ten, and we're just going to let the other one out of ten fall wherever it falls.

And if some of you kill, well, as long as it's not more than as Arabs who were killed. I think you have to take into consideration, even if it was 100% effective, you're still talking about an assault on the daily life of a population. Absolutely. But here's my question. Where is your anger at the one party here that we know, that you know, has dirty war criminal hands? You may have a theory about Israel, but the dirty, uncontroversial, undebatable, dirty war criminal hands that are responsible for these children dying is Hamas firing missiles. That is a war crime. They are firebombing Israel the way you complain that we firebombed Dresden. Where is your anger with them? have anger towards hamas i have anger

towards hamas where's your joke about hamas i have jokes will you tell me which to i mean first of all there's all just a plan of dan to get me in trouble with gnome so i lose spots so we can get more spots now because i like to have someone to argue with. But I'm saying, it's like, listen, my big beef in this whole conflict is with American Jews who, you know, who should with pride, and I take pride, take a magnifying glass to Israeli policies and the racism that we know and systemic racism that we know that the Arabs live with and every aspect of wanting Jews to live morally and upright. But this extending to a chapter where Hamas is firebombing, I don't get that you can't draw the line between, I don't like the way that Arabs are treated with maybe water rights

or whatever, one of these things, or their schools are not funded or racism and saying, and therefore I'm going to turn a blind eye to the fact that Hamas, that is dedicated to destruction, not just of Jews in Israel, Jews everywhere on planet earth, who calls us, whose rhetoric about Jewish people is no different than the rhetoric of the Nazis. The only thing is, this is 2021.

And Jews are looking the other way about this. There's plenty of Jewish nationalists. Jews are in bomb shelters. And your argument is that when we fire back to protect ourselves, if we kill, I mean, what? This is how we, what do we do this every 100 years and then find ourselves slaughtered again if we can't stand up for ourselves on something

like this why don't we just why don't we just put our heads on the chopping block let them kill us what when we can't defend ourselves when when when missiles are being fired at us i mean it's also what led up to all this. And it's also, there are Jewish nationalists who, plenty of Jewish nationalists who want Arabs off the face of the earth, or at least all Arabs kicked out of Israel. There's plenty of Jewish supremacy to go around.

I mean, that's not the official position, God forbid, of Israel, and it's certainly not the official position of any government. What are you doing? There is no Jew that wants not the official position of any government. What are you doing? There is no Jew that wants Arabs off the face of the earth. The worst Jew. That's what I just said. You say not the official position. It's not the unofficial position. The worst position that we

have to shame us is the Qahana's position, which was expulsion. That is the worst position. Expulsion has already happened in every Arab country of every Jew. Most of these countries have zero Jews. Some of them have 10 or a dozen in communities that had tens and hundreds of thousands of Jews. But the worst, most shameful position is the Qahana's position, which advocated expulsion. And by the way, Qahana was banned from the Knesset because he was called a racist. So what are you talking about when you say there's plenty of Jews

that want to annihilate the Arabs off the face of the earth? Israel could annihilate the Arabs, all the Palestinians, if it wanted to do tomorrow, if that's really what you thought. And all the Jews on planet Earth, there may be some that do take that position. You certainly can't. I mean, from growing up where I grew up in the Jewish people, I know in the Zionist, I know, I don't know if it's, I don't know what, you know, off the face of the earth,

but I know plenty of Jews with a lot of bigotry towards Arabs. I said that a lot of bigotry. Yeah. Bigotry on one side and, and genocide. Right now, what are you talking about? You're also conflating Hammas with the palestinian people not all the palestinian people want the news to be kicked out no as a matter of fact i think you're conflating the hamas with the palestinian people because you're the one refusing to to blame hamas i blame hamas i blame both sides i think they're both no no No, no, no. Yes. You blame both sides for the missiles coming into Israel?

I blame both sides for the whole threat. Yeah, I definitely blame both sides for that. I mean, you don't think Israel does the police riots. Don't complain about Dresden then. What do you mean? What's your position on the atom bomb? I mean, I took you to be a guy that thinks it's never okay to target civilians.

I mean, the atomic bomb situation is another situation where people can argue back and forth and some people can be like, well, a million more American soldiers would have died, so it's worth it. And then someone else can say, we don't think that.

So it's kind of the same situation. I happen to think Japan was trying to surrender. There's a lot of information saying they were going to surrender, that we should not have dropped the atom bomb. But yes, I don't think we should have dropped the atom bomb. I'm just stunned. I'm just stunned, but all right.

I mean, I'm stunned. It's painful to me. It's actually painful to me to hear somebody of Israeli heritage, but it's painful to me to hear even some, you know, someone who's not Jewish or Palestinian say such a thing. But it does, I can't lie,

it's more painful to me to hear somebody Jewish, somebody Jewish so casual, so casual about missiles being fired

with the intention of trying to kill as many civilians as possible and then saying we blame both sides i mean it's like that's what that's what uh people did at 9-11 people like well we blame both sides for 9-11 like anytime there's conflict you can blame both sides but i mean is Israel, I can find the territory. You're redefining war crimes. Usually war crimes don't extend the kind of courtesy that you are extending. Usually when one party aims missiles into civilian areas purposely as the targets, that's a crime against humanity.

I would like to- You want to redefine it now. I would like to, by the way, apologize to Ron and if he feels sandbagged, I thought- Teabagged, teabagged. Teabagged. Please know that

your spots will not be affected. I've known him for 20 years and the more he disagrees with you politically, probably the more spots you'll get. But certainly... I don't know how Esty... Let's make sure nobody tells Esty. That's all right. I was worried. I've been doing a bunch of Israeli

jokes. None of those... No, don't have to worry. Thank your lucky stars you work for a conservative because, honestly, because if you work for... At least this is not the way it was years ago. But right now, if you work for a conservative, you're much more likely to have somebody who says, I don't care what you say, say whatever you want.

I don't care what you say, but that doesn't mean I don't want to, I can't argue with you. Okay, Misty. Misty Howard, let me do, because I don't get as much time, airtime as I used to. Once Noam gets on a roll, he stays on that roll.

Why are you pointing to that? It's so upsetting. I said Misty. You know why I said Misty Harris? Because my pediatrician had a daughter, Missy Harris. This is going back quite a few years, needless to say. Her mic is muted. Misty, your mic is muted.

Okay, go ahead, Dan. Misty, as in play Misty for me, or Misty Mountain Hop if you're a Zeppelin fan. Misty Harris is a trial attorney. Both Noam and I have law degrees. Neither of us are practicing lawyers. She specializes in the defense of clients in entertainment, sports, employment, civil rights, and sex. It's all the cases. Well, that's really running the gamut, I think. And she's an independent legal analyst on a variety of network TV shows. In any case, welcome Misty, not Missy, Misty Maris. Yes, thank you so much. I appreciate it.

You look like you're in your law office, unless that's some sort of a virtual background. No, this is the library at my office. I don't have this in my home. Do you still use books, or is the library at my office. I don't have this in my home. Do you still use books or is that just you? We do still have books, yes. We have a full library, anything you want to read. If you want to take a nap. Is Misty a Jewish name? It is not, it is not.

I am pretty Irish. Although my parents say they picked my name just out of a baby name book. I always get a lot of questions about where it came from. It's very random. They wanted me to have the alliteration. I named my kid Benjamin Flash Dwarman because I wanted him to have the initials BFD. But before we get into other stuff, are you up on Geneva Conventions

and rules of conflict and stuff like that? And you have anything to add on the legalities of Hamas firing missiles into Israel? Sex abuse and entertainment law. Although some might find... I have a lawyer. I have two. Can I bring in a lawyer on my side? Yes, please, please.

All right. We're going to zoom them in. Tell them we can bring lawyers to the debate. Misty, do you know anything do you know anything about that stuff that's really not my area of expertise with respect to international treaties although as you pointed out i run the gambit on quite a few other issues anyway no you invited misty i assume for a certain reason well she i i heard her commentary about the chauvin trial when it was going on but but then that issue seems to have calmed down now.

But you, and I wanted to get into a little debate about that at the time, but let's go back to it because it is today the anniversary or yesterday was the anniversary of George. Yeah, and actually the Chauvin trial is, there's a lot of issues coming up on the pike and significant issues and really complex legal issues and also a lot of new activity just in the past couple of weeks with respect to

some information that came out about a juror, with respect to a motion for a mistrial and potential hearings relating to that, a federal indictment of all four officers, and of course, the trial of Lane, King, and Tao, which has now been rescheduled to March 2022. So there's a lot of interplay going on between all of these issues. So let me tell you what my feeling about the Chauvin trial was, and you get into it. So one of the things I noticed, now that I'm 58 years old, I actually have, you know, great. But I actually have historical reference points. I can think of other trials. And one of the things that I've noticed in the Chauvin trial, more than any similar thing in my entire lifetime, is that there was no contrarian opinion out there all the time. So for instance, when during the OJ trial,

now we knew OJ was guilty. We knew it even before the trial started and he had, you know, decapitated. This was at least as horrendous or equally horrendous as to what Chauvin was accused of. And yet in between the courtroom sessions, you'd have experts on CNN poking holes in the prosecution's case, saying, well, this was weak. Nobody would accuse him of being sympathetic to OJ or sympathetic to murder or whatever it is, but just on strictly like, what about this?

What about that? Maybe that's weak. I mean, if there was video of OJ cutting off her head, it might've gone a little differently. No, no, I don't understand what you're saying, but I don't think that's what I'm... So for instance, KSM is another one. When KSM, Khalid Sheikh Mohammed,

who was the 9-11 terrorist, when it was talking about trying him, the ACLU was very, very vocal about the flaws in the arguments against him and whether she better stop like that. And it is true that from time to time, people would accuse the ACLU of being sympathetic to terrorists.

But that kind of criticism came from kind of like the ignorant right-wingers. Enlightened people understood, no, the ACLU exists for civil liberties and civil liberties are most easily ignored when you have unpopular defendants. So when there was an unpopular defendant, that was normally when liberals kicked into high gear.

And that didn't happen with the Chauvin trial. So you have any comment about all that? Because that bothered me. I hate to break it to you because I know you said you wanted to debate me about something, but I very much agree with you. I think a lot of the coverage on many networks ignored all of the defense points of view. Now, just so you know a little bit more about me since it's the first time, and by the way,

I'm honored to be on your show. I'm really excited to be here. I'm a big fan. So I thank you. We treat you way nicer than we treat a Ron Non. Go ahead. You're a fan of the show or a fan of the Comedy Cellar? I love the Comedy Cellar, and I've listened to a bunch of your shows.

I heard Andrew Yang on your podcast. I think you guys do an excellent job of showing a lot of different viewpoints, and I love the show. And I love the Comedy Cellar. I like to go to the – is it the Olive Branch upstairs? Olive Tree, Olive Tree. Olive Tree, Olive Tree. I can extend an Olive Branch.

Extend an Olive Branch, yes, exactly. But in any event, I do agree. I think that there was very one-sided coverage of the trial. And just so you know a little bit more about me, I'm a defense lawyer. So I truly believe that I don't care if you're an unpopular person. I don't care if everybody hates you.

Everybody is entitled to a defense and that's a cornerstone of our legal system. So I'm not sure how, if you'd watched a lot of the coverage on HLN. It sounds like you've watched a decent amount. No, I only saw one interview with you, only one. Cool. Got it. Got it. So HLN is CNN's sister station, and we watched the trial gavel to gavel. And I will say, just not to promote, because I love the network, but there were opposing viewpoints on that network. I'm not sure it got as much attention as some of the other networks, but some of these stuff

I heard coming out of media coverage. And I'm not going to identify people because I work with all these people on various networks, but something to the effect of, oh, I can't believe the defense opened his closing argument by saying that the prosecution has to prove their case, that just means Chauvin's guilty. I was appalled. I was appalled. That came from a formal federal prosecutor. I mean, there are certain aspects of criminal trials, which are just the basics. And the first is the presumption of innocence and the fact that it's the prosecution's burden to prove its case beyond a reasonable doubt. So to say that I just, it's simply not correct. And I don't think any attorney can really with a straight face say that that is a correct notion. Now, I think during the trial, look, I watched it every single day. I watched every moment of it. I thought there were moments

where the prosecution did a really great job. I thought there were moments where the prosecution's case wasn't so good and the defense could have really taken advantage of those moments. I thought some of the defense experts were really bad for the defense, unfortunately, for the defendant in that situation because they really had some good stuff with respect to the prosecution's experts they could have capitalized on and that was really a problem. And I say that, and please don't get me wrong, I'm not saying that he should be innocent or guilty. I respect a jury verdict. I think there was plenty of evidence to convict him. It's up to the jury, just so all the listeners understand. The jurors hear all the evidence and they weigh what they believe to be the most influential, most important, what testimony

they choose to believe, what testimony they choose not to believe. But I certainly don't think that it was a situation where the defense had no arguments, throw up your hands and leave. There were a lot of defense arguments with respect to use of force and some of the medical testimony, which was extremely complicated, that I think could have resulted in a different situation. I wouldn't have been shocked by a hung jury. Can I ask a question about the case? Of course.

They, I was reading about it and said when they brought up the possibility of him, of the judge instructed the prosecution, if they brought up once again, this possibility of the carbon monoxide or the fuel that it could go into a mistrial. And I didn't understand what that was, what that was in reference to how that would go into a mistrial. Yeah. So towards the end of the trial, the prosecution actually brought out a,

basically a document talking about carbon dioxide and the carbon dioxide in George Floyd's lungs at the time. And it was something that had not been disclosed. From the exhaust pipe of the car. Yes, from the exhaust pipe. And it had not been disclosed in advance to the defense. So essentially what the judge did was narrow the questions that the prosecution could ask to the witness on the stand, who was Dr. Tobin at the time, which was recalled in the prosecution's rebuttal case. So the judge said, you can ask him about this despite the fact that defense did not have it in advance, but you can only ask this narrow, narrow, narrow pool of questions. And if you toe that line,

there's going to be a mistrial. So it was a very serious admonishment by the judge that was done behind the scenes. And I know everybody on here knows this, you know, we cover cases in the media, but it's not really like Law & Order or whatever legal show that you want to think of. There's not these aha moments where somebody slaps a document or puts a witness on the stand

that nobody's heard of that wins the case. You know, everything is disclosed in advance. And in fact, there's discovery rules which take away that element of surprise and are supposed to level the playing field so that's why you heard that issue and that's why it was such a serious actually can't have those aha moments yeah you're if you have an aha moment that would be a mistake their job aha moments are frowned upon look i thought i thought nelson is that was that the guy's name nelson yes i thought he was just awful.

I know you, just awful. And I'm going to tell you why. You tell me what I'm missing. So as I watched the expert testimony, there was Tobin, who basically, and please correct me if I'm wrong, because I didn't watch it that carefully, but I think I'm right, although it's something that I might

just be remembering along already. Tobin essentially said, this hold would have killed anybody, even an able-bodied person. It had nothing to do with all his pre-existing conditions. It had nothing to do with anything. You could have put Arnold Schwarzenegger under there with that kind of pressure calculated to the tenth of a pound. That would have killed anybody. And then it was a guy- Arnold Schwarzenegger, 70-year-old Arnold Schwarzenegger.

And then in the middle there was an expert I forget his name which essentially said that well no this is positional asphyxia and um you know given the fact he had all these health conditions blah blah blah um this killed him and then then you had uh the guy um what's the name of the actual person who did the autopsy? Oh, yes. Yeah, Dr. Baker. Baker. Baker said, no, actually, this wasn't positional asphyxia at all. This was just all the stress of the situation and all his pre-existing conditions. And he finally just gave out. So in my mind, what you have there is three different experts, none of whom have the same opinion quite of why he died. And by the way, the first expert and the last expert have mutually exclusive opinions. And normally,

when you have three experts who can't agree on one thing, yes, they all agreed that Chauvin was responsible. But that's not enough, in my opinion. They all have to speak with one voice as to how it killed him, because there's a fourth option here, which is he had a lethal dose of fentanyl in him. And if Nelson had the balls to say to Baker, you say that there was a lethal dose of fentanyl, that you've seen people die of this amount of fentanyl in the past, and that if you had found him alone with nothing else to go on, you would have thought he just died of fentanyl. How do you know he didn't die of fentanyl overdose?

How do you know? And Baker would have to say, well, I just think it's unlikely. And they say, well, unlikely is not a reasonable doubt. You have to prove that he did die of this. You have to prove that you know that he didn't die of fentanyl overdose. Otherwise, that's what we call reasonable doubt. And by the way, there was a guy in the car with Chauvin, with Floyd. Maurice Hall.

Maurice Hall, who might know about his, whether he built up a tolerance, whether this was more offendable than he'd ever taken before in his life, where he took this amount every day. And the prosecution refused to give him immunity to testify. So ladies and gentlemen of the jury, what do you think? If he had something to say that was going to be good for the prosecution, don't you think they would have given him immunity to testify?

Why do you think they didn't give him immunity to testify? Well, it stands to reason they didn't give it to him because this guy was going to say something that might help Chauvin. So, and like you put all that together, he didn't make any of those arguments. Yeah. So, yeah. And that was very compelling and I'm clapping.

I'm right, no. I don't say the guy's innocent. I don't know. I don't think. No, no. no i mean it's a reasonable standard well the job of a defense attorney is to raise reasonable doubt right to poke holes in the prosecution's case and to identify the issues that would stick in the jury's mind and they would say look i don't think i can convict on every element of this time beyond a reasonable doubt it is stupid for people to attack the defense attorney because everyone does.

Well, I think the problem is, yeah, it's really easy to look back and do the, you know, Monday morning quarterbacking and saying that somebody should have done X, Y, Z. A couple of points just based on the actual trial. There were some limitations to what Nelson could ask, and that happened in out-of-court proceedings before the judge where what content could actually come out in front of the jury in these ex parte, meaning outside of the, just with the judge and not with the jury, what they could actually talk about with each witness, what questions could be asked in the parameters of what was going to come into the courtroom.

I agree. I think the point should have been made with Dr. Baker very strongly that it is extraordinarily rare for prosecutors to distance themselves from their medical examiner. That's the person for the state that conducts the original medical examination. And they were really kind of like, I guess we have to put this guy on the stand because we need the autopsy report, but it's bad for the case. So they tried to overshadow it with a lot of other experts. Dr. Tobin, I thought was really, really compelling. Personally, as I watched him, I'm like, wow, he's matching up the pictures with, you know, matching up the video with all of these moments and explaining the medicine. And I'm really

understanding it. But to me, I thought, well, this is strange. I think the prosecution is boxing themselves into this narrative where nothing else mattered, but being in a prone position. And I actually thought that would be to the detriment of the prosecution. And I reported on that because it just isn't consistent with some of the other facts. All of that being said, just quickly, and then I'm happy to hear what anybody thinks. This is the problem with cases that are really hinging on expert testimony,

and it's what we call battle of the experts. And it's that a lot of experts are going to come out with differing opinions, and they're going to tend to cancel each other out in some way. And a juror is going to latch on to one expert or another, and as a defense attorney, you kind of hope that somebody has the same opinion that you do, that this doesn't make sense with this expert and that expert, and then you end up with either a hung jury or you end up with somebody who's a holdout on the medical causation,

which was a primary issue in this case. But it seems like a lot of the jurors, and this is just from some of the post-trial interviews, they really, really decided Dr. Tobin. They felt that his testimony was the most credible. And again, that's really a big factor in a jury trial, that a battle of the experts is a really, it's a tough case. But it doesn't come down to, in the jury's mind, just a gut feeling.

Well, I mean, it seems like it'd be a bit of a coincidence to have a foot on someone, him saying, I can't breathe. And then that guy dies of an OD when you're watching this thing happen. That's kind of a pretty big coincidence. First of all, I'm so happy you said it because my next point is going to be, the whole case is based on coincidence, right? But two things. You know the case of Sicknick,

the officer who died after the January 6th riot, insurrection, whatever you call it? Yeah. So he was, first they said he got hit with a fire extinguisher, then they said they got hit with his bear poison or pepper spray, whatever it was. And everybody was sure he died as a result of this.

And lo and behold, they find out there's a medical examiner report. And it says, no, he died of natural causes. He died of natural causes the day after getting all this violence on January 6th. That's a hell of a coincidence. And you know what? They were ready to convict somebody for that murder, if not for the fact that a doctor was ready to say, no, no, it actually was natural causes. Now that's a coincidence, but you know what's not really that much of a coincidence if you think about it? Dying an hour after you take a lethal dose of fentanyl. Wherever you are, after you take a lethal dose of a drug, that's where you're going to die.

That's not. And if and if you happen to be under someone's knee, it's a coincidence that you're under someone's knee. But the dying, the stress of being some under someone's knee plus the fentanyl. But compared to the sickness thing, I mean, that was weighed on me. It's like, well, holy shit. This Sicknick coincidence is huge. But that's what happens when you don't prove somebody did something. Right. I mean, when you have a foot on someone

and they say they can't breathe and he doesn't put the foot off that entire time. Well, except that. Except that. It does feel like murder. Oh, no, because... Wait, wait, Misty, I'm sorry. No, because what we know now,

which we didn't know earlier, was that he was saying I can't breathe as soon as they came upon him. When he was in the back of the car, he was saying I can't breathe. When they tried to get him to sit down in the car, he was saying I can't breathe. And he probably was having trouble breathing. But that could have been, that is not inconsistent with drug overdose, right? He made it really hard to breathe. Maybe, yes, maybe not.

Multiple autopsies that are fixations. Let me see, let me see. No, I think that just, and everybody's points are very valid, and this is actually a very good showing

of what goes on in the jury room, right? And this is what generally does go on with juries, is that there is this debate about these facts and how they apply to the law. But in this particular case-

Is there really? Is there really? In this case, there was only 10 hours of deliberation, but I'm saying in general, that's what you usually see that there are jurors that have different opinions about the facts and whether or not that applies, how that applies to the elements of the case and how that applies to the law. What I want to make the point about, and this is a surely legal point, outside of just, everybody's seen the video. The video is horrible. The video really carried the day, I think, for the jurors. And that was my opinion on the end result. And I understand why it was difficult

to watch that day in and day out. Absolutely, it's terrible. But one of the critical elements in any criminal case is the jury instructions. What do the jury instructions say? Because that is the roadmap that the jury has when they go into the room and they talk about the facts and how it applies to the law and whether the prosecution fulfilled its burden. And in this case, the jury instruction said that Chauvin has to be what's called a substantial factor. He doesn't have to be the only factor. And that's the way these particular jury instructions were written. Now, Eric Nelson had lobbied for jury instructions, which included an instruction about superseding cause, meaning that something else comes up in between whatever the act is and the death, and that's the cause

of what happened. Now, the instruction ended up being a little bit more pro-prosecution. And I think that makes a huge difference because again, these are complicated legal concepts that are being diluted into, here's the elements and here's how you apply the law. And that substantial factor causation really left a window open to say, even if there might be all of these other competing factors, if you believe that this was a substantial factor in George Floyd's death, then you can convict with respect to causation, which applied to all three charges. I got to go. I'm convinced by that, but I got to go.

Wait, okay. If you go now, I'm really going to talk about you. Go ahead, Dan. I'm going to rush. Thank you all. It was a fun conversation. I appreciate it. Bye. Nice to meet you. Over the screen. You get extra spots this week, Ronan. Go ahead.

We used to pay our podcast guests, by the way. We stopped doing that. Go ahead, Dan. Well, they're paying and having such a good time. Conversation. Come in and find us and eat and drink. Go ahead, Dan. How would you, do you think that a trial by jury is the best way to render a fair and correct decision? If you had to design a system, would it be a jury trial?

How really good are these? I mean, it's not 12 Angry Men, generally speaking. What goes on in these jury rooms? Great point. I mean, I'm not in the jury room, but as practicing lawyers, what we try and do is talk to juries after verdicts, and you get a sense of what people gravitate towards, what they care about, and I'd say it's very unpredictable. Look, I personally, I believe in the system. And I think that we have to, there are certain cornerstones. Like I said, the prosecution has to prove their case beyond a reasonable doubt in the presumption of innocence. I believe that you get 12 people who can go in and can be impartial and can make a determination. I cannot think of a better way.

I truly do believe in the system. I'm not saying that that means it's without flaws, right? Because there there's always going to be there's never going to be something that's perfect but when you're talking about somebody's liberty um you know i it's there has to be a system in place that there's nothing left to one person to decide but other countries do have us have like where one person decides right sometimes it Sometimes there's a judge trial. You can have a bench trial, but that's something you could elect to do. Do you think the results are better that way or with the jury? I think it's a very strategic choice and it depends on the facts.

And that's always going to be the case because look, there's certain, there's discrete legal issues that you might say this is better left to the judge. Now I'll give you an example. In the Chauvin trial, the aggravating factors. there's discreet legal issues that you might say this is better left to the judge. Now, I'll give you an example. In the Chauvin trial, the aggravating factors. So after Chauvin was convicted, the prosecution made a motion for what's called aggravating factors, meaning that Chauvin could get a higher sentence than what is in the sentencing guidelines. Chauvin could have had a jury decide on that, but instead elected the judge. And I think that was probably the right move because even though it was ultimately not

successful for him, they are discrete legal issues and you might get a judge who can detach from the facts and have a less sympathetic view. But in general, a jury trial is going to be a better case for the defendant because think about all the different outcomes. A hung jury, you can have a conviction on one charge as opposed to the lesser charge as opposed to the highest charge. There's many, and you can have an acquittal. And so I do, again, I just, I truly believe in the system and I believe in the system being fair. And that's what part of the problem that I had with this trial is that I do think there's some judicial error that could call the jury verdict into question that happened throughout the trial on appeal. And look, and I also, my other issue,

and I'm not saying I think the result was wrong. I just do not think outside influences, you know, public opinion should ever, ever have an impact on a jury. And I think to say so is really reckless. Misty, Misty. Sorry, I'm

off my soapbox. No, no, there's a lot there. And by the way, but one thing I noticed, and I talked to a lot of smart people, and one thing I've noticed that they have trouble getting or internalizing, not because it's a high IQ concept, but for whatever emotional reason, is the notion that the state has to prove it,

as opposed to it was a coincidence. And this is happening over and over again. And the other point that people seem to have trouble with is that it doesn't matter whether he's guilty or not. The point is to have a fair trial. And it's very, very hard for people to process that I might say, listen, I'm not saying whether he's guilty or not. That's not my even actually what I'm concerned about. I'm concerned that there's a lot of things about this trial that don't seem on the, don't seem proper. And so leaving that, let me go, go through them. But, but just one of the things I wanted to, when you said battle the experts,

what I think was unique about this and whether, whether defense dropped the ball was that usually it's experts on opposite sides. But I think that they really should have hammered home that the prosecution had experts with mutually exclusive opinions. And that, I think, is devastating to the idea of beyond a reasonable doubt. If you, if the prosecution with all its resources can't find two experts that have the same conclusion about what happened, if every one of them shades differently, I mean, if you go to three different doctors and you get three different opinions, all of them say you're sick, all of them, but you know, all one person says it's this, one person says that, you're not going to have, you couldn't possibly say that any one of those doctors convinced you beyond a reasonable doubt.

That's just not what, if they all said the same thing, you say, I'm convinced. So that's it. I think you make a good point. And I will say just very, very quickly and then on to the next. And many times if you talk to jurors, you'll hear them say that the most influential part of the trial to them from a defense perspective is that closing argument. Where those types of points are made and hammered home. And he didn't hammer the size, the information, you know, over the course of weeks and weeks. And he spoke way too long. He literally shouldn't have spoke more than 45 minutes, but let's go through the issues. And I think I've noticed from the dawn of the

internet age, the dawn of social media age is that people, and it's been said over and over again, people don't change their minds. We've seen said over and over again, people don't change their minds. We've seen it over and over again. No matter what you say, what arguments you make, people stick to their own positions. I mean, that's something that's, you know, that we see on social media all the time. Jurors are no different. If you're going in there with a chauvin is guilty mindset and everybody of course was aware of this case i mean is there any way to sway people and is it you know well so that's why there's such a extensive war deer process because the idea is that in a case

like this there's not a place on the planet that you haven't heard of this case, right? I mean, this is the most high profile case. So you're not going to have people who say, oh, Derek Chauvin, who's that? Who's George Floyd? No, that's not realistic. But the reason you go through the juror questionnaires, the reason that you go through the voir dire process, that you have the extensive questioning, is that you hope to find jurors who, even though they might know about the case, they can be impartial and put whatever they know or have learned aside and be fair and focus on what comes out in the courtroom. I'm not saying it's easy, and I'm not saying any attorney is such an amazing mind reader to know that you actually get those fair and impartial

people who can truly put their preconceived notions aside and really focus on what happens because the only thing that matters is in that room. Can anybody, I mean, Jonathan Haidt, who was a guest on our show a couple years ago, wrote a book about how just basically most people just don't change their minds once. And so the question is, is really anybody,

is it even possible? No. How about Lacey Anthony? You know what I mean? Like the most hated, one of the most hated people at the time that her trial was going on. And I don't know, you know, whatever. I can't pretend to get into the minds of jurors. But I do think that oftentimes when you go into the courtroom, or I will say when I

watch a trial and I try and approach it impartially, and I actually try and put aside the fact that I'm a defense lawyer, so I look for certain things, you're surprised at what you hear when the actual evidence comes out, as opposed to what you might hear or read in an article or see on TV. So my point is, I think it's possible. And I think that you do your best to get a fair and impartial jury who can put aside any of those preconceived notions to focus on the true task. And I do think most jurors, and I can't speak for everybody, because obviously there's always an outlier, most jurors do take their duty seriously and want to dispense justice, whatever that might be.

Let's go through the issues that I find troubling. First is, I think the idea of substantial, what's the wording of the statute? It has to be a substantial cause? Yes, substantial factor. All right. I find that on his face to be a constitutionally unconstitutional standard, vague. Nobody can tell me what it means of 12 jurors would have 12 different ideas of what the word substantial means. It's a, it's a, it's a word without a

definition. It could be 50%, less than 50%, 10%, 90%. And, um, it's's, how do you prove something that you can't define? Why, how can you put somebody, how can you get the death penalty on somebody for an adjective like substantial? Well, and that's part of, there's been a lot of arguments about this, just with respect to even the terms beyond a reasonable doubt that no one can really truly define what it means.

It doesn't, and you'll hear a judge say, it doesn't mean no doubt it, you know? And so, yes, it's true. Some of these terms are very vague. And oftentimes what a trial attorney will tell you is that the word you define the word the best you can based on the statutory language. And that's, what's going to be in those jury instructions. And that's not made up. That's something that comes from the statutes but what it ultimately ends up meaning is whatever those 12 jurors if they come to a consensus want it to mean or think i don't like it should be but

for i don't see i can't but for i understand if it hadn't happened he wouldn't be dead i don't understand a substantial thing anything could be substantial but four could just be you know you you you said hello to him and he looked that towards you and got hit by a car that's a but four but you can't say that somebody's uh uh i'm not i'm not so i'm not i'm not i'm saying that i i understand what but four means yes it could mean that yeah i understand that but i don't understand what a substantial factor means in the sense of someone's guilty or not guilty. Anyway, that's the first thing. Second thing is, how could they, if this was not an example of a case where a change of venue was appropriate and a case where sequestration of a jury was appropriate, can you give me an example of a case where those concepts belong? I actually can't. I think this was the prime example of a case where those concepts belong. I actually can't. I think this was the prime

example of a case where sequestration or change of venue was appropriate, and I'll tell you why. And I think that there were several opportunities for Judge Cahill to correct what might have been wrong from the beginning. Because first of all, if you recall, obviously a change of venue was asked for right at the very beginning, right? The judge said no. The arguments made that there's publicity and you're not ever going to get away with from publicity, but there's a second piece to that argument. That's one factor. And that might be true. You're not going to be in a place where there isn't publicity regarding this case. But the other factor is that the jury pool is going to be directly affected by the outcome of this trial and that there could be fear and trepidation to not conform to what public opinion is.

To me, that is the most egregious and prejudicial factor because you want to have a jury that's going to go in there, listen to the evidence, and make a determination based on that evidence. So strike one for the judge on that factor, which I think is going to be pretty prevalent in an appeal. Well, then you also have, oh, I'm sorry, go ahead. But anywhere in America, the jury might face, you know, prejudice if they didn't convict. And you make a good point, but the argument is that this is, first of all, the epicenter of where there was a lot of upheaval after George Floyd died, protests that turned violent, that this would directly impact the jurors' businesses, you know, friends, family, and that they simply wouldn't, would not want to go against public opinion. The other piece is that outside the courtroom every day, the jurors are walking through George Floyd Square, which it's fine to have a memorial like that, understandable, and then that's up to the public. But if you change the venue and move it to somewhere where you're not in the epicenter, you're not in the city, then you might have a better shot. And I

don't mean that there couldn't be problems there too, but that would have been step one. Well, there could be problems, but it's less. It might be less so. I always felt my whole life that the defendant should get the benefit of the doubt. So we can't be a hundred percent sure by changing the venue, we solve all these problems, but why not change the venue when we know for sure that these problems are going to exist in Minneapolis? And by the way, the jurors' names are going to become public. People are there, their friends live in the same town that might be the victim of destruction. Should there be rioting or whatever it is, that's less likely removed from the city or that city. I mean, all you have to do is put yourself

in the position of the defendant and say, would I think it's really fair for them to try me with a bunch of jurors whose names are going to come public? And I can't separate it in my mind, maybe I should, from the idea of sequestration, because you have a judge there who's going through this performative thing of what evidence can come in and what evidence can come out, shouldn't come in, and what evidence is prejudicial. And then the jurors go home and

they read it all online. Right. And look, they're not supposed to, but you can't, you know, the argument now is that you can't, you say don't watch TV, but you can't look at your phone without something popping up and giving you the news. This is the point I was going to make. Sequestering juries was a concept that came out of the forties and fifties. Right. When, when I think, I think it's that when it was hard to get information,

you would think in the modern age, we'd have a hundred times more juries sequestered because, because of the internet, because of social media. I agree. And I think that, you know, first of all, the change of venue, the second issue is not adjourning the case when a $27 million landmark settlement came out during jury selection, huge problem. Then not to sequester the jury when Dante Wright occurred. There were significant issues in that city kind of foreshadowing what could happen at the end of this trial. There was obviously the comments by Maxine Waters.

You know, there's a whole host of issues there. And really that all boils down to what's called judicial error. And that's going to be a big factor on appeal. And even cahill with respect to maxine waters said hey you might have an appellate issue was for the first time pretty salty about the fact that you had a politician making these statements that there is a right answer i mean it's kind of mind-blowing to me uh there's a right answer there's only one right, and it's to convict on all the charges when the jury's not sequestered. Look, all of that, I think, is really good. There are great appellate arguments. And then there's another piece to the appellate arguments, which is

that these issues are cumulative, that any one of these issues might not stand alone and be enough, but all of these issues together may actually be an appealable issue. And I will say, you know, no judge wants this. Everybody wants a jury verdict to be a fair verdict. Nobody wants a verdict to be overturned. Because you want to go in there with that fair trial and that you've got a jury pool that's fair and impartial and that that verdict is going to be preserved.

The idea of appellate court is not to second guess a jury verdict so here's here's another thing and we'll get right out of time soon but i did some research into this apparently this felony murder rule in minnesota which um very rare which is very rare which does because it doesn't it doesn't have a merger doctrine where um right, no independent felony. Where an assault is not, in most progressive areas, this would not be a felony murder charge because if it's an assault, it can't become part of a felony murder.

And this is typical of what I was saying in the beginning. And civil liberties groups and progressive lawyers have always thought that this was uncivilized that we had such laws. And yet you saw people who spent their whole careers being disgusted by this type of felony murder law, cheering or just neglecting to mention that their entire career they had thought this was an unjust law. And now they're saying, oh yeah, good for him, you know? Yeah. I mean, look, I think that the law in Minnesota, it's so unique and it doesn't make sense to me because what murder isn't a felony murder if assault can serve as the underlying felony? And every murder is a felony murder, right?

So usually it would be the prime example is you rob a gas station. Somebody gets killed in the process. The underlying felony is the robbery. And then it becomes a felony murder. That's typical. No, this is a very unique, very, very unique law. Minnesota, which I learned, which I'm not an expert in Minnesota law by any means, but there's a couple of rules in Minnesota that I would say are very unique to that jurisdiction.

And let me add to the people listening, because I know that this kind of conversation gets mad, especially when lawyers have them. We might be oblivious because we did this in law school. But if you could just make the analogy in your mind to the exclusionary rule that everybody knows about, where like if evidence is gathered improperly, that evidence is thrown out. And quite often that leads to an innocent,

a guilty person going free. And we've all kind of learned to accept that because again, because the fairness of everything is supposed to be more important than the outcome. And that's really all we're saying here is that I don't think any of us thinks, certainly none of us thinks that Chauvin was innocent. And we're all probably close to thinking he was guilty beyond a reasonable doubt. But having said all that, these issues, if you imagine these same issues, like if it was the trial of the Central Park, the kids accused of the Central Park rape of the jogger in the 90s, people would understand these issues right away.

You mean there was somebody who saw the thing who wasn't given an immunity and they didn't, that might've said something to defend those kids and nobody, and they weren't allowed to testify. We'd be outraged at that, you know, and, and you can take every one of these issues and just imagine, imagine it through a case that you're sympathetic to. And every one of them would anger you. But it's not supposed to matter which way you feel about the case

because they're all supposed to be considered innocent. But that's very hard for people to internalize, correct? I agree with you. It can be a very difficult concept, and you tend to gravitate towards something you agree with as opposed to think about it critically from different perspectives. I think that's human nature. What do you say, Dan?

I was about to ask Misty if she's familiar with Ben Shapiro and whether or not she agrees with me that Noam is... Oh, stop with it. Listen, you're complimenting me by comparing Ben Shapiro? Not imperfect,

but certainly a lot more intelligent, logical, coherent than Ben Shapiro. Ben Shapiro is very, very smart. He's a prodigy. But Ben Shapiro is mean. Well, I don't know. If he's smart, he's not showing it with a lot of the stuff that he says. I agree with that. Maybe because he's biased.

You don't listen to Ben Shapiro, Perry. I listen to him. I've actually done Ben Shapiro show before. Um, a couple of times. He's a very, he's very,

very smart. He's very intelligent. And I will say that my experience has been, he is open to other, he, there, there's no world where he cuts you off or doesn't allow you to express your opinion.

Um, and so you can agree and reasonable minds can disagree on many things. Well, that's nice because I've listened to plenty of fucking bullshit and horrible things that he said that have been appalling, frankly. First of all, he talks like he calls Biden doddering and he talks about Nancy Pelosi's dentures and stuff like that. I don't like that kind of thing and and it's all things about gay people just disgusting things i've read that i don't know about that but um so so he can be mean second of all he made an argument the other day he went to my bench i don't miss you on some of my bench here never mind because she has a relationship with him he made he made an argument about race the other day that i that i found um

it's very very weak i'll mention i'll talk about it on next week's show. I don't want to put Missy on the spot. That's okay. Like I said, by no means do I, you know, I don't think there's anybody on the planet that I agree with everything they say. Um, I, I very much some other things for themselves, but. Well, he was making your opinions. He was making an argument about black people in America. And look, I'm pretty conservative on a lot of issues like that.

But he harped on the fact that black people were more successful and had a better standard of living in America than they do in any other country in the world. And I found that to be a very poor argument because black people have the right to expect to be treated the same as anybody in America. I mean, who gives a shit if black people are treated worse in some poor country or in Africa like that? Does that mean a black person is supposed to protest for his rights less vociferously because he's supposed to be appreciative of the fact that he could have been born in Africa? I found it to be a very tone deaf argument, not helpful at all.

And I was just surprised to hear it coming out of his mouth. And maybe it does betray a certain worldview, which is troubling of his. I don't know. There was something else he said too that was not coming to mind. But that sort of thing where he, an argument which if he, if it was coming the other direction,

he would have no problem seeing the flaws in it. From time to time, I hear it coming out of his mouth and it bothers me about him. There's so much room for reform in the world and everybody has, we got to work towards it. I agree with that.

I'm, you know, I'm part of a lot of diversity and inclusion committees. I'm a partner at a law firm. We're trying to all do our part. Yes. Well, I'm not trying to do my part. I'm just, I'm just doing jokes about it. So now, now I didn't know that I knew him. So fair. What do you think, what do you think the odds are of this case being overturned on appeal?

And how much do you think the worry about the public outcry will impact that? So, first of all, the first step is right now there's a motion for a mistrial, which goes before Judge Cahill. That's going to result in a hearing. And the root of that is there's eight reasons why the defense moved for a mistrial. And it's not unusual for the defense to move for a mistrial. There's not a case where they don't. All of the arguments that we just talked about, they were all set forth as well as some others. But the most problematic argument for the prosecution in this is juror number 52, Brandon Mitchell, and the fact that this photo came to light where Brandon Mitchell is wearing a Black Lives Matter shirt, and that it's at odds with his responses on a jury

questionnaire. Now, just to give everybody a little bit of context, we're seeing this issue play out also in the Scott Peterson case. Everybody probably remembers this case. It happened a very long time ago, the murder of Lacey Peterson and her unborn baby. This very same issue is on appeal right now, that a juror did not disclose pertinent information about a prior domestic violence offense on her jury questionnaire and the appeals court is sending it back to the trial judge for a hearing on whether or not it's going to result in a new trial I would say that this is pardon me a new trial for Scott Peterson possibly he's already getting a new penalty for the death penalty has been overturned that's insane that guy

should be tossed in the river and cut his head off. And Perry L I, and you say that, and you know what? Many agree, but this just shows how severe this issue with potential juror misconduct is that you can have a case like that. You know,

you can have a case with that type of evidence and that that verdict and that conviction can be vulnerable because of a juror not being honest on it. That doesn't mean he walks free. That means there's another trial. That means there's another trial. And here's the issue with Scott Peterson is there's a bunch of new evidence they're going to seek to admit if he does have a new trial. I mean, I followed that case so closely. I mean, that guy is just absolutely... Well, if that's the case, then he'll be convicted at a second trial. Maybe. You know, one thing I always say, and a federal judge said,

I can't take credit for it because a federal judge said this to me like 10 years ago when I was much more junior in my career. He said, a jury is an honest roulette wheel. That's what I will give you. You will select a jury, you will have the process will be honest, but at the end of the day, it's unpredictable. And that's really, that's what it is. And that's why no one wants these verdicts to be vulnerable because of these issues. Now, I have a whole thing about how did somebody not find this picture before jury selection?

I mean, right now, with the amount of information that's on the internet with about every individual, you know, the lawyer is not doing their due diligence if they're not fully vetting in these issues. Something like this isn't coming to light sooner. Politically speaking, though,

it's possible to throw to uh to throw away this verdict i just can't imagine so let me show everybody this is this is the picture this is the uh sorry this is the picture can you see it yes that's the the juror correct misty correct so now imagine you're on trial for your life and you find out that one of the jurors was wearing a t-shirt essentially about the fact that you were guilty before the trial ever started. That doesn't sound very American to me.

That sounds like the kind of thing people who complain about the justice system complain about. Well, but the true problem, and look that that picture might exist. And that jerk could have still been selected. The problem is with the responses on the jury questionnaire that are not accurate and not true. So if you're with eyes open, it's different, but it wasn't eyes. Right. So, so that's, that's where the problem, that's going to be the single strongest argument. Look, do I think that judge Cahill is going to grant a mistrial?

Personally, I do not. Do I think that these issues could be very, very novel issues in an appellate court? Yes, I do. And, you know, obviously the world is imperfect, but if the system works the way it should, an appellate court judges should not be considering the political consequences or the public fervor or any public opinion in making their determination. There's, you know, there's some lawyers who say that this case, if it goes up on appeal, and I'm not saying I necessarily agree, I've heard some experts say this, some people that I work with, could

potentially go up to the Supreme Court. Why do they say that? Because this issue of how we deal with publicity in a world where the law is always a little bit behind technology. This is something that we've been dealing with for a long time. My friends laugh at me because I'm walking around going to a dinner with like three, you know, wheelbags of documents like, oh, we still use paper in my field, but as an aside, but, you know, how is, how are courts going to deal with these issues? And do we need to establish some new rules in order to deal with these high, high, high publicity trials? I don't know if that's really going to happen. Bill Maher with the new rules. What's that? I say Bill Maher, the new rules. But in any case-

These are really serious. That is the one, to me, I think the issue that would be the most prevalent. And again, there's the argument that all of these issues together constitute what's called a cumulative effect, and that's why it could be a, it's an appellate. It could be an appellate case. That juror thing bothers me. I mean, look, the flip side of this, it's not actually a legal issue, but it is, it is worth saying that thank God for these body cameras and video cameras, because there is no way that this cop would have done anything,

but filled out a form and gone on with his life, if not for video cameras. And we can all imagine. You know what happened. I mean, look, there's no, you know, I talked about this during the trial. How often do you have so many cameras from so many different angles? We've got all the body cam videos. We've got the cameras across the street. I mean, there wasn't a doubt about what happened.

There's not going to be an argument about the actual incident that occurred the question is how does it how do the facts apply to the law that's a different issue but you're absolutely right there's no room to say oh that's not the way it happened no it is can you imagine how much abuse there was routinely not forget about murders just you know data you know beatings and and all all kinds of before people had cops had the reasonable expectation that it might be being filmed. I mean, really it's, it's changed. It's probably prevented more suffering than,

than any other change in law enforcement ever has. And we don't even realize it. You know, it's, so anyways, I'm, I mean, I don't know. I'm happy that he was arrested and I'm happy there's a trial. I just wish that, you know, that this trial didn't have these issues. And they are issues. I know this makes people mad, but they really are issues. And in any law school class, if this was a law school hypothetical final exam, every single student would have identified these issues without even, and considered it an easy exam. Like they're so blatant, if only you have the courage to say it out loud right yeah and and i i think that look i i'm i look at it from a sheerly legal perspective i'm human the video is traumatizing i think it's awful

um but i truly believe in every every person popular unpopular no matter who you are you're right to a fair trial and that that has to be preserved. Yeah. Yeah. That is a great way to end, I think. Misty, I think you put a nice little bow on this thing. And why don't we stop there? Because it has been an hour and a half. Oh, geez.

Well, not with you. No, because we were ranting and raving with Renan Hirshberg before you got here. Misty, I sent you some links in the chat. You see that? Yes, I do. Can you copy them and paste them into your own thing so you have them? Because I don't know.

These are, I don't even want to say, these are some scientific studies that I found. I don't know if you've seen these, but these are really disturbing, but I don't want to talk about them. Yeah, just copy the links so you have them. In any case, the Comedy Cellar, reopen it.

Do you have a vax card? I know that you do. Bring it on down starting June 1st. We will be at full capacity. Obviously, you got to make a reservation because we do sell out. And if you don't have a vaccine, then I guess you're not going to see shows at the Comedy Cellar. So if you're not vaxxed, that's another motivation to get vaxxed.

Podcast at ComedyCellar.com for comments, suggestions, queries, and constructive criticism. And I guess that is it. We thank Misty Maris for joining us. And I guess you can follow her on Twitter, I would imagine. Yep, Twitter and Instagram. Misty Maris Esquire. Misty Maris Esquire. E-S-Q or the full word?

E-S-Q. E-S-Q. Esquire. And Paralashian Brand, on my knees. Available on Amazon. And the only bush I trust is my own. and uh parallel action brand on my knees available on amazon and the only bush i trust is my own thank you everybody we will see you next time nice to meet you misty nice to meet you too thank you so much come to new york you're not new york you're where i am a new yorker i'm right downtown you're also coming down to the club i'll come anytime

this weekend you know what i'm town. I would love to come. I'll email you tomorrow. Please do. Email me. I would love that. You look like such a Midwesterner. I assumed you were nowhere near New York. No, no, no.

I'm a New Yorker. Oh, fantastic. Oh, I can't wait. Okay. See you later. Bye. Okay. Bye.

Bye, everybody. Thank you.