The Jordan Harbinger Show - 243: Mark Geragos | How Celebrities Stay out of Jail

Episode Date: August 27, 2019

Mark Geragos (@markgeragos) is a criminal defense lawyer who has represented high-profile clients like Michael Jackson, Winona Ryder, Gary Condit, Susan McDougal, Chris Brown, and Scott Peterson. He is the co-author of Mistrial: An Inside Look at How the Criminal Justice System Works...and Sometimes Doesn't.  "You never know what's going to happen -- especially when you're kind of the emergency room doctor of the law." -Mark Geragos  What We Discuss with Mark Geragos: How (and why) does a criminal defense lawyer stand up for the rights of someone who seems clearly guilty? How nonverbal communication and body language are used effectively in the courtroom. The court of public opinion and why it matters today more than ever. The skills Mark uses to control his emotions during life and death trials. What Mark witnessed in his youth that ensured his choice to defend people from criminal charges rather than prosecute them. And much more... Sign up for Six-Minute Networking -- our free networking and relationship development mini course -- at jordanharbinger.com/course! Like this show? Please leave us a review here -- even one sentence helps! Full show notes and resources can be found here.See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

This episode is sponsored in part by Conspiruality Podcast. You know how I'm always talking about critical thinking and spotting manipulation? Well, there's a podcast that's all about dismantling new age cults, wellness grifters, and conspiracy mad yogis, basically the wild overlap of spirituality and misinformation. It's called the Conspiruality Podcast. The hosts, a journalist, cult researcher, and a philosophical skeptic, dive deep into how this stuff spreads, from Project 2025 and the Heritage Foundation's dystopian vision of the future to how former leftists get pulled into far-right conspiracies.

An interesting episode to check out is called Speaking Truth to Goop, where Jen Gunter breaks down the pseudoscience behind the wellness industry in a way that is super entertaining and eye-opening. It's sharp, funny, and makes you a lot harder to fool, which, if you listen to this show, you know I'm all about that. From exploring cults to analyzing our cultural and political landscape, the Conspiratuality Podcast will help you stay informed against misinformation and resist fear tactics.

Find Conspirality on Apple Podcasts, Spotify, and wherever you do. get your podcasts. To be a good trial lawyer, you need to be a student, a constant student of human nature, and you have to understand human nature. Welcome to the Jordan Harbinger show. I'm Jordan Harbinger. As always, I'm here with my producer, Jason DeFilippo. If you were a listener of our previous podcast, which we won't name just now, you might have some questions. I get it. We'll handle all that at some point. But right now, let's focus on the future. In our immediate future, we have Mark Garagos. He is such an interesting character, man. I'll tell you right now. When I first had the opportunity to do this show, I thought, a celebrity lawyer, I don't know,

it's not really up my alley, but I realized not only is he one of the smartest guys in L.A. and one of the most well-known lawyers in the country, he's represented Michael Jackson, Winona Ryder, Gary Condit, Susan McDougal, Scott Peterson. He even got a presidential pardon for one of his clients, Susan McDougal. That process alone was fascinating enough for the legal geek, former lawyer in me, but today for you, we're going to explore why nonverbal communication and body language actually matter in the courtroom and how he has mastered this formula for himself and of course for his celebrity clients if they hit the stand and we'll discuss the court of public opinion and why it matters even more today than ever and we'll uncover the skills

Mark uses to control his emotions during life and death trials in some of the highest profile cases not only in our country but in the world. So please enjoy this first episode of the Jordan Harbinger show with my friend Mark Garragos. Mark, definitely thank you for doing this. I know it's Saturday. Saturdays, you'd be shocked at how often I work on Saturdays. Yeah, I mean, you know, I wouldn't be having worked with a bunch of lawyers recently. Now I'm like, these guys are on 24-7.

And when I used to work at a law firm, I thought that I was just getting a typical Wall Street first-year associate or junior associate deal where you work seven days a week. But now I realize if you're a lawyer and you got work to do, you're doing it. And it doesn't really matter when it is or what day it is. It's exactly right. Nothing you can do. And I think for you especially working with celebrities and the high profile clients that you do work with, you're not telling Michael Jackson, Winona Ryder, Gary Condit, Susan McDougal, Scott Peterson,

Hey, look, it's Sunday. So I'm Netflixing. Do you have, what is this important? Because they're saying, yeah, I'm being a prosecutor. by the Attorney General or I'm on death row or if this doesn't work? I tell this story and it's absolutely true that about 10 years ago on a Sunday morning, it was in L.A. It was about 530 or 6 in the morning. And I got a call from a buddy out in New York. And he said, I've got a client, LAPD, Los Angeles Police Department's got a arrest warrant for him.

His name is Chris Brown and the victim's name is Rihanna. And I said, out, meet him at the hotel. They didn't want him to get arrested on the stage at the Grammys that evening. So I walked into my then 16-year-old daughter's room, woke her up and said, Tenney, who's Chris Brown, and what is a Rihana? Oh, my God. And she said, she said, Dad, you're such a loser. Yeah, of course. So that's Sunday morning. You never know what's going to happen, especially when you're kind of the emergency room doctor of the law. Would they really arrest somebody on stage at the Grammys? Would they walk in to the that award show and say, is Chris Brown here?

I would have thought that LAPD might have waited for the performance and as he walked off stage, done it. In a previous life, I was a rock and roll concert promoter back in the late 70s, early 80s, and while I was going to law school. And I had a group called Susie and the Banshees. I don't know, probably before your time. And Susie got into it with somebody in the Mosh Pit. and the Pasadena police arrested the guitarist as he came off stage right after the show,

much to my chagrin as the promoter. Well, I guess you could, you had a good excuse for not paying them right away. Sorry, he was in jail. No, they wanted me to bail him out immediately. Oh, my gosh. Yeah, well, you know, of course, who else do they have? But it was nice of them to wait for the show to finish. You know, they could have just said, unplug it, right?

I guess they could have ruined your business, too, but they didn't. Exactly. So the police aren't all bad when it comes to arresting people on stage? No, I thought, you know, as hard a time as I give cops, there really are some spectacular officers, first responders. And I mean spectacular. I couldn't be more complimentary of most to do their job. But like anything else, I mean, you know, I could, don't get me started on dumb shit lawyers. I mean, you know, there's horrible lawyers.

There's horrible law enforcement. It's like any other occupation. Yeah, well, there's a reason that we as attorneys, because I'm still licensed in the state of New York, so I can still say we. There's a reason we have a bad rap. I mean, as an attorney, whenever people go, well, I don't mean you when I say lawyer joke this, if a lawyer joke that, and I'm thinking, of course not. But I've had lawyers where I had a lawyer when I was in New York where I was suing some former employees of company that I used to run. This lawyer would ask to meet in this office building. And whenever we would go in there, it would be dark.

and then we would go, where's your office? And he would never answer the question. And we would never sit down anywhere. And he would try to open conference room doors and they'd be locked and he'd say, I don't know why it's locked. And then another time he had us meet in another office building. And we went, wait a minute, you don't have an office. You're just pretending that you have offices in Manhattan.

And you're walking into vacant buildings where people are done for the day and you're pretending. So funny. I love that. And I thought, what kind of crappy lawyer do we have? and we found out when he just stopped showing up to court. Well, you know, there's so many stories like that of guys who just can't make it. You know, I've known some spectacular lawyers, both prosecutors and defense lawyers.

You know, the first 15 years of my career, I did nothing but criminal defense. And it would always interest me. Somebody could be a great lawyer, but you take them out of a county or a municipal or a government-run office, and they can't last two or three months. because there's also a skill set to running a business. That's for sure. That's for sure. And you see a lot of brilliant lawyers at firms that don't know how to run a business,

and you see a lot of people that probably shouldn't be lawyers, but run a practice like nobody's business, right? They rock it. That's exactly right. I know some very successful lawyers who literally could not try a case to save their life, but they found a niche and they do well. Looking at the news cycle, this is something that you have mastered, riding. And you have a very distinct set of skills, Liam Neeson style. You have different sets of

skills that are very complimentary in a lot of ways. And I want to dig into this. But first, I want to know why you went to law school, because I went to law school, because I didn't know what to do with my life. I couldn't get a job at freaking best buy, even though I had a degree from the University of Michigan. And I spoke at the time, I think three languages. I couldn't get a job selling freaking CDs. So I just panicked and went for more education. Did you have a deeper purpose going to law school? Or was it Is it like, I don't want to be a doctor and I'm Armenian. I don't have a choice. My history is that I grew up first 13 years of my life.

Literally the same month I was conceived, my father started as a deputy district attorney in the L.A. County DA's office. And first 13 years of my life, I jokingly say, and maybe not so jokingly, I thought my first name was dumb and my middle name was shit because that's all he ever called me. But I would tag along and watch him in court. And I used to think this is the greatest. job of all. I mean, you go in, there's no real heavy lifting, you shoot your mouth off, you get a two-hour lunch, and then you go home at four or five o'clock. That's, you know, as a prosecutor. So I was

kind of attracted to it because I love the idea of using your brain, because my father was very skilled at making us do chores and hard work so we'd know what the alternative was, and pulling rocks out of the wash and crazy stuff like that. But ultimately, I was fascinated with the law. I read to kill a mockingbird. I can't tell you how many times I used to watch the old TV show, Perry Mason. And I just thought the most noble profession you could have was to be a criminal defense lawyer defending somebody who was unjustly accused. Right. You know, I agree with you there. The problem is a lot of your clients would be, well, not yours. A lot of clients that any criminal defense lawyer has are very justly accused.

And I'd love to talk about what you do when that happens because one thing that non-lawyers, my wife included, seemed to have trouble with is the idea of that the idea that everyone deserves zealous advocacy. And I'm sure you run into this all the time. Like, how are you defending that guy? He's a scumbag. And the fact is that it's important for everyone to have. a good defense, even if there's a scumbag?

I look at it in two different ways, and it's playing out actually internationally right now. I used to always, when early in my career, people would always say, how do you defend this guy? How do you defend that guy? And I say, you know, I don't lose sleep over the people that I defend who I think are good for it. The cases I lose sleepover are the ones where I think the client is innocent. I mean, that to me is the real pressure. But part of what you do, and one of the cases that kind of catapult, my career into the stratosphere was a case back in the 90s involving Susan McDougal, who was

Bill Clinton's business partner. She and her husband were Bill and Hillary Clinton's business partner in the Whitewater Development Corporation Real Estate. And I used to complain back then about the Office of Independent Council, and I'd complain about the feds, and I complain about the fact that the prosecution and the investigation was biased and was political. And you know, the Ken Starr was the Office of Independent Council, and I said he was politicized, and he was doing the Republicans, something lifting. And now you watch the Mueller investigation, and the same Republicans who I was complaining about then were using the criminal justice system for political purposes are now claiming that the Democrats have infiltrated, and the

Russian investigation is biased and is not an honest investigation. and that the investigators are corrupt and they have political agendas. And it's exactly what we were arguing back in the 90s, except we've just flipped the actors. Getting a presidential pardon from one of your clients, speaking of Susan McDougal, that is, I don't even know where to put that on the charts, right? That's almost the grand slam of not guilty. But it's not even that. It's beyond that.

That's as high as you can go. One of the reasons I'm so proud of the work with Susan is Susan came to me and she had already been convicted. She was on trial with the then governor of Arkansas and her husband in Arkansas, and she was convicted, refused to testify in front of the grand jury. They put her into custody for civil contempt, and then they brought her to Los Angeles to try her for an embezzlement case. That's how I met her. And some of my other clients who were in custody at the time in the women's prison, it's actually the women's jail back then, had told her that she needed to talk to me. She talked to me. I ended up trying that case out here.

in L.A. for 15 weeks. She got acquitted on all counts. Then the opposite independent counsel indict her for obstruction of justice and criminal contempt. So I'm one of the few humans that's ever tried an obstruction of justice independent counsel or special counsel type prosecution. She was acquitted of the obstruction of justice, but she still had that felony conviction from the original one that I didn't try. And so literally, we ran. through all of the hoops to try to get her her pardon. And one of the three last pardons that Bill Clinton gave was to Susan McDougal. So that I do consider that to be the back-to-back state federal acquittals and then a presidential pardon. That's about as good

as three baggers you can get. Yeah, that's kind of like the that's sort of like winning multiple championships, I would say, at that point. But I want to know about the hoops of a presidential pardon. How much of this are we able to discuss? Because that is, That's a process that has no transparency for the general public that doesn't maybe research this. Yeah, people always think or they tend to think that it has something to do with your juice or your influence or this or that. But there is a process by which you go through. And that's not to say that having access is harmful. I'm sure listeners would remember, at least on the state pardon level, when Schwarzenegger pardoned the,

son of another legislator on his way out the door as governor in California. And people would also say about Bill Clinton that the pardon of Mark Rich, who was the financier who had fled the country, was also something that did not seem to go through the normal processes. But normally what you do is you put together a pardon or a commutation application. And there's certain things that you have to go through. You have to show. You have to put put together the package. You then have a, there's an investigation that's done. Generally, the prosecutor is invited to weigh in. I know that one I'm currently working on in the state, in California, the prosecutor joined with us in this particular application, and we just literally

within the last month went through the what's called the in-bank parole board hearing, where they vote on it as well. In the state, and people should know the differences, is federally, the president can only pardon somebody for federal crimes. If you've got a state crime, your governor, wherever that state is, is the one who can pardon. And generally, the only things that are non-appealable in the criminal law are a not-guilty verdict or a pardon. And, you know, that's the way the founders set it up.

And it's been the law for God knows how long. People may remember when Donald Trump pardon Joe Arpeo, who was the sheriff who had been found in criminal contempt in Arizona back in November, that that was a federal case. And he pardoned Joe Arpeo, that sheriff who I have very little use for, who now is running for the U.S. Senate on Jeff Flake's seat in Arizona. That Joe Arpao to give people a little bit of background. He's a sheriff that is so, well, his reputation is extra, extra, extra, extra hard on crime, but to the point where it's really a lot of cruel and unusual punishment going on, depending on who you ask, and also a lot of racial profiling in ways that has been legislated and adjudicated as completely reprehensible and unlawful. And he just said, screw it, I don't care, I'm going to do it anyway. and so he was brought to charges. Did I get that more or less correct? Yeah, you got that very well. There's also, there's an article floating around out there, and I forget which publication that did an in-depth study of his history, and it's truly frightening. He conspired with one of the prosecutors to indict and arrest people who were political rivals of his

and a board of supervisors, I believe is what it was. Later, when they, was exposed that he had just kind of jimmy jinned up the prosecution. He ended up costing the taxpayers millions of dollars because of the phony jinning up of the charges. His racial profiling, he was found guilty of by a federal judge, but he was pardoned for. I mean, it was some of the most outrageous things this guy used to do. The, I guess, certain pockets, if you will, of the Arizona constituency love him. But certainly it's not. to that I would ever say is something that you would want to probably emulate if you're long. Yeah, the certain pocket of Arizona citizenry that really loves Joe Arpao, and pardon me

if you're listening and you think you're one of them, but tend to be people that think, well, look, Latinos just commit more crimes, okay? So we're looking at it's like that kind of mindset. It's exactly right. I always think it's offensive. I mean, it's offensive enough if you practice in the criminal courts to, you know, walk in there every day and basically see the same demographic. And the demographic is, you know, 80% of what's running through the courthouses are processing generally minorities and indigence on drug crimes or things that are related to drugs. I mean, literally 80% of the volume of the criminal courts. And it's such a useless feudal enterprise because generally you're going to find that, once again, my father, who was my hero, used to say, if you want to clean up crime, just incarcerate all males from the ages of 16 to 24.

And, you know, there's something to that. I mean, generally, most crime is committed by males in that kind of age group for biological, cultural reasons and things of that nature and economic reasons. But there's other solutions than just building more prisons and incarcerating people and kind of recycling them, if you will, or warehousing them. It just seems it hasn't worked. It doesn't make any sense. And I think obvious solutions that make more sense, whether it's a compulsory draft where you can't have deferments and you've got to do a mandatory two years of service in either the armed services or in some kind of community service alternative. if you're not somebody who's inclined to do that. I think that gives you or gives people a place to go where there's structure

while your brain is still developing as a male especially. I can see that. I definitely think some sort of regimented civil service, even if it's not a draft in the military, would be interesting. I am curious that which crimes did you commit between the ages of 16 and 24? God, I can't. One of the reasons that I never felt comfortable, I mean, I was offered a job as a prosecutor coming out of law school.

And I really, there was a judge by his name of Clarence Stromwall, Red Stromwall. And Red was a legendary LAPD detective in his day back in the 40s. And then he became a superior court judge when I was first starting out. And he used to have the expression that don't bring me or prosecute any cases in my courtroom for crimes I would have committed or I have committed. And that was kind of my philosophy is like, how do I want to be a prosecutor and prosecute people for these bullshit crimes? In fact, one of the way I mentioned before that when I was 13, my father left the DA's office. I like to think that it was because I went with him to court once. And back then, this would have been 1969 or so.

He was prosecuting some kid. And when I say kid, I mean a 17 or 18 year old, for being in a room where marijuana was smoked. And I'll never forget this kid got either 16 or 18 months for being in a room where marijuana was smoked. And it just blew my mind. I couldn't get my brain around it. How could this kid go to prison and have his life ruined

for just being in a room where somebody else was committing a crime? And I like to think I talked to my father. We had this heartfelt talk. And my mother later on told me, no, don't be an egoist. maniac. I told him he had to leave the office because I wasn't putting three sons through college, his three sons through college, on $17,000 a year of the DA's salary. That's incredibly disheartening to hear that prosecutors even do prosecute things like that.

It just seems not only is it wasteful, but, I mean, the waste of human potential for something like that is just so extreme. You could put a kid in prison. Go down. Where are you located? I'm in San Jose, California. Okay. There is a courtroom in East Los Angeles. Angeles. I believe it's Department 6. East Los Angeles is in the city of L.A. And this courthouse and this courtroom are designated its weed court, W-E-E-D. And they do nothing but prosecute people who are cannabis providers, medical marijuana providers. Mind you, virtually every single one of these people that they're prosecuting, the city of L.A. is collecting their business.

tax from these people on the one hand. And on the other hand, the L.A. City attorney is prosecuting these people trying to put them out of business. It's the craziest situation you'd ever see. And nobody, the prosecutors, when you tell them, when you go through it, they just look at you like, you know, somebody hit him between the eyes with a baseball bat and they just, they don't understand why this is somehow hypocritical or crazy. The baffling parts of criminal defense don't only come on the prosecutorial or government side though when I was doing a legal clinic back a decade or so ago in law school the one one of the clients that I had that was the most interesting and really stuck with me

was a guy who had allegedly because I remember I have to say that robbed a 7-11 or a liquor store and they had him on video walking in stealing a bunch of stuff threatening the clerk with a blunt object and getting some cash and leaving and he would not admit it and he was saying I'm not admitting that's not me. That's not me on the camera. And, you know, I looked, but it really was definitely somebody who looked exactly like him. And I asked him, hey, look, man, why do you keep saying that? Because if we plead guilty, you're probably just going to get probation.

You don't have much of a record. We can talk to the prosecutor. And he said, no, I know that if I go to court and you work for the government because you're a white dude, I'm in trouble. And I said, no, I work for you, man. I work for you. I work at this law clinic. I don't, I'm not governmental at all.

And he just didn't believe me. And he was like, I'm not telling you shit. Because if I say that I did that, you're going to tell the cops and then I'm going to go to jail. And it's going to be this whole thing. And I did, no matter what I did, I could not explain to him. Well, there is a, for years, I used to when a client, I'd ask the client, do you have a lawyer? And he'd say, no, a public defender. And I say, they are a lawyer.

And they say, yeah, they work for the same people that the, uh, prosecutor does. There's that kind of deep-seated, deep-rooted suspicion of any lawyer. Plus, there's also, it's like anything else, people tend to not respect somebody who's working for free or you're not paying. You know, that's a, there's a part of human nature that automatically dismisses the person because you're not paying them. Especially when it's a suspicious process, like somebody who's been disenfranchised their entire life, commits a crime, gets arrested by authorities, incarcerated by authorities, and is hearing all these stories about how the authorities are against them. And then suddenly this young white dude shows up from the suburbs of Detroit and says,

well, I think you should just tell him you did it. That's your best bet there, buddy. And he's just like, I was not born yesterday. I'm not doing that. You know, and I just thought, oh, crap, I have no way to build trust with you right now at all. Yeah. I'd say, look, the indigent defense is a fairly recent phenomena. People do not realize that Gideon versus Wainwright, I think, is what, 60 years old maybe, where you had the right to a lawyer. That was not originally necessarily, even though you could hire a lawyer. The idea of getting one for free is a fairly recent phenomenon in a criminal context. Gideon versus Wainwright was early 60s. So, I mean, it's newer even than that. How long ago was that? I'm trying to think. Is that what was 50, 60 years ago? I can't remember

what you said. But yeah, you're 50, 60 years ago. This isn't something that's been American since 1776, right? No, I mean, you know, you take a look at some of the things we take for granted, and they're really a function of the last, you know, five or six decades. Miranda writes is a fairly recent phenomenon in the history of jurisprudence. Gideon versus Wainwright is a fairly recent phenomena, the idea of holding the prosecution to not bringing in hearsay and allowing you to cross-examine, it was not really formulated until, of all people, Scalia in the Crawford case. And so that's, you know, that's less than 10 years ago. So a lot of the developments, kind of seminal developments in the criminal law are literally in my lifetime.

working with celebrities what are the the differences and demands of people like that because i'm just thinking wow it's hard enough to work with people that are indigent and not paying you or people that are paying you but are just everyday folks celebrities often at least by reputation want your attention 24-7 and this is a very important by the time they're calling you mark this is a hard time in their life maybe the hardest time they've ever had in their life so i can imagine that ratchets up the level of demand to the point where they must be calling you at 4 a.m. on your cell phone and just wanting to unload and you're thinking. Well, part of what happens is, you know, generally most what I call high profile or people who

are famous as opposed to infamous, people generally have either an entertainment lawyer or a personal lawyer or they've got, if they're a politician, they've got somebody who's mentored them, who's usually a lawyer, and they've had a longstanding relationship that's measured in years. Generally, when I get called in the context of helping somebody who's high profile or in a situation like that, I'm a one-off. They're going to deal with me on this one occasion, and then hopefully they'll never see me again. I mean, that's, you know, they almost have post-traumatic stress syndrome when I even called. Happy birthday.

Oh, my God. You had me get. Scared me. Why are you calling me? I've been fortunate to have developed what I consider to be good and lasting friendships with many of the people I've represented in horrific situations. But it's a challenge. And a lot of the challenge is not so much derivative of them, but because until,

you've done a number of high-profile cases, it's very hard to get a lawyer to completely understand how much of a time, energy, and soul suck the high-profile media nature of the case involves. Because you're not only managing the situation, you're not only managing a client who's in the crosshairs and who sees their whole light, you know, it's the worst. day of their life. You're also trying to manage the flow of information because generally nobody leaks like law enforcement and law enforcement is constantly cherry picking what gets leaked. Clients feel like they're fighting a battle inside and outside of the courtroom and always want to fight back. Their inclination is I've got to fight back. What do I do with my reputation?

You know, there was, before there was Ray Donovan, the Showtime series, there was a Ray Donovan, who was a labor secretary under Ronald Reagan. And Ray Donovan was prosecuted and later acquitted of a federal, I think it was wire fraud or mail fraud charge. And he came out under the courthouse steps and said famously, you know, okay, now where do I go to get my reputation back after I've been acquitted? And that's why I often tell clients you can beat the rap but not the ride. Getting chewed up by the criminal justice system is something that I wouldn't wish on my worst enemy. Wow. That's really terrifying because you can lose your reputation no matter what, even if you're right. And I think this was you that had said this in a video that I was doing when I was doing my homework on you. If you don't respond in the court of public opinion, you've already lost your case.

And you can lose anyway. It's exactly right. The idea, you know, the generation before me used to look down on any lawyer who was in the media. You know, my father and all my mentors included. And I used to say, well, that was then, this is now. You know, it's been since 1950-something since Shepard v. Maxwell, which was the U.S. Supreme Court case involving the Dr. Sam Shepard, which later became a movie and a TV series, The Fugent. and that's where Effley Bailey made his career by getting that reversed for pretrial publicity. You read the publicity in the Shepard v. Maxwell case, and it's virtually, it's like quaint.

It's almost too cute compared to what goes on in high-profile cases now. It's not even in the same stratosphere. Are there, is there anyone you would not represent on moral grounds? I know this is a sort of a legal philosophy question that we went through back at the University of Michigan. in law school back in the day. But I think, again, for non-lawyers, they have trouble wrapping their heads around this kind of thing. You take an oath, especially in California,

under 6068 of the B&P code, that you're to zealously represent and not turn down a client just because of their, for lack of a better term, notorious nature. I've never turned somebody down because the case was notorious, and I've represented it various times,

probably the most hated men in America. I do, however, once again, I'll invoke Scalia. He used to say, well, why can't lawyers make a choice? They make choices all the time on whether a client can pay. I, at this point, will make choices based on whether or not I want to deal with the client. And life is too short. If the client's just an asshole, I generally don't want to deal with it. And that's just more out of personal preference than morality, however.

I think that makes sense. Yeah, life is definitely too short to deal with people that you don't want to deal with, especially if you're helping them and they're a prick. It's like, come on, man, you don't have enough money for this. That's kind of what I say. I can't tell you how often I say no good deed goes unpunished. It's generally true. How different is the skill of advocating in the courtroom different from advocating in public? Because you have to do both.

You especially have to do both. Most lawyers can get away with courtroom stuff. But with your clients, you've got to walk behind Michael Jackson. You've got to stand next to Chris Brown, and you've got to walk him in there because if you don't, it looks like something's wrong. And these have to be different skill sets because you can say and do totally different things inside and outside. And in fact, you can't do the same thing that you would in a courtroom in front of a bunch of journalists who are going to try to spin it and use it against your client. You've hit on the balancing act. You have to understand basically who your audience is in any particular case.

sometimes if it's a case that I know, for instance, is never going to go to jury trial, my audience may be the prosecutor and the judge, and so I may take a different tact than I would. If I know a case is going to have to be tried and it's going to be in the jury pool, then I've got a duty to respond to whatever the prosecution is doing in terms of painting a picture of my client. Otherwise, as you accurately summed up, there's a real problem because by the time I get to picking a jury, I may be so far behind the eight ball that it doesn't matter what goes on in the courtroom with the evidence that we're never going to get past the jury selection. So you have to think that through and you have to understand it. You also have to understand that what goes on in a courtroom, you pick your battles and what hills you want to die on. Certain judges, you may know, and you may know because you've been in front of them.

before. You may know what their inclinations are. You may know where they're going to, what they may find to be appropriate, inappropriate. And you have to be able, I always tell my young lawyers, especially, that the one thing that you have to do as a lawyer is always remain fluid. You know, the old expression that I never met a battle plan that survived the first clash could not be a more apt aphorism for how to practice law and how to try cases because every case has got a life of its own. You've got to stay fluid. You've got to be nimble and you've got to be able to move and understand that at certain points, your strategy, so to speak, is going to change dramatically. How does that strategy look? I was reading and watching a lot of interviews of you

before this, of course, and that's how I spent most of yesterday and today. And you're very good it being interviewed, surprise, surprise. One thing that I noticed it was really, just really done artfully was you're able to, and I don't mean this in any negative way, it might come out that way, you're able to deflect or sort of defer questions that attack your clients and do so in a way that really does preserve your client's dignity. I'm trying to think of an example here. For example, there was a journalist and he asked you something like, well, you know, what about Scott Peterson? I mean, that guy, he, you know, he murdered his pregnant wife. If everyone hates that guy, it was something along those lines.

And I thought, wow, for a second, I thought you're kind of in trouble because you can't say, oh, come on, he's a great guy because, you know, he's on death row and nobody necessarily believes that. And you can't say, well, there's always an issue of fact because that's just what lawyers say when they're like, oh, you got me on that one. And you said something that was, that just threw enough doubt and enough critical thinking brain into the question that you preserve Scott Peterson's dignity while giving this journalist something that he was just fishing for in a way? Well, you know, one of the things, there's great journalists and there's not so great journalists like anything else. And one of the sometimes, I mean, I think, having done this 35 years or so, that one of the things that I've learned is is that you just can't get dragged into whatever the gotcha moment is, that there needs to be, I mean, I try to view it as an educational.

process. I mean, I remember one particular time, and I'd seen, I saw a clip of this the other night, and I forget in what context, but it was when somebody was revoking, a judge, I think it was Branlon was revoking Chris Brown's probation, because when he was in rehab, he had said something, and then they were kicked him out of rehab, and that was going to be the revocation. And it was a feeding frenzy out in front of the criminal courts building downtown. And we were doing the press conference and everybody wanted to know, you know, why did he say this? Why did he say that? And it struck me.

And I said at the time, I said, look, the guy's making an effort. He voluntarily went into rehab. He is in a therapeutic setting. And guess what? He has a bad day. I've had a bad day. You have a bad day? You know, not every day is good.

Do you say stuff you'd like to take back? Absolutely. He say stuff you'd like to take back. I do that every day. So that's what he did in a thing. therapeutic setting. And it seems to me that it's a little harsh that we throw somebody into custody who's actually just trying to work through their issues. So I just try to phrase these things. I don't mean it so much as deflection as to try to just get into what it is that is the real

issue here. Get to the core of what the issue is in a particular setting, so to speak. And that's kind of what the approach I always take is. Is there a formula for this really? I mean, I mean, do you think of the questions that you're going to face ahead of time if you have to do this? I know a lot of lawyers, man, this thing we watched a million years ago, it had to do with cross-examination. And the only video of it, in fact, let me find this. We'll throw this in the show notes. This is a very famous professor, Irving Younger. Do you know who I'm talking about?

Ten Commandments of Cross-Examination? I think it's from like, it's got to be from the 80s or something. And one of them, this is where the infamous or famous adage or Maxim never ask a question. if you don't already know the answer. Yeah, I like to say the mark of a true trial lawyer is when you can ask a question you don't know the answer to and you get the answer you want. I guess that would be the magic sauce, but that might be a little bit harder, that might be a little bit harder, of course, because you have to be a little prescient.

It is. It is. But ultimately, at the end of the day, one of the things that I think, one of the truisms about trials is that to be a good trial lawyer, you need to be a student, a constant student of human nature. And you have to understand human nature. You have to always try to put yourself in not just your client's shoes, but the prosecutor's shoes, the judge's shoes, the witness's shoes. You have to understand what the witness is trying to do and what the witness's motivation is and where the witness is coming from. And if you do that, there aren't that many variations.

on a theme. We humans are remarkable, we have a remarkably slim bandwidth when it comes to our motivations and our desires and our fears. And if you, once you understand that, once you stop thinking like a lawyer and start thinking like a human being, it's invigorating. When you started studying human nature, was this something you noticed you needed in the legal field or was this something that you had started studying beforehand that you just found served really well at trial? I was always fascinated, always fascinated with theology and anthropology and sociology. In fact, those were kind of my three majors and minors in college.

That's why I thought you went to law school. I went, well, you study anthropology and sociology. You're unemployable. You better go to law school. That's what I thought you went there. That was once again, my father, who I love to quote, used to say, when I told him, I was, he asked me what my major was, and I said cultural anthropology and sociology. And he said that in a quarter, I'll buy you a cup of coffee.

Pretty much, yeah. But it was interesting to me to study other cultures, civilizations, and be able to, at least to, you know, 85%, be able to see that there were commonality across the entire spectrum of certain kinds of structures, human inclinations, human needs. And when you start to understand that, and when you start to understand the role of theology and the role of religion and what that means to the human mind, it gives you a great window into how humans act and will react, so to speak, in certain situations. You were talking about cross-examination on CNN. This was, this gal Arias was on the stand. And you mentioned the prosecutor. You were actually, I think you were a little down on this prosecutor, and you were saying his posture, his body language, I mean, it's all wrong and he's just going on for days.

What are you looking at when you're looking at posture, body language, nonverbal communication? How do you consciously or unconsciously now that you've been doing it for so long apply these concepts in court at trial? Look, there's I, there is nothing wrong with being selectively theatric in a trial. But as I also try to teach the lawyers, ultimately at the end of the day, you want the jurors to focus. First of all, you've got to have credibility with a jury. If you don't have credibility with a jury, you're lost. They'll wheel on you. They'll turn on you immediately.

And you're your client's voice. So you have to be a fair arbiter of what's going on in that courtroom. And you have to get them to focus on the witness. and get them to focus, especially if it's a difficult witness for your position, you need to get them to focus on this and to go there with you. And the only way you go there with you, or you're going to have the jurors go there with you, and you don't need all the jurors, by the way. Part of the secret of a jury trial is you don't need 12 jurors. You need three or four strong jurors who are going to roll the others. and if you're not speaking to them

and if they're not, you know, with you, you're nowhere. And that's why I was so hard on that prosecutor. He was more interested in preening for the camera than he was in trying to prove his case. Now, did anything change in your approach in the courtroom once TV cameras came into the picture? Because you were in the middle of your career when they went, eh, screw it, we can film in here now.

That must have changed the dynamics. One of the interesting things, I've tried a couple of civil cases in the last 10 years, up in your neighborhood in San Jose over at the Santa Clara Courthouse. Both have been televised and the camera's there, but you tend to forget about it fairly quickly. And I know that just from having tried two long cases in the Santa Clara courthouse and both of those, the film, they ended up selling it. In fact, I should have been smarter and made sure I. I got a royalty, but they ended up selling those as practice guides for the particular litigation. And I think it probably has more effect on witnesses than it does on lawyers generally, although some lawyers get carried away. How do you mean more effect on witnesses? I think the witnesses are more intimidated because there's a quick camera in the courtroom. I also think a lot of times it intimidates judges, judges who normally might do

something that I would term more courageous will be more afraid if there's a camera in the courtroom. Yeah, I can see that because they realize they're going to be up for scrutiny or if they misspeak, it's not going to look good. And what about with clients? Do you know, you don't want someone to quote unquote look guilty, guilty or innocent. You might have to coach them or get them some media coaching. Do you give them media coaching? How does that work? I generally try. By the time you get to trial. And mind you, one of the last things you ever want to do is a criminal defense lawyer is ever put your own client on the stand. That's the worst situation of all. I can't even tell you how many times that I've tried to talk them out of it. The coaching I give is generally along the

lines of, look, this is what I either like about you or I don't like about you. And here are the, you've seen this jury. If you start fighting or actually, acting like an asshole or get agitated, you're going to lose this juror or that juror. So I try to give them the lay of the land. And if you can do that in a way, and if you can relax them through the direct exam, then it's really up to them to try to chill out during the cross. And unfortunately, for some clients, and mind you, in civil cases, you don't have a choice. The client's almost always got to testify.

But in criminal cases, off times, nine times out of ten, I try to try the case without putting the client on. That makes sense, of course, because kind of things can only go wrong from there. They can have nervousness. It's a rare case that gets better for the defense after the prosecution rests. Yeah, I can see that or under cross or anything like that. I mean, yeah, it's just. Well, it becomes, remember, jurors are going to stop focusing on the defects in the prosecution's case, and they're going to get back there.

What did the defendant say? What did the accused say? I mean, that's always the case. It's natural. It's human nature. Okay, that makes sense. What about clients that are used to being in the media? Do you have to tell them to tone it down?

I mean, I remember in one instance, Michael Jackson was being prosecuted for molest or accused, I should say, of molestation, and he jumps up on his SUV and he's waving to his fans. And I get it. I totally understand why he did that. But I kind of feel like his lawyer, which was not you at the time, It might have been like, hey, maybe don't do a backflip in front of your audience. Actually, that was me at the time.

I was there with Ben Brothman, who was my co-counsel. I turned to Ben. My first reaction was, how does some guy his age make that kind of leap on top of that thing? And then Ben tells the joke that he turned to me and he says, if we don't get this under control, this guy's going to come to court next time in his pajamas, which he ended up poor. Did he really? He came to court in his pajamas? Yeah.

He must have been in bad shape at that. point. I mean, that's not a normal. I always felt bad for Michael. I mean, that was a horrific thing for him to go through. Yeah, I know what being involved in legal stuff feels like firsthand, both from a practicing perspective as an attorney and also from being in the middle of civil litigation. So I can only imagine what it's like. It's got to be times 100 when you're accused of something like that and you're such a high profile person. I mean, there's just no way. It's true. I mean, my feeling is, you know, civil, you're. always fighting about OPM, other people's money. And so, you know, it's just a money transfer.

But criminal, you're talking about people's lives. And so that takes a bit of your soul. Yeah. Oh, my goodness. How do you keep your emotions from interfering with your advocacy? I mean, in either way, because you're so annoyed with one side or the other, or because you feel so bad for your clients. There's got to be so many different bits of hormones and adrenaline and and guilt and things like that, depending on the case, how do you isolate that? It's very difficult to do. I don't know that you ever really want to in some ways.

I mean, I think you've got to be authentic. You have to try to control it. Kareem Abdul-Jabbar used to talk about not having too many highs and too many lows and trying to keep you somewhere grounded. And I always thought that was great advice. Probably got that from John Wooden. The Daniel Schaver case comes to mind

when I think of the emotional element here. I mean, Daniel Schaever, for those listening, this is a 26-year-old guy. He's in Vegas, and he's, I think he's killing rats with a pellet gun or something, and someone calls the police. Yeah, he's killing pigeons at part of his job. Right, and he...

Killing pigeons at Walmart from 4 to 6. In the morning, because he's got, or vermin or something. He basically, he's an exterminator, and he gets to use a pellet gun, he's 26, and he's, it's all on this body cam video, and he's in the hallway, and he's saying, please don't shoot me.

And the cops yelling at him. And he's saying, put your hands in the air. Then he's saying, crawl towards me. Then he's saying, put your hands in the air. And this guy is confused, and he's begging for his life. And then suddenly they just opened fire with assault rifles and shoot him five times. And it turns out he didn't have a gun. And he was totally compliant.

And then, you know, it just makes, that kind of thing just makes me so angry. I just start tearing up. I'm so enraged by stuff like that. I'm not even an emotional person. And I just, I don't know how I would retain. composure, especially when you've got this case lined up against you where all of these other people, the trainers and things are testifying. And it's just so clearly on video that this was inappropriate. There's just no getting around it. There just isn't. I'll tell you, one of the,

I mean, you set that up completely accurately. And one of the most difficult times I've ever had is that was a criminal prosecution for murder against the cop. And they would, not let the video out. When I say they, the prosecution, the defense, the judge, and I knew the reason why, because if they saw this video, there's no way this cop would ever be acquitted. And the cop, so they played that video, and Lainey, who is the widow, who I, is my client and who I adore, and it's like to become a daughter to me and her two daughters are just little angels. Lainey and I sat in that courtroom and she had watched it one time without me before, the day before, and then we watched it together. And she literally went into convulsions as she watched it.

And I bear hugged her in the courtroom as she was convulsing. And it was one of the worst experiences I've ever had watching that video that people have seen now. And knowing the family is one of the most disheartening. things. I plan on getting civil justice for them, but civil justice ultimately at the end of the day is just money. And what good does that do? This guy was acquitted. He's now trying to get his job back. The guy who's screaming on that video should have been prosecuted. And I still hold out hope that the feds will do the right thing and come in and prosecute both the guy who was screaming on the video, escalating the situation and the shooter because the two of them, if that is what they think

law enforcement should be doing, my retort to that is if that had happened overseas in a war zone, it'd be an international war crime. Absolutely. I mean, this video, at your own risk, if you Google the Daniel Schaver BodyCamp video, I mean, this is something that is just so traumatizing because I love police officers and law enforcement, and I believe strongly that they're often almost always doing the right thing. They're trying to protect themselves. It's a very dangerous job. This video really finds these two bad apples and just goes, look what these guys did. And you can do all the

gymnastics that you want, and you still can't justify what you're seeing in this video. You just can't. You cannot do it. There's no way. Only if you, you know, what they excluded on the, from the jury hearing is inscribed on this guy's gun is the term you're fucked. And they didn't let the jury hear that because they said it was irrelevant. And I'm saying to myself, well, the definition of murder is malice aforethought, which is your mental state, a dark or corrupt heart, a malignant heart. What better evidence of somebody's state of mind is that his own personal AR automatic gun is inscribed with your fucked. Yeah, I mean, this, and he had already been terminated for other

kinds of misbehavior, and it's just, I understand keeping things from a jury that are going to be emotionally charging if they're not relevant to a case. Volkswagen, they excluded some video of testing emissions on monkeys, because it really is disgusting, but it wasn't necessarily germane to the particular use of a defeat device in the emissions test. But this kind of this kind of evidence, the body cam, I mean, I'm sorry, I pay for that. I'm a taxpayer. That's my body cam. And this is a public authority. Yeah, and explain to me why the public isn't entitled to see that, especially after it was admitted as an exhibit in the court. And there's only one explanation because they know if the public had seen it, this guy never would have been acquitted.

Yeah, it just seems, I just don't understand things like that. How does it feel, this was probably a stupid question, I don't care. How does it feel when you lose a case like that that is so obviously a slam dunk in the first place, like the execution of Daniel Schaver? I felt bad for the prosecutor in that case. I wish I had tried that criminal case. I wish they had made me a special prosecutor. I mean, I like Susie, who was Charbel, who was the prosecutor. She tried, but I'm not going to lose the civil case. That's good. One less thing that she has to worry about taking care of her kids with losing her husband in such a way. I mean, that video is so traumatizing. I'm just not over that at any point. My wife and I made the mistake of watching it.

You never will be. I'm telling you, it's just, it's awful. So before we wrap, I do, I do have to ask, who is your favorite client? Is that even a fair question? Is that something that you can, is it like picking your kids? You know, that's a, that's a tough, that's a very tough question, because I really like a lot of my clients, really like a lot. I, Chris Brown to me is like a son. Susan McDougal is always going to be special to Mia St. John, who had the horrific, I represented her and Julian St. John on the death of their son. Mia is a good friend, and I communicate with her frequently and just adore all the good work that she's doing, arising out of the tragedy of her son's death. And I can think of, I can, I've represented, thinking of one client, he probably wouldn't want me to mention his name.

I've tried probably five jury trials for him years ago, but he's become a very good friend as well. I mean, I've been blessed that way to have spectacular clients. Yeah, Chris Brown owes you one, too. How long until he drops your name on a track, or has that happened already? He has. He has. Oh, okay, good.

He did a documentary and invited me to the premiere, and he had quite a bit of me in it, and welcome to my life. And my son was the one who brought to my attention that he gave me a shout out on one of his songs. Oh, that's good. I felt like you're kind of being, it's like not winning a, not ever winning a Grammy or something. It's like, come on, you know, you help all these people out. You got to get some pop culture love, too. I love it. Has there ever been a case in the media that you just wish was yours? I think I would have, and I've talked to him about it, I wish I had tried Mike Tyson's rape case in Indiana. Why? I think if you asked Mike, he wishes he had had me trying to take it.

Probably. Yeah, probably. I didn't know Mike at the time. I've represented Mike on and off for a number of years, but mostly on civil type stuff. But yeah, that would have been the one case I wish I would have tried. Why did you want to take that case specifically? I think Mike should have won it. I think that was an injustice. Mike Tyson has got, you know, his ups and downs, but that was, I think, a miscarriage of justice. Mark, thank you so much. No, it was a good conversation.

I appreciate it. Thank you, guys. So, Jason, I got to admit some. I always knew Mark was smart. I always knew he was a good guy. But I was a little bit like, oh, man, I don't know, celebrity lawyer. It's not quite in my wheelhouse. How interesting is this going to be?

Because, of course, he can't say, here's all this inside information on all my clients, right? We couldn't go down that road. So I thought, what am I, you know, what are we going to get here? He wouldn't be that good of a lawyer if he was going to spill the dirt to just us. Let me tell you who's guilty. You know, that's not how that was going to go. And I saw that, of course, I knew that. but I'm so glad because he's clearly done a lot of deep thinking about all of this meta stuff

that I frankly wasn't sure he was going to be able to comment on at all. And that for me was golden. I'm really looking forward to being a regular on his show with Adam Carolla, reasonable doubt on the podcast One network, where we're going to be discussing a lot of concepts like nonverbal communication in the courtroom, and I'm going to take my expertise and sort of overlap it with his and that of Adam Carolla. and I'm going to be doing a regular segment there every single month. So I'm excited about that.

This was good rapport, you know? It would have been pretty tricky if I'd left this interview and he was like, what a shmoh. That wouldn't have been a, that wouldn't have worked out so well. That wouldn't have really, you know, bode well for your guest appearances on his show. No. But I've got to say, I've been watching Mark on TV since I moved to L.A. Like, back in the early 90s. And never would I ever have thought that we'd be doing a show with him.

But what a cool cat, you know? And, you know, I know you had the lawyer angle. But for me, him being a tour. manager for Susie and the Banshees way back in the day. I thought that was pretty cool. He got some, he got some super cool cred for me for that. I knew you were going to say something about that because I was like, what? This super educated smart lawyer guy has this weird punk rock streak, you know, where Jason was probably smoking a spliff and riding a skateboard hiding out behind the theater or whatever back in the day. I never took the pot, as they said. You never smoked the marijuana. I'm surprised.

No, I stayed away from the marriage you want to. It's really hard to skateboard and get high at same time. I wouldn't know. I think it's very interesting to know that you have somebody like this who's a lawyer and a high performer and has his rock and roll side. And you look at somebody like Joey Ito out there who was a DJ back in the day. It's like music, I think, is an underlying theme for a lot of these guys in their future. I think it's pretty cool. I played the flute. I'm not going to tell you what that got me. Mostly beatings. But, all right, whatever. I don't want to go down that road. It's too early to be this depressed. Great big thank you to Mark Ergos. If you enjoyed this one, don't forget to thank Mark on Twitter.

I'd love to hear from you via email or on Instagram. I'm at Jordan Harbinger on Instagram. That'll, of course, I'll be linked up for the show notes for this episode, which can be found at Jordan Harbinger.com. By the way, of course, I've changed contact info. I am now Jordan at Jordan Harbinger.com. I can no longer get email at my old email address. So you've got to reach out.

If you've reached out to me in the past month or two, Jordan at Jordan Harbinger.com is where I'm at now. not get your message in the old place, most likely. But like they say, onward and upward. By the way, a lot of you had hit me up on social media and asked what's going to happen with the Friday episodes where we give feedback to you. We're still going to be doing feedback Friday, as opposed to what we had been doing before, but feedback Friday. And you have to send, unfortunately, if you emailed the old email address, that is just, I don't know what's going to happen to that. So you can email our new inbox Friday at Jordan Harbinger.com. Friday at Jordan Harbinger.com.

And we'll be taking your letters there, and we're going to have something new for you this Friday. This episode of the Jordan Harbinger show was produced and edited by Jason DeFilippo. I'm your host, Jordan Harbinger. Share the show with those you love and even those you don't. We've got lots more in the pipeline, and we're excited to bring it to you.

In the meantime, do your best to apply what you hear on the show so you can live what you listen. And we'll see you next time. This episode is sponsored in part by What Was That Like Podcast? If you're looking for a new show to add to your rotation, something that'll make you stop mid-dishwashing and go, wait, what that actually happened?

You got to subscribe to, what was that like? It's real people telling the most surreal moments of their lives, and they're not just giving you the highlights. They're walking you through it from the inside as the person who actually lived it, which means you're basically getting a front row seat to the chaos. One episode is about Scott getting locked up in a foreign jail for a crime he didn't commit. Sure, Scott.

Another is Sue's parachute failing. Wow, I'm surprised she was around to tell that story. And then there's Michael who was stabbed on a bus, which makes your commute instantly feel a little bit more relaxing. Do what you think? So if you want to hear some wild and inspiring firsthand stories, I invite you to check out what was that like. Every story is verified.

Their site even has photos so you know even the most bizarre stuff you're hearing is somebody's real life. Listen to what was that like on Apple Podcasts, Spotify, or whatever app you're using right now. This episode is sponsored in part by Something You Should Know podcast. Finding a new great podcast shouldn't be this hard, so let me save you some time. If you like the Jordan Harbinger show,

you'll probably like Something You Should Know with Mike Corrid. others. It's one of those shows that makes you smarter in a practical, useful way. Same curiosity vibe we go for here, just in a fast-focused format. Mike brings on top experts and asks the exact questions that you'd want to ask, and the topics are all over the place in the best way. Recently, they've covered things like why we care so much what other people think, the benefits of laughter, why sports fans get so invested, and what makes people like you or not. The through line is always the same. Smart ideas you can actually use in real life. Something you should know

has been featured in Apple's shows we love, and it's got thousands of five-star reviews because it's consistently interesting. So if you want another show that scratches that I want to understand how people in the world really work, itch, search for something you should know wherever you get your podcasts. Look for the bright yellow light bulb and start listening. You can thank me later.