The Dispatch Podcast - Sentencing Derek Chauvin

Episode Date: April 23, 2021

Now that Derek Chauvin has been found guilty of murder, what happens next? Sarah flies solo on today’s podcast in an interview with former United States Attorney in the Office for the Eastern District of Virginia Zach Terwilliger to talk about just that. Sarah and Zach break down all of the legal jargon you may hear about this case and explain what to watch out for next in Derek Chauvin’s sentencing. Plus, Zach offers some advice to all of the wannabe federal prosecutors out there. Show Notes: -Zach Terwilliger Bio Page -Judge in Chauvin case talking about Maxine Waters -Definitions of manslaughter and degrees of murder -Minnesota Supreme Court/Chauvin case explainer -Women’s hockey coach assault case -Advisory Opinions podcast -DOJ announcement on Minneapolis PD -5 Minutes with Michele Roberts Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Dispatch podcast. I'm your host, Sarah Isgir, and today I have a real treat for you. We are going to talk to Zach Terwilliger. He is the former U.S. Attorney for the Eastern District of Virginia and current partner at Vincent and Elkins, a very wonderful Texas firm. So obviously I'm a big fan just because of that, but also Zach and I work very closely together at the Department of Justice. And he's the person I wanted to talk to most when I was digesting what the Chauvin trial meant and what it means moving forward. Let's dive right in. Zach, we've had some questions from dispatch members trying to make sense of different parts of the case.

I just want to start sort of where things have left off. walk us through what you think the sentencing options are from here. Sure. Well, good morning. Thanks for having me, Sarah. It's great to be back collaborating with you. Yeah, so just diving right into the Chauvin trial, when we look at what's happened, obviously there's been a finding of guilt. So what happens next is sentencing. But in between, at least under the Minnesota system, it sounds like a couple of things happened based on the judge's instructions. One is that a PSI will be developed, and a PSI stands for pre-sentence investigation report. And so that report is really something that's going to look at the history and characteristics of the defendant. It's going to look at any aggravating or migrating factors surrounding the particular counts of conviction.

And ultimately, at least based on what I've been able to glean, that will result in a sentencing guidelines range. Some of your viewers, I'm sure listeners are very familiar with mandatory minimum. versus sentencing guidelines. I'm much more familiar with the federal system than the Minnesota state system, but they seem similar insofar as you have maximum punishments for each of these offenses, but then depending on the prior criminal history, your history and characteristics and aggravating and mitigating factors, you'll get a range. And one of the ranges that I've her discussed, even though the second degree unintentional murder charge carries a 40-year maximum punishment is 12 and a half years. And so that'll be, there'll be an interview process of the

defendant with his, with his attorney. And then ultimately, the prosecution will also get an opportunity to respond to the pre-the PSI, the pre-sentence investigation report. And then ultimately, there'll be a determination about the sentence. And so, as you've heard a lot of folks talk about who've covered the trial three counts second degree intentional murder 40 year max third degree murder 25 year max second degree manslaughter 10 year max and we've heard 12 and half years for the two murder counts and four years for the manslaughter count but I think it would be premature at this point because we got to see what's in the PSI conceivably there is no criminal history for a law enforcement officer because otherwise probably wouldn't have qualified

However, you may have things like abuse of a position of trust because you had an individual who was entrusted with deadly force and, you know, according to this verdict, misused it. How much does it matter to a sentencing judge that this is a national case versus what's in the PSI? Yeah, that's a fantastic question. I think the hope is, as those of us who are officers of the court, spent 14 years as an officer of the court on the prosecution side and now I'm a few months into my role as a defense counsel. One would hope that all of that stops at the doors to the courthouse. It's one of the reasons why you don't see televised trials in the federal system.

It's one of the reasons why certainly in certain places like the Eastern District of Virginia where I practiced, you're not even allowed to record or take pictures or even bring your cell phone into the courthouse because it needs to, the termination made about what someone did and an appropriate punishment should start and stop with the facts of this case. I think that would be a naive approach given that this has been televised, given the fact that this judge and all of the country and in some ways all of the world is looking what's going to happen as this case moves forward. I think human beings are inherently flawed individuals and it would be nearly

impossible not to allow some of that to affect you. My hope is for the judicial system that the pre-sentencing report is certainly fair and accurate, and I'm no reason to believe it wouldn't be, that both sides then get a chance to argue in open court for why they believe when enhancements and aggravators apply. And then that calculus, that rubric is applied to the particular facts of this case, which renders a guideline range. And then the judge would be in a position to explain why he plans to either impose a sentence below in the heartland or above the guidelines range based on the specific facts of this case. And frankly, that's probably where some of those tensions and stressors and the public spotlight could come in. But I do believe

the sentencing judge will be required to articulate his reasons for the sentence. But there's no question now that all of America got to hear, or who wanted to, got to hear and watch the closing arguments in this trial. I mean, it's, that adds a different element. So David and I have talked about potential issues on appeal on our other podcast advisory opinions, but I'm very curious if you saw anything that you thought, huh, that's going to definitely be an issue on appeal. That's a good question. You know, it's, I followed the trial. didn't follow each and every legal argument. I didn't follow each and every objection, which you and many of your listeners know, a lot of times you're objecting or filing motions,

even though you're going to lose to preserve the issue on appeal. So I don't want to opine on everything. You know, I feel like one of the things you may be getting at is the Maxine Water statement. You know, this was an incredibly high profile case. It wasn't as though the jury was sequestered the entire time. If it's anything like a federal court proceeding, the jurors were asked each morning, you know, did you read anything? Did you do anything? You know, that would have affected your ability to be fair and impartial. Have you done your own fact gathering? Did you visit, you know, the locus of the crime? You know, if it just comes down to politicians who have, you know, made statements, whether it be Maxine Waters, whether it be, you know, someone on the right or, you know,

even the president of the United States, you know, I certainly think it's going to be something that is appealed. Is that enough to change the outcome? All the individual jurors were pulled. And I, you know, the question goes along the line goes something like, you know, is this your true and fair verdict based on, you know, what you heard in court? And I think as long as the answer to that is yes, that that's a tough hill to climb. This also wasn't a situation where this was a small trial taking place in the backwater, and then someone very high profile came in and decided to opine. And so it's a little bit like, I mean, everyone was talking about this. And do I think comments made by elected officials as cases are, you know, being delivered to the juries?

Could I do? Absolutely not. Is it enough to say that this was an unfair trial? I think that is a steep hill to climb, and part of it will be, you know, what was the evidence that was presented and the evidence in this case, I mean, was incredibly strong and incredibly overwhelming as to factually what took place. I mean, we had a video that showed exactly what happened. So I'm sure it'll be raised and I would, you know, I don't know the makeup of the appellate courts in, in Minnesota, but I would assume it would be too steep of a hill to climb. thing that I do think is interesting that's come up is this whole issue of the third degree murder charge and you follow it I'm sure much closer than I have Sarah but where you know you have to

have be endangering others and so the based on another police incident that charge was pulled and then it was reinstated and I do think that that is an issue that be very interested to see what the Supreme Court in Minnesota does in terms of are you really endangering others because Because, you know, as a law student, that was sort of always, you know, the way we looked at the third-degree murder charge, are you doing something that's not just, you know, that's so reckless that you're, in fact, endangering others. So I think that'll be a very interesting thing to look at. But there, because he was found guilty on all counts, obviously that sort of negates the real sting behind that because you have the secondary murder charge with a higher maximum punishment, higher guidelines range. Yeah, I'm definitely following that Minnesota Supreme Court case. The question is whether others really means plural or if it just means it can be a single person as long as it's reckless and the word others doesn't really mean what the word

others means. Speaking of the charges, he was found guilty on three counts. As you mentioned, we got some questions from folks about why they found him guilty on all three rather than just if you find him guilty on the top one, you don't get to the other ones. And it gets into this question of if it's all the same incident, how are you able to try someone, or sorry, convict someone on multiple counts if it's all related to one incident? And so if you can just maybe explain lesser included offenses, related offenses, and how, why we saw a conviction on three counts from just one incident.

Sure. And so there, again, I'll have to put this through my federal prosecutor lens a little bit, but I think the, I think it absolutely translates. So you have both lesser included offenses where you charge something that is the most serious offense, and then within that, all the elements are met for a lesser included offense. An example may be, let's say you have a public corruption case and you're dealing with bribery. Well, bribery generally requires more of a quid pro quo versus a gratuity. And so if you can all the elements of bribery, chances are you've got the lesser included of gratuity. In this particular case, it's interesting. You have three separate charges, and while if you meet

the elements of second degree unintentional murder, there's a good chance that you can also meet the elements of second degree manslaughter. But let's just quickly walk through those because I do think it's interesting. So your second degree unintentional murder, it's what we call in the federal system where a lot of law professors would call felony murder. You basically didn't have the intent to kill someone. You had the intent to commit another felony. Here, it's assault. So did, you know, the defendant.

Which is also pretty controversial, by the way, because it's one thing when, like, your felony is bank robbery and then someone ends up dead. It's another when the felony is assault, already something violent that could lead to death, which is sort of a, if you will, lesser included of its own. And pretty controversial in a lot of jurisdictions. A lot of jurisdictions have gotten rid of.

of that type of felony murder? Sure. I mean, it's, you know, there was something I read online the other night where it's a developing story, but it sounds like there was a bar fight. There was a beloved women's hockey coach who got punched in the head, slipped, and hit, or excuse me, got punched in the face, slid down some steps and hit his head and has died. And so, you know, is that going to be a situation where the individual is charged with second degree murder because there was an assault, you know, ultimately resulting in death. So, you know,

when basically what the way it was always described to me by my law professors was, you're transferring intent. You had the felonious intent to hit, and it might not have been, it certainly wasn't a premedded desire to kill, but that gets transferred. And so you wind up with second degree unintentional murder. When you look at the third degree murder charge, it's a little bit different because that was the one that I always thought about in my mind in law school of driving 100 miles an hour in a school zone. I mean, you're perpetuating an act that's imminently dangerous to others, and you're doing so, it's so bad, it shows almost a depraved heart. And if you're driving 100 miles an hour in a school zone and the lights are flashing and you see kids crossing the street

and you don't slow down, is that really what we're talking about here. So, you know, is it a lesser included because it's third degree versus second degree? Yes, but the intent, at least the way I look at it, is different. You're acting extremely recklessly with wanton neglect for others. Whereas in that first degree, or excuse me, that second degree charge we're talking about, you had the intent to commit an offense. And then when you look at the second degree manslaughter, you basically have culpable negligence where you've created an unreasonable risk and you consciously take the chances of causing death or great bodily harm. So, gross negligence and recklessness. So they're not, in the traditional sense, it's not just, okay, count one has four

elements that are all met. Count two is the same. It just doesn't have malice of forethought. So I actually don't look at this as just a straight, lesser included. They are related offenses, and they are, they are offenses that have distinct elements from one another. And so it's not a typical for prosecutors to charge varying degrees. Like in this case, it's almost like a ladder from most serious to least serious. And it gives them the maximum flexibility. There's a danger there. And maybe we'll get in to talk about it. There's a danger in charging a case that way because it can be the jury to believe, well, you're not really sure what happened. And it gives the defense an opening if they wanted to to try and get a compromise verdict is, look, you know, what, what my defendant did or my client did was grossly

negligent, but it was not cruel and depraved. It was not an assault. This was, you know, subduing somebody. And so one of the things that I thought was interesting, based on the closing argument that I listened to, that the defendant's counsel really went for an acquittal across the board versus, okay, this is not going our way. There's videotape evidence. We've heard some of the most harrowing testimony on direct examination, you know, you could ever have in a trial, including from law enforcement officers. Let's see if we can wind up in a situation where you're just convicted on count three and you're looking at a guidelines range of four years versus these others. Yeah, you and I talked about this a little this week. And you said that

really surprised you. Why would defense pursue a strategy like that? The case wasn't going very well. there were two decisions that I thought were interesting. At the end of the defense's case, the defendant was asked whether he wanted to take the stand. He declined to take the stand. And then, as you said, they didn't try to get that compromise verdict. They went just for the straight not guilty when I think anyone sort of watching that trial thought, well, that's not going to happen at this point. Your own witnesses kind of fell apart. So walk through as a defense attorney now, what are you advising a client like that about whether to take the stand? What are the factors that go into that? And why would you go for the not guilty at that point if you think your

case is sort of fallen apart? Sure. And taking the first one, first. And maybe I should have said at the outset, Sarah, and maybe we'll get at this at the end. I mean, this is, I know we're talking about this in a very objective sense. And we're looking, we're dissecting this the way you would come in and look at certain elements. And I do just want to make sure your listeners know. I mean, this was a horrific crime in my mind. And I said so at the time as U.S. attorney. So I don't mean to be so objective about it now.

There's obviously a tremendous amount of appropriate emotion and larger issues at play here. So just let me get that out there. And then we can go back to dissecting the specific decisions. But I don't mean to be so removed from how important historically and nationally this case is. In terms of your first question, you know, the defendant testifying. So as a prosecutor, I always would hope the defendant would testify because it would really give me an opportunity to expose the falsity of their alibi, of their excuse. And, you know, when you're the prosecutor, you're holding so many of the cards. It's not necessarily that it's a game of gotcha because you've turned it all over in discovery. But you really have dug in and learned more about this incident. then even the participant is likely to know because you've gotten all the forensics, you've gotten cell phone data, you have the whole picture and you have so many tools in your arsenal. So I always would love it when a defendant would testify. So I think in general,

a lot of defense counsel will advise their client, like we're not going to be able to prepare for every question that you're going to get asked on cross-examination. And by opening the door and by waiving your Fifth Amendment right against self-incrimination, like, there's no going back. And so you've got to be very careful that you don't commit malpractice by putting your client on a stand. However, I do think the reason you see certain individuals testify is in two instances. One where you have someone whose defense is actual innocence, which is I wasn't there, it wasn't me, I didn't do it, or, you know, you have either the wrong person or there has been such a misapplication of the facts to what actually happened. The narrative is completely taken out of hand.

The other time you do it is where you've got to throw a Hail Mary. I mean, they use a sports analogy. You only use a Hail Mary and an on-side kick when you really don't have another choice. I don't want a Monday morning quarterback too much about the defense case. I wasn't there. I wasn't there during the prep. I have no idea about this now convicted murderers, mental stuff. stayed and how he would have come across.

One reason I thought it was interesting they didn't decide to put the defendant on the stand was because if things, at least as they appear to, I think, agree that the case was very strong for the prosecution is to humanize the defendant. I mean, here's an individual who wore a uniform and went to work every day and at least ostensibly, you know, it was charged to protect and serve. and so why not tell part of that story? Why not tell the story of, you know, the things that he had done correctly in his career? Why not make this an individual who, and this goes back to we talked about before, maybe he even admits on the stand what he did was reckless and unreasonable. But this is what was going through my head. I know it doesn't seem like a lot to you, but the people heckling me got me really scared. And I, and this exact moment was going through my head and is this going to ruin my career. Things like that. and that that would have humanized it. May have made the jury hate him more. I think he would have been subject to an absolutely decimating cross-examination where you go through frame by frame. What were you

thinking now, Officer Chauvin? What were you thinking? So at this point, when he's, you know, begging for his life and we actually watched the light expire from this man's eyes, what were you thinking? And so it may have been that was just too much of a risk, too decimating. It would have been, you know, to use my sports analogy, you know, an onside kick that, you know, had no hope of success. So I, you know, that one, I'm not sure the defense got wrong. It's easy to say in hindsight because it was a clear guilty verdicts across the way. For purposes of appeal, the record won't have his statements in there. And, you know, the goal on cross-examination is to basically confront the individual and get them to admit what they did.

wrong. So that may have been a theory there too. But sort of fascinating when you think about the, like what we're about to talk about, which is the strategy to go for a full acquittal rather than to just go for conviction on the lowest level charge to try to get them out of those two higher level charges. That's where taking the stand to me could have been very helpful. You take the stand and say, you know, to your point, yeah, it was reckless. Yeah, this meets the elements of manslaughter probably, but I had no intent. and trying to commit a felony, you know, I didn't have the necessary intent for that top one to try

to go for that compromise verdict. I mean, definitely a strategic decision. They did not go for the compromise verdict. They didn't. And one thing, as you were talking that I was just thinking about, I mean, the one advantage that an accused has in a case is they get to hear whatever other witness says. I mean, typically, and I apologize because I don't know the answer to this question, but witnesses are, there's the rule on witnesses, and only the witness testifying can be in the courtroom, maybe a case agent on the prosecution side. But the defendant has heard everything that has been put forth against it. And so typically what you see is notes being passed from the defendant to their counsel when there's direct examination, like that's not true or ask them about, you know, December 14th or ask them about this. And so one advantage you have as testifying as the defendant is you really can rebut a lot of what you've heard.

Like let's say the use of force expert said, you know, I specifically teach, you know, this element, this element, this element of the de-escalation protocol. Well, this would have been the time where you could hear directly from the defendant if there were any defense to that. And it may be that there wasn't any way to make hay out of that. And yeah, to your point, Sarah, absolutely, if you testify, and that would be your opportunity to come out very strongly through your direct examination that your lawyer leads you through and say, look, I did not, I cared for this, you know, individual. It was not my intent to assault him. It was not my intent to do this. Was now in hindsight, I reckless. Yes, but let me tell you, I completely lost track of time, those sorts of things. And obviously I'm saying this, not because I believe it's true. Those are just potential defenses. So, yeah, I think it's a tough call. Look, some of it may be client-driven.

I mean, as a defense counsel, you know, you represent a client. And the client may say, no. Strategically, I hear what you're saying, but I in my heart don't believe I did what they're accusing me of doing. So no, you are not authorized to go out there and try to go for a compromised verdict. It's not worth it to me. And we may never know, we probably will never know, what those privileged conversations were like. But I have seen plenty of defendants hamstring their defense counsel by saying, look, I understand that this may get me out of jail sooner than the opposite.

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I want to broaden the lens here and talk a little bit about what this case means in the broader context. This was a watershed moment in a lot of ways, a conviction against a police officer in a way that I think is fundamentally different than, for instance, the last major, and this was a plea deal, but you and I were both at the Department of Justice during the Slaker trial, where it was a hung jury at the state level in South Carolina. He pled out to the feds. This was an officer who pulled someone over. The person ran, and the officer shot him, several times in the back. It was caught on video. First of all, that trial wasn't nationalized the way that this one was.

In the end, it was a plea deal. So it was just a very different feel, I think, for the country. This feels like a turning point of sorts when it comes to prosecuting officers criminally for actions that they've taken in the field as a defense attorney and as a former federal prosecutor who worked with law enforcement every day. Do you think this has changed the game, and how do you think it will affect law enforcement moving forward? That's a really, it's so hard for me to separate myself out from this particular incident. And I think it'd be show a lot of hubris if I tried to articulate what this means going forward. So I think all I can do safely is say, these are my impress.

And I really want to caveat them because I certainly don't claim to be attuned to these issues in such a way. This has not been my life's work. I've been fortunate enough, I think, to hopefully play a role in some of the solution to this. But where I sit now as a private practitioner, I do believe that when you have a videotape, and I said this at the time, And when you have a videotape of an individual in uniform, kneeling on someone's neck in broad daylight versus one of these split-second incidents, like we're also seeing play out in the national media right now, whether they split-second decision, and at least based on what I've seen, someone's wielding a knife. And it's life or dead. You shoot and extinguish the threat, or perhaps someone gets stabbed, you know, in a vein or a heart and they die. I think that's a very different set of circumstances to what we saw.

I think one of the reasons this case has had an outsized influences because even those of us who have worked day in and day out with law enforcement and know that they have to make split second life and death decisions saw this case in stark contrast. I mean, I remember using the word murder way back last summer. that is not something I would have done lightly. This one was just so conscious shocking. And I don't mean to say that others have not. I've heard people talk about Emmett Till and Rodney King as, you know, the precursors to this. And I know, obviously, you hear individuals like attorney Ben Crump and Reverend Al Sharpton talk about Breonna Taylor and others. And so I'm not

close enough to it to parse out each one of this. I think this trial is different for a couple of reasons. One, it was nationally televised in a way that I frankly don't remember a trial being so focused other than the O.J. Simpson trial. All of America had the opportunity to sit in that courtroom. Two, I think because this happened in broad daylight and there were multiple opportunities over a nine and a half minute period for something to change that didn't. I also think you have law enforcement officers, including the chief, coming out and saying, you know, this was wrong. This was so far beyond, you know, appropriate conduct. Those individuals who have studied the, quote, blue wall, who have studied the circling the wagons of law enforcement,

that didn't happen. I also think you have a vast majority of people who, with their own eyes, came to the same agreement of what happened. There have been other instances, I think, in the past, where there have been police conduct where 100 people could watch the same thing, and 60%, 60 of them say one thing, 40%, say another. I have come across very few people that don't view this in a similar light. I also think that because of that, it's really been a moment for many of us who've served in law enforcement roles. It's brought everything very much in the clear contrast about exactly what happened. The Biden DOJ has said that they are opening a pattern in practice investigation against the Minneapolis

police department. I wonder if you would explain to our listeners a little bit about what that means and about what Jim Comey dubbed the Ferguson effect and how that can affect law enforcement and policing in these communities. And, you know, you've talked to me a little bit about how some of these communities want more police, not less police, and how all of that fits into what the Department of Justice's role can be in this in the Biden administration. Sure. I mean, I think one of the things that people who have studied the Department of Justice much longer than I have would say is they've always been a champion and a bulwark of civil rights. And so the pattern and practice is really interesting to me because here you have the civil rights division by statute given this ability to go in and do quote pattern and practice investigations. So the civil rights division is one of the divisions within the Department of Justice, others that you've also heard about, are the criminal division, the civil division, the environmental and natural resources division. It is one of those

entities. And so they were given the statutory authority by Congress. And so the first thing that they do is go in and conduct an independent investigation to see if there's any persistent patterns of misconduct, such as stops, searches, arrests, excessive force, discriminatory. discriminatory policing, violation of constitutional rights of suspects. And in doing so, they do interviews. They certainly interview law enforcement officials, community members, stakeholders. And then once they've gathered that data, once they've gone in and investigated, they issue a public report detailing their findings. And if there's nothing systematic there, if it's a situation where it's a small, you know, bad apple or one person who needs to be fired

and it's not that the whole system needs to be reformed or a whole police force being reformed, it gets closed. However, if they find something that's systematic, then they work towards remedying that conduct. And so that can be a negotiated agreement and it usually incorporates specific remedies and then it's overseen oftentimes by a federal court. If they can't reach a negotiated agreement overseen by a federal court, then the civil division can initiate a lawsuit and secure those reforms. I think what's interesting is DOJ. In the media, you'll see that called a consent decree. Consent decree, exactly. And it's interesting because you know, you'll have to go back and look, but there was a consent decree with the Chicago Police Department, and there was

some scholarship written that said, okay, there needed to be reforms, but the way those reforms were implemented, you know, it required a great deal of paperwork for any police, human interaction. Now, obviously, if that's going to save lives, that's important. If that's going to create overly burdensome reporting criteria for your average patrol officer such that they are no longer going to do appropriate things to stop crime, to walk the beat. Well, then you've kind of got to push-pull there. And so, again, I'm not in a position to say consent decrees are bad. You know, you never want to do them. But there is, if the goal is to ensure there's not a system, violation of constitutional rights. I think we all agree that is a positive thing. I certainly

do. The way you implement that in such a way that protects the community ensures that there are not killings that are occurring by law enforcement or that people's rights aren't being systematically violated, again, I think we all agree. That's incredibly positive. But if you do so in a way that's burdensome to the point where police are unable to protect and serve, at least there's been some scholarship out there that says, you know, you're going to see crime go up and you're going to see much more victimization and things of that nature. And the other point you mentioned, Sarah, was what about these communities where they want more police, not less? And so one example that I can give is Petersburg, Virginia. It's south

of Richmond, Virginia. It's a community that is 76% African American. And, and, you know, And I worked directly with the police chief of that community. They had very productive marches and protests following the murder of George Floyd. But they had the police march with them. And there was good synergy between law enforcement. They had a great police chief who's since retired and his deputy was also great, and he's now the chief of police. And there, when I would talk to those community members directly, they wanted more police not. because they had such rampant violence, drug dealing in their neighborhoods that they wanted

them cleaned up so their kids could wait for the bus so that their kids could not worry about gang crossfire and things like that. And so I think we all are in agreement that we need to live in a society where everyone has those opportunities and the police are part of that. So I do think it's one of the things that folks are really going to have to wrestle with and look at is, you know, if we are transferring Monday from one aspect of patrol officers to de-escalation strategies to mental health, you know, how are we also going to make sure neighborhoods are secure? And how are we going to do that in a way that people of all races feel

safe walking down the street? So it's a, I think it's a real challenge. Like so many things that are happening in our country right now, it didn't take long for this to become kind of a partisan volleyball that kept getting hit around. You had on the one hand, people on the right saying, this is going to demoralize police. This was one bad apple. And you had people on the left saying, no, there's systemic problems here. And police should watch this the same way that everyone else watched it. And I'm curious what your experience was in talking to law enforcement and working with law enforcement during a lot of these trials and cases and examples that were happening throughout the country for the last several years, which one really represents the views of

law enforcement? I wouldn't want to speak for all law enforcement, so I'll make it anecdotal, and it's not just the Eastern District of Virginia. I was fortunate enough to interact with law enforcement from all over the country through trap, through official travel, and other summits that I participated in. You know, there's a saying that I think a former NYPD officer may be credited with, which is, you know, there's no one who hates a bad cop more than a good cop. And so I know there is a large segment of police out there that are looking at what Derek Chauvin did as, you know, truly horrendous. And it makes all of their jobs more difficult and more dangerous.

I also have heard from law enforcement that are terrified of doing their job and basically under a strict scrutiny standard. And as a result, this was their dream or maybe even wasn't their dream, but it was their vocation or it was their job. And the risk just isn't worth it anymore because there is going to be such a rush to judgment that even if they did everything right in a role. ultimately exonerated, they'll be judged in the court of public opinion. And their lives will be over. Their lives will be in danger. And same with that of their family members. So it's interesting.

One of the things I've heard about this other incident that occurred regarding the alleged stabbing where deadly force was used, I've heard people all across the political spectrum say, we need to treat each case individually. We need to take each case incident by incident. And I think that's really interesting. And again, as a white male who has had an incredible amount of privilege in my life, it's probably not for me to opine on, you know, which way should we do it? As a prosecutor, former prosecutor, now defense attorney, I do think you have to look at each incident on its merits. And I don't believe every incident is the same.

I've been threatened in my life. I've had people come after me and my family because of my role as a prosecutor. And I will tell you when that was my mindset just for a brief period in time of my life where I felt hunted and I felt like I was on a, on a, forgive the pun, but a hair trigger, there's things I would have done to protect myself and my family because that was my mindset that I felt like everyone was coming after me. So I think it's an incredibly difficult issue when you hear that individuals don't feel safe driving their car,

that individuals don't feel safe doing things that you and I, Sarah, don't think twice about. At the same time, I do believe law enforcement puts themselves out there each and every day, the vast majority of them do so to the best of their abilities. And when your job includes using deadly force, The same way, doctors, crane operators, soldiers, tractor-trailer truck drivers, they make mistakes. And some of those mistakes are criminal, and some of them are civilly negligent.

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Or you can get completely terrified. Choose wisely with Halloween on Disney Plus. All right. I've got two final questions for you. Zach, you've had this wonderful career. We have young people who listen to this podcast. And I've had several email in and actually say they want to be federal prosecutors. They want to be you when they grow up. I'm curious, what's the best career advice you ever got as a baby prosecutor?

The best career advice I got as a baby prosecutor was no matter is too small and treat every matter like it's the most important. And so I think there is a tendency, and I certainly could have fallen victim to this that, well, I want to be the next Pat Fitzgerald or Andy McCarthy, you know, or Merrick Garland. And I want that. case that's going to, you know, make me a household name. The criminal justice system, especially now that I'm sitting on this side of the V, is an incredibly potent force. And the power of a prosecutor's tremendous amount of responsibility. Just sending a grand jury subpoena to a company can cause, you know, mass layoffs. And you are, you go and interview

someone and it may impact them the rest of their life. So my advice, would be do it with humility, make sure everything you do, you are, you don't ever want to just mail it in because you perceive something to be small. It's important and the small things add up. The other thing that someone told me was, nose to the grindstone, eyes on the horizon, meaning you want to work incredibly hard at whatever is in front of you, whether it's a piece of collateral litigation, whether it's a, quote, small time case. But you also don't want to to bury your head in the sand and just do the same thing over and over again. Keep your eyes on the horizon for those opportunities. And I do think it's a much harder job now than it was,

you know, 15 years ago when I joined. And to anyone who's interested in it, I encourage you to go to court, go watch a trial. There's a great, great story about a woman named Michelle Roberts, who is one of the best defense attorneys in the country. She currently works for the MBA, but prior to that, she worked for the Federal Public Defender, excuse me, the Public Defender Service in D.C. And she learned a great deal about trying cases because as she tells it, her home in public housing

was not air conditioned. And so her mom would take her into court because it was air conditioned, and they would watch trials when she was little. And so you can really be shaped, and watched by what you see in court and what she saw really prompted her and pushed her to go into criminal defense.

And so I'd encourage anybody who's thinking about being a prosecutor, take the time, go watch a few trials, and then decide what you want to do. All right. Last question. There's a lot of law that's shown on TV or movies. What is the prosecutor or legal TV show or movie that you think is closest to your experience?

So that's a really tough one because I'm sure like many doctors or firefighters, like I can't watch, I cannot watch lawyers on TV. Everyone tells me I should watch billions. And a lot of times when people have no idea what a U.S. attorney does, they say, is it like billions? So I don't, I don't watch those shows. I've seen plenty of legal dramas. I don't think any of them hit anywhere close to the mark. So I'm sorry. This is all the wrong answer. The answer is a few good men. Yeah, I was going to say there are certain, certain speeches and certain things that I, you know, I have adopted and look back on. No, I use movies and TV as an escape.

And so I would encourage you, you know, to watch, you know, things that are as far away from what you think you may want to do as possible. What's your most recent binge? So I don't binge watch as much anymore because. Because, you know, when you're out there on the defense side, I feel like I've always got client work to do. But I did watch The Queens Gambit, which was very interesting. I'm not a chess player. And, you know, it was that one, I can't say that I thought it was phenomenal. But, you know, at the beginning of the pandemic, I did Tiger King and the Michael Jordan Exposet.

and, you know, and then I watched Yellowstone, and those were all fantastic. And so I feel like I'm sort of, you know, scraping for something new. All right, Zach. This was Zach Terwilliger, former U.S. Attorney for the Eastern District of Virginia. And now the hardest working partner at Vincent and Elkins. As you can tell, he doesn't even have time to binge watch TV like a regular human. This is brought to you by the This episode is brought to you by Squarespace.

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