The Megyn Kelly Show - November 01, 2026


Cornell 7 Case: Criminal Defense Attorney and Sex Crimes Prosecutor Weigh In: In The Well

Sandra Birchmore’s Injuries, Christa Pike 911 Calls, and Virginia Man Tried for Murder of Wife, with Vinnie Politan: The MK True Crime Show

Episode Stats


Length

49 minutes

Words per minute

175.35

Word count

8,748

Sentence count

464

Harmful content

Misogyny

6

sentences flagged

Toxicity

33

sentences flagged

Hate speech

8

sentences flagged


Transcript

Transcript generated with Whisper (turbo).
Misogyny classifications generated with MilaNLProc/bert-base-uncased-ear-misogyny .
Toxicity classifications generated with s-nlp/roberta_toxicity_classifier .
Hate speech classifications generated with facebook/roberta-hate-speech-dynabench-r4-target .
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00:01:00.000 As you know, I love true crime. And here on the MK Show, we like to bring you the latest law and
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00:02:34.500 Welcome to In the Well. And I couldn't be more pleased. No offense to Ashley or Lauren or
00:02:40.760 Alexandra. I've been waiting for Matt Murphy to get off of. And I mentioned this, Matt.
00:02:46.800 I remember in middle school having to watch The Endless Summer.
00:02:53.600 Why, I don't know.
00:02:54.640 But they used to play it in the auditorium in public school.
00:02:58.100 And I feel like you've been on The Endless Summer.
00:03:00.640 Welcome back.
00:03:01.260 I've missed you.
00:03:02.200 I purposefully did not call you, even though I said I would when we were texting,
00:03:07.140 because I had so much pent-up demand.
00:03:09.940 You know, I leave you for like two weeks, Mark.
00:03:12.320 And I leave you unsupervised.
00:03:13.880 and then you're like you're releasing evidence you know we had i thought we had an agreement
00:03:19.540 that when we were going to illegally release evidence we'd only do it on our show um because 0.76
00:03:24.280 god knows harvey levin depends on you for releasing evidence i leave you unsupervised and all hell
00:03:29.960 breaks loose you're the one that's supposed to be supervising me mark not the other way around
00:03:34.300 right i know that's it's funny how life has changed and and uh if you believe harvey uh he's
00:03:40.860 carrying me and blah, blah, blah. Matt, I have missed you. You took off at the exact time when
00:03:49.300 your insight is the most valuable, because you might remember, I've used this, I use the kind
00:03:57.220 of internal calculation. What would Matt Murphy do? And that's the, you know, in terms of a
00:04:03.260 prosecutor, what would Matt Murphy do with, of course, what we're talking about is Cornell 7?
00:04:10.040 Well, gosh, Mark, first of all, before we even get into that, let me be that boring guy at the office around the water cooler.
00:04:16.740 I got to show you some vacation photos.
00:04:18.840 So for the audience.
00:04:19.600 Can you show the one of you with that coming right down?
00:04:26.320 Yeah, I think we got it.
00:04:28.340 Natasha, can we scroll through some of these?
00:04:30.760 I want to share with the audience, get my surfer credibility in.
00:04:35.380 So for the group, what Mark's talking about, I went to Indonesia.
00:04:38.240 I've got an annual trip with a bunch of guys.
00:04:40.260 We go to Indonesia every year.
00:04:43.080 And this is our 23rd trip, Mark.
00:04:45.940 And I can't believe we've done it this many times.
00:04:48.740 But we go annually, that's 23 years, 23 years with the same group of guys.
00:04:55.180 I love them.
00:04:55.920 I miss them when I'm not with them.
00:04:57.620 And what we do is we charter a boat and we go out and we surf some of these.
00:05:01.100 There it is.
00:05:01.800 Yeah.
00:05:02.080 So that's that is a place called The Hole that's off Sumatra.
00:05:08.240 And we can scroll through these.
00:05:12.340 So this is, we go out on the boat in the very first day.
00:05:16.720 Yeah, here's some others.
00:05:18.240 These are the highlights.
00:05:20.180 This makes me look like a far better surfer than I actually am.
00:05:23.700 I was going to say, you look like you got some game there.
00:05:26.200 Yeah, and one of the guys on the-
00:05:27.760 My favorite.
00:05:28.620 Natasha, is there a way to zoom in on his face on a couple of these?
00:05:32.380 Because there's some real determination on that wave.
00:05:35.800 Yeah, on this one, I think it's pure glee.
00:05:38.240 um it is it is on that that day was as fun as it looks um but i gotta i gotta share this story
00:05:45.540 with you mark so we're out the very very first day we're at a place called bin tangs and bin tang
00:05:50.420 okay that's my buddy mike dinicola he's a um that he's a professional artist and he used to surf
00:05:57.100 professionally mark so i'd surf with my buddy mike and it's equal parts like i'm learning
00:06:02.500 watching him he used to surf against kelly slater he's a good friend of kelly slater's
00:06:06.880 And he's Kelly Slater level.
00:06:08.680 I am not Kelly Slater level.
00:06:10.860 So every time I surf with Mike, I am inspired.
00:06:13.840 I'm in awe.
00:06:14.740 And I think I should probably quit surfing because we're only like a month apart age-wise.
00:06:19.700 He's got all the talent in the world.
00:06:21.420 I've got no talent.
00:06:23.060 I've got middling skill.
00:06:24.920 But it's just an awesome trip.
00:06:26.360 So we go out.
00:06:27.400 Mike and I are surfing this place called Bintangs, which is the beer of Indonesia on the very first day.
00:06:33.140 and there's critters in the water in indonesia or tropical places like you see sea turtles that'll
00:06:39.300 like pop their head up and every once in a while see like a little shark fin swim through and we
00:06:43.760 saw something that looked weird i thought it was a turtle and it keeps popping up there's a we did
00:06:48.540 a little scuba diving too um and my buddy jeff uh who's very experienced surfer um he's like guys
00:06:56.060 i think that's a crocodile and i'm like it's a sea turtle jeff and play this saw the next shot
00:07:02.180 mark is gonna mark is gonna love this
00:07:04.180 oh wow so that that's at a place called uh we're surfing lance's left um that's at a place called
00:07:17.580 lance's right right around the corner and it turns out it's a 14 foot saltwater crocodile
00:07:21.960 it's about 30 feet away from us and i'm like oh it's a cute little sea turtle jeff's like no man
00:07:26.880 it was a crocodile and we didn't believe him so anyway i survived that i'm back and well i was
00:07:32.740 you know you almost opened yourself up i thought you were going to shark and then there was going
00:07:37.720 to be a whole professional courtesy joke a lawyer joke lawyer who serves and sees a shark i you know
00:07:44.080 i don't know how crocodiles feel about lawyers uh mark but i got some of the stuff that's happened
00:07:49.800 while i was gone i've got some pretty strong feelings um well let's just start by the way
00:07:54.920 with what we're referencing is this um well you start you start i won't even i won't even ask a
00:08:04.260 leading question while you were away matt anything strike you how's that oh oh my goodness um so we've
00:08:12.320 got this this case the cornell seven case and what mark's referring to for the audience is i
00:08:16.840 before i went to homicide i worked in the sexual assault unit and um sex cases it's a it's a real
00:08:23.940 niche in criminal law and a niche among niches uh would be what we would would have referred to
00:08:30.400 back in the day as date rape or acquaintance rape where you have like vague issues of consent and
00:08:35.140 alcohol and people that um are facing potential remember that case matt because the case back i
00:08:43.700 think around 2000 2001 where i think it was starting the juvenile court where california
00:08:49.300 basically said that that consent really lowered the bar on consent and in terms of what it required
00:08:57.760 but you're so right you were the i used to call you the for those who don't know matt and i had
00:09:03.720 many of those cases uh and i used to t my one of my favorite jokes is matt would have filed
00:09:11.400 criminal stalking charges on romeo if he had been around when juliet was there so probably would
00:09:17.520 But then the problem is Mark would have talked me out of it, as Mark did plenty of times when I'd come in.
00:09:23.800 And it's like, God damn it, I know that Mark is going to say something on this one. 0.96
00:09:28.520 I'm going to hold firm. 0.98
00:09:30.240 And then Mark would speak reason.
00:09:32.400 And we were almost always able to work out a deal if you got people that are being reasonable.
00:09:38.680 OK, and that's another thing about.
00:09:40.380 So these cases would actually be presented to me for many, many years where you sit down with a detective
00:09:45.100 And you talk about the potential for a criminal conviction and the ethical standard for filing.
00:09:52.560 A lot of people don't know this for a prosecutor is, number one, you must have subjective certainty that the person did it.
00:09:58.640 And number two, you must have a reasonable belief that you can convince a jury beyond a reasonable doubt under the law of whatever state you're in.
00:10:06.520 Okay. So the first thing that you have to do as a prosecutor, and I kind of want to walk through this Cornell thing, is you must divorce any decisions from your emotions. Everybody's against rape, at least anybody in a prosecutorial capacity. Everybody's against sexual assault. Everybody thinks that behavior, like especially some of the stuff we saw in some of these text messages, is abhorrent.
00:10:29.320 um we're all there okay but you have to divorce emotion and you have to coldly and methodically
00:10:37.080 go through the evidence in a case like this and and think did these young men commit sexual assault
00:10:43.020 and step two is the evidence strong enough to convince a jury beyond a reasonable doubt and
00:10:48.380 if the answer to either one of those questions is no then you cannot and should not ethically
00:10:53.460 file a case like that. Okay. So by the way, just to highlight is you and I've talked about this
00:11:01.400 countless times, but I'd be remiss if I didn't mention it. The prosecutor has a different
00:11:07.500 ethical North star than the defense lawyer. And you want it that way. Our system is predicated
00:11:15.220 on that. You want a prosecutor who, like Matt, if they don't really, truly look at the evidence and
00:11:24.540 say, I can get a conviction beyond a reasonable doubt, I have that kind of mindset, then I'm
00:11:32.380 going to walk the kind of public blowback be damned. Isn't that correct? As opposed to a
00:11:39.160 defense lawyer who is public blowback, blowback be damned. I'm here to zealously defend my client.
00:11:48.020 It is perhaps the most important job of any prosecutor, Mark, and that is fundamental
00:11:53.600 fairness. And a lot of times that means standing up to an angry mob and you have to make that
00:12:01.580 unpopular decision. And one of the units I rotated through in my career was I went through the gang
00:12:08.620 unit for a brief time before they moved me on to the felony panel. And Mark, you'll remember this,
00:12:13.500 there was a thing called the Target Program, where what they would do, law enforcement would target
00:12:17.460 gang leaders. Got such a good memory. As soon as you said that, I knew where this was headed.
00:12:22.680 Yeah, look, and I was 100% for that. And you'd see these older gangsters, the ones that were
00:12:27.340 the real psychopaths, and they would recruit the younger guys. And they were an absolute cancer to 0.99
00:12:33.100 the communities in which they lived. And I supported the Target Program.
00:12:35.680 The system created that.
00:12:38.400 You want to explain how?
00:12:39.680 That's right.
00:12:40.220 The California state legislature passed Penal Code Section 186, or the Street Terrorism
00:12:45.240 Act, where they would basically go after gang leaders.
00:12:48.260 And I'll tell you, it worked.
00:12:50.280 But when you're a prosecutor, using that two-step process that Mark and I were just
00:12:55.480 talking about, sometimes you would have really enthusiastic detectives, and you'd have a
00:12:59.920 really bad guy, legitimately really bad guy, and they would put, sorry, I got to swear 0.71
00:13:05.180 here a completely bullshit case on your desk and you know and and i and say and you look at it and 0.98
00:13:11.960 be like what is this piece of crap i'm not filing this and they'd get and this is important for the 1.00
00:13:16.620 case they'd go yeah but this guy's an asshole and i cannot tell you mark how many times i butted 1.00
00:13:22.260 heads with detectives the yeah but this guy's an asshole thing is not an element to a crime you 0.99
00:13:27.800 don't get to introduce that that doesn't come in as big of an a-hole as that guy might be or in this 0.97
00:13:34.120 case as as abhorrent as the behavior was you know and mark just quick war story i had one case that
00:13:40.120 stands out remember those carl's jr little plastic numbers you you you place an order at carl's jr
00:13:45.820 and for our east coast audience it's a that's a big burger chain in california carl's jr you you
00:13:50.960 make your order and they give you these plastic number thing then you put it on your table and
00:13:54.560 your order's ready so like number 47 they did a probation search on one of these gang leaders and
00:13:59.460 they wanted me to file a 496 for the audience. That is a felony possession of stolen property
00:14:04.680 on a plastic frigging Carl's Jr. tag. And I'm like, I am not, I can't do this with a straight
00:14:10.600 face. And I got the, yeah, but this guy's an asshole thing. You can't file a case because 1.00
00:14:14.820 somebody is an asshole. You can't ethically file a case because somebody is an asshole. 1.00
00:14:18.820 The first cousin of that, of the, yeah, but he's an asshole is the, if he didn't do this, 1.00
00:14:24.080 he did, we know he's good for something else. Right. And that's called injustice, 1.00
00:14:27.880 Right. And that's another thing. Nietzsche has one of my favorite quotes, Mark. You've heard me quote him many times on this. Those who endeavor to fight monsters must be careful lest they become monsters. And fundamentally, when we're talking about campus rape, the idea that some guy could rape a woman on campus or anywhere else and get away with it. What gets us is the injustice of that. It is fundamentally an injustice. That's what gets our blood boiling. It's not fair. It's not right.
00:14:53.120 And I dedicated my professional career, guys, to going after sex offenders and protecting victims of sex crimes.
00:15:01.040 OK, but when you when in the idea of going and fighting injustice, as soon as you start abandoning due process or fundamental fairness, you are now creating injustice in the idea of fighting injustice.
00:15:17.660 And in Nietzsche's view, in other words, to go fight monsters, sex offenders, you have now become a monster.
00:15:23.820 You are now generating injustice. And that's that's not the way that this can work.
00:15:28.100 Remember the LAPD Rampart scandal. That became the whole theme for LAPD Rampart is that while fighting the monsters, and that's why all of a sudden people were getting phony, you know, evidence put on them, having all kinds of, you know, people were aghast at it.
00:15:51.240 And the argument always was, how could this happen? How could this happen? There's gambling here in this establishment. You put your finger exactly on it. When you don't rigorously apply the standards that you have to is when you get to these kinds of basically bowing down to the mob.
00:16:11.700 And you cannot bow down to the mob. Mob justice is injustice every frigging time. It's like my cop case that I just did in L.A., Mark, where Black Lives Matter, it's like, OK, we had a white police officer who shot a black man who turns out it wasn't a firearm. 0.83
00:16:26.440 OK, but the idea that we're against that, we're against police officers unfairly shooting people, that doesn't mean that then you go convict an innocent man because we're against it.
00:16:37.060 Because we're against campus rape does not mean that you can prosecute a case when the evidence does not establish proof beyond a reasonable doubt.
00:16:46.220 So I'm going to drill down on that even more, because what was driving me crazy in your absence, and I may have even invoked you, and now we'll see how well I know you after 35 years.
00:17:00.620 I said, the idea, and who am I to, you rarely, do you rarely see me taking up for a prosecutor?
00:17:10.340 I don't know.
00:17:10.880 I mean, this Thompson County, I don't know the Tompkins County prosecutor from Adam.
00:17:15.680 I don't even think I could pick him out of a lineup. But can you imagine I used to say I've told this to so many people, the the somebody coming in, a cop coming in, having a robust investigation to begin with, or at least just getting the text messages and having a text message where the purported complaining witness is saying everything we did sexually was consensual.
00:17:39.820 a real-time text message that says that i can you imagine matt murphy saying yeah i'll just put that
00:17:46.640 aside because she could evolve it around that later on i mean you know no it's look let's and
00:17:53.060 let's let's look at it he's gotten so much he i saw an interview between him and jake tapper
00:17:57.900 where jake tapper clutched his pearls and said i have a daughter and i can't believe you didn't do
00:18:02.740 more. I have. How angry did that make you? I've got a daughter. I've got granddaughters. And Jake
00:18:10.160 Tapper was so ridiculous in that interview that me, who never misses an opportunity to slam a 0.95
00:18:18.800 prosecutor, as you well know, I was like, in sense. In fact, I don't know why he didn't get 0.96
00:18:24.560 more in sense. That's all right. And the DA, and I can't even remember his name. He handled that
00:18:31.000 pretty well. And he said, I'm bound by New York law. Okay. So let's, let's talk about that just
00:18:36.000 for a second. What was he presented with? He had a six page statement sworn under penalty of perjury
00:18:40.840 where this woman described a crazy night where she engaged in consensual sex, according to her
00:18:47.540 with several young men. And her concern essentially was she believed that she had voluntarily consumed
00:18:54.200 so much ketamine that she wasn't capable of properly consenting. Okay. And this is important
00:18:59.340 for everybody to understand under new york law voluntary intoxication is a significant factor
00:19:05.800 in determining whether or not an uh an intoxicated person can be raped california has a different law
00:19:12.720 but but and and whether i bet new york winds up changing their their their code on this work i
00:19:18.520 wouldn't be at all surprised always just well remember point out that case remember the case
00:19:23.100 at stanford that is a good way to put exhibit a exhibit b california new york yeah and look and 0.90
00:19:32.460 personally i think that that a woman who is voluntarily intoxicated to the point of 0.72
00:19:37.140 unconsciousness it should not be a defense if somebody takes advantage of that and then rapes
00:19:41.100 her that's the way it is in california and and mark i've argued those before and just so the
00:19:45.620 viewer i was just gonna say matt i see if they for those who don't aren't in the weeds on your
00:19:52.720 history. Matt was truly in Orange County, a take no prisoners, sex crimes prosecutor before he
00:20:00.820 became kind of everybody knows you as the homicide guy. I know you as that young,
00:20:07.480 swashbuckling, you know, good looking prosecutor who I hated to have on my cases because
00:20:13.540 dashingly good looking. Yeah. Trial was always a problem. I'd have to bounce every eligible,
00:20:20.340 and their mothers. 1.00
00:20:22.480 No, but no, that's right. 0.75
00:20:23.660 Look, I've prosecuted date rapes before.
00:20:25.780 I've done numerous date rapes.
00:20:27.960 I did 17 trials while I was in the sexual assault unit,
00:20:31.000 and several of those were, in fact, date rapes.
00:20:34.320 I've lived this.
00:20:35.680 I have listened to the victims.
00:20:36.860 I understand how this works.
00:20:38.000 And I'm going to go even a little bit farther, Mark.
00:20:40.840 Back when I was at UCSB, I joined a fraternity.
00:20:45.300 And I stumbled in as a fall quarter freshman.
00:20:48.740 and the you know i'm going to talk about this at the very end of our show today but i lived in my
00:20:56.100 fraternity for four years and um you know the fraternities right now are so they're getting so
00:21:02.320 much heat and a lot of people that walk by a fraternity party during college who are now on
00:21:07.800 cnn bashing fraternities my fraternity started a date rape education program called greeks against
00:21:14.480 rape um my my sophomore year mark and and i'll go into that a little bit more but the idea that
00:21:22.480 fraternities are are somehow this like all these guys twisting their mustaches next to a rape a 0.83
00:21:30.260 rape petri dish right then it's a rape petri dish there in fact they are the exact opposite and i 0.89
00:21:35.380 and i will debate it anytime with anyone i lived in my fraternity house for four years they're some
00:21:41.220 of the best people I've ever met in my life. We raised money for the Make-A-Wish Foundation and
00:21:46.540 for handicapped kids. And we kept the Galita Valley Boys and Girls Club afloat. And we coached
00:21:53.640 Special Olympics. And among the things, my fraternity created a program where we basically,
00:22:01.040 we realized, and let me just back up again, Mark. When I was a fall quarter freshman, we had a woman
00:22:06.220 from the UCSB Women's Center who came in and to speak to the students about rape on campus.
00:22:11.880 And she was angry and she was, you could tell that she did not like men. And she began basically
00:22:19.460 by telling us some of the statistics and scolding every man in that room for essentially being a 0.98
00:22:25.100 de facto rapist. And when she saw my pledge pen, I was the devil in that room. And Mark and I, 0.97
00:22:31.960 look, Mark, you and I communicate for a living, right? Our job is to stand up in front of juries
00:22:36.860 and have people have an open mind and follow the law and explain what the evidence and the facts
00:22:43.340 were. And if you want to shut down a group of people, start by saying, hey, you're all a bunch
00:22:47.440 of rapists. Now let me tell you why. Okay. So what we did is we approached it from a different 0.99
00:22:54.240 perspective. This is the date rape education program at UCSB. It was, we're going to gather 0.55
00:22:59.440 They're all the incoming pledges for the sororities and the fraternities.
00:23:02.940 We're going to sit all these young men and women in a room that are all going to be getting drunk and partying together and have an honest discussion about communication when when you know when you're drunk and horny, like clear communication, understanding what's happening.
00:23:18.520 And then we'd also explain to these young men what the definition of rape was and how if you go beyond the word no or you're with somebody who's too intoxicated to affirmatively consent, that not only is that rape, to remove any ambiguity of that, but you're going to bring dishonor on your entire fraternity.
00:23:37.360 There will be guilt by association like we've seen in this case, and you will bring every single guy that has trusted you with the pin on your chest into disrepute if you cross that line.
00:23:49.580 And it was a huge success.
00:23:52.200 It started getting adopted by other schools.
00:23:54.200 I worked with Tom Hayden, famous one of the Chicago 8, Jane Fonda's husband, who's in the California State Legislature.
00:24:00.020 I didn't know that. Tom brought me the founder of Homies Unidos many years ago, and we were able to successfully get him out of immigration custody. We talk about a different era. But Tom was very ahead of his time, I guess.
00:24:18.220 He was ahead of his time. And it didn't pass the California state legislature then. I bet it would now. But the idea was like, let's have a constructive education program for incoming students for all UC and state schools. Okay.
00:24:30.280 so that that was good though i have a question though in from the framework of cornell seven
00:24:35.920 because as you're talking about this i don't know if you've seen this week when this lawsuit was
00:24:42.940 filed kind of everybody was named including the president of the fraternity and you see
00:24:49.720 i know where you're going on this it drives me insane how and i'm sorry guys for the viewers i
00:24:56.180 I I'm told not to swear so much. I can't help it. How do you fuck that up, Mark?
00:25:01.920 You have a responsibility as a prosecutor or filing civil cases. 0.99
00:25:06.280 I have filed sexual abuse, civil cases as a plaintiff's lawyer before you have a responsibility before you name somebody in a complaint to do a modicum of due diligence before you ruin the life of a young man.
00:25:20.840 And for the audience, what Mark is talking about.
00:25:23.720 Matt, at the same time that you're arguing, cloaking the accuser in anonymity, you are identifying and misidentifying young men and ruining them. 0.71
00:25:37.140 Just think about the the amazing hypocrisy, the amazing incongruence and where and how you have to divorce yourself from any North Star in order to proceed in that fashion.
00:25:52.120 It is, Mark, this is my opinion here, that conduct represents the worst of our profession, where you are going to willy-nilly, slipshod, throw a name on a complaint like this. 0.92
00:26:04.020 You're going to destroy a young man's life.
00:26:05.860 And by the way, being the president of a fraternity, so the viewers understand, it is the most searchable, obvious, easy thing to find.
00:26:13.620 Who was the president of the Chi-5 fraternity in 2024?
00:26:19.680 And there's composites.
00:26:21.100 Mark, every fraternity has an annual composite. It's like your book where the president is right in the middle and their name is right underneath it. It is it is inconceivable to me that you would not check that before you accuse somebody of being responsible for a vicious gang rape.
00:26:39.100 It is, I can't wrap my head around it. It is not okay. And even, I love our colleague,
00:26:45.580 Jonna Spilboer. I agree with almost everything she says, but she was like, oh yeah, it's a
00:26:49.680 mistake sometimes happens. It's the only time I've heard Jonna say something that I disagreed with.
00:26:53.620 And I, I cannot tell you how strongly I disagree with that. And this is the same guy and I'm sorry,
00:26:59.200 he's a frigging clown. This, this plaintiff's lawyer is a clown. He accused my partner, 1.00
00:27:04.260 mark garagos of leaking information to to to harvey levin on tmz as if tmz needs sources
00:27:12.920 right he he did that mark with no basis it i was well it's actually what's offensive is it's
00:27:20.240 almost sexist he did it because of my daughter no and he's trying to fight he's trying it's like 0.96
00:27:26.080 he's trying to use you to get to your daughter that is a that is a scumbag move i'm sorry i 0.92
00:27:33.120 don't know this guy but i i i cannot believe he did that and another thing mark he is now on this 0.56
00:27:39.540 gag order thing that he lost i saw an interview the day before i left between him and again jake
00:27:45.380 tapper where he's talking about the the the title nine investigation um that and then he came out
00:27:52.600 and said i'm i've only been responding to what the defense said that is a demonstrable falsehood
00:27:57.860 that is not true. And I'm watching this from 10,000 miles away, Mark, like looking at my
00:28:03.100 computer, just going, I cannot believe that this guy is so ballsy that he's accusing you with no
00:28:08.240 evidence, trying to say, trying to link that to Tenney. How many people did they interview in
00:28:13.900 this Title IX thing? Like over a hundred people, Cornell. And by the way, going back to the
00:28:19.440 prosecutor's job of reviewing this, one of the things that came out in the Title IX investigation,
00:28:27.260 and this is a huge deal. In her statement, she accused two of the young men of doing ketamine
00:28:32.340 off of her body. And during the Title IX investigation, they did a pretty thorough
00:28:38.780 job here, Mark. Part of the evidence in that is those guys said that's not true, and they
00:28:44.100 submitted themselves to a hair test. And for the viewer that doesn't know, the way ketamine and
00:28:51.100 other drugs is metabolized in the human body, there will be searchable elements of that found
00:28:56.880 in hair and root root or retrospectively yeah that's right you can go back months
00:29:06.720 and both of these guys said that's not true remember what's her name shaved her head
00:29:11.540 remember search yeah search my hair right and they did and they were able to conclusively prove that
00:29:17.840 that part of the statement is not true that's a fact that was not available to the prosecutor
00:29:22.160 or when they refused it, from a prosecution perspective, once we, again, divorcing all
00:29:28.200 emotion, taking a step back, this one is not even a close call, guys. And the idea that Tish James
00:29:34.700 in New York would come in, and I'm going to offer one tiny bit of criticism here towards a legal
00:29:40.660 move that your daughter made, Mark. And I know this was well thought out, but Tish James was
00:29:45.460 appointed by Kathy Hochul. So this has become overtly political. Another thing that nobody
00:29:51.220 talks about is there's an ethical prohibition in the model rules. You cannot base any criminal
00:29:56.680 prosecution on political considerations. It's black letter ethics. And nobody seems to have
00:30:03.540 a problem with this in the state of New York. I don't get it. You cannot politically charge people
00:30:09.200 with a crime if politics are playing a role in the prosecutorial decision. Okay. So Tish James
00:30:14.420 already made a series of statements saying I'm with the victim and I've got another problem with
00:30:19.280 that too but but before we even get to that she has already like announced a bias before she is
00:30:25.620 in any official capacity has had an opportunity to review the investigation or the files
00:30:30.660 so so tenny your daughter filed a very proper motion um to have tish james removed this is my
00:30:40.680 strategic problem with that mark i had a case where i represented a group of women in a very
00:30:45.640 very similar thing involving a newport beach surgeon i'll leave his name out um where i
00:30:50.600 represented five women pro bono as marcy's counsel so for the viewer that means i represented them
00:30:56.340 through the criminal process and the the orange county da i in a move that i totally disagreed
00:31:02.580 with brought a motion to dismiss that case i opposed it i won second time in california history
00:31:08.960 a judge they agreed with me and refused to dismiss a case based on a motion by the prosecutor
00:31:14.960 so that means that the california attorney general came in mark and i will and i'm here to tell you 0.55
00:31:19.800 they are utterly inept in sexual assault cases um and that they wound up getting like the the
00:31:27.320 process went on for two years they treated my clients like hell um they dragged them through 0.97
00:31:32.400 the mud it was an awful experience and that is because they were cohen's case yeah it was phil
00:31:38.380 cohen's case and as you can imagine phil and i went at each other okay for about two years
00:31:43.160 And he's like, he's a, he's a fine lawyer, Mark. He really is. He's a smart guy. We wound up on opposite ends of that one. But, but I couldn't, I couldn't, I couldn't prosecute the case myself. And I had to try to convince the California AG how to do this.
00:32:00.380 And I say all this because when Kathy Hochul appointed Tish James to this case, it sounds really heavy, right?
00:32:07.960 Like, wow, the New York attorney general is coming in as a special prosecutor.
00:32:12.180 Attorney general has this huge ring to it.
00:32:14.900 So for the viewer, it sounds like they actually know what they're doing.
00:32:18.260 They have no clue.
00:32:19.740 Tish James has never prosecuted one of these cases personally.
00:32:22.100 She has no idea how hard they are.
00:32:23.680 I guarantee you, Mark, all the king's horses and all the king's men, there is no lawyer in the attorney general's office of New York.
00:32:29.920 There is no team of lawyers in the AG's office in New York that has the competence or professional experience to successfully prosecute this case under prong number two.
00:32:38.660 And my only problem with with.
00:32:41.860 I'm going to I'm going to cut you off.
00:32:44.100 You know, you're absolutely right. 0.74
00:32:46.180 So guess what she's presently doing.
00:32:48.440 She was drawing that.
00:32:49.560 I've heard this.
00:32:50.940 Not from Tenney.
00:32:51.860 Well, yeah, there not from Tenney from.
00:32:55.100 It's a very small.
00:32:56.320 I often say New York is very parochial.
00:32:58.620 It's very small.
00:32:59.400 she's out there shopping for for independent prosecutors right now of course she is feeling
00:33:04.380 about independent counsel tish james is actively searching for an independent prosecutor as we take
00:33:10.260 this because of exactly your point there isn't a single person that i'm aware of that knows
00:33:16.840 yeah any like you've forgotten more than their collective office knows about sex crimes
00:33:22.760 prosecution they can't win it mark they cannot win it tish james can't win it she can personally do
00:33:27.840 or stuff so that was that was my strategic like oh i'm not sure about that when they because oh
00:33:33.240 you wait and see they've gone to the usual suspects i um i i can't you know what it's kind
00:33:40.040 of funny or ironic i i one of the people who they normally would go to i think is obviously
00:33:46.940 conflicted but i have a pretty good if i were on the prediction markets and not set for trial in
00:33:52.820 December defending Mr. Van Dyke, the American war hero, I would probably be on the prediction
00:34:00.000 markets and start a question, resolve whether Tish James appoints a outside independent counsel to
00:34:08.120 prosecute the Cornell 7 case for precisely the reasons you just articulated. Yeah. And that's
00:34:14.060 the thing is that a good judge would look at her statements ahead of time and say, yes, this has
00:34:17.700 the appearance of impropriety, which is the standard, and conflict her off. My fear there
00:34:23.320 is that then somebody with some game and some zeal might come in and present a much more formidable
00:34:30.540 opposition to that. I've got two minds for that, conceptually. If I believed,
00:34:42.100 and I'm thinking this through hypothetically, I'd love to get sure, but if I believed that,
00:34:46.980 look, it's clear to me that there is an appearance of impropriety. And I've noticed James, I know her socially, not professionally, but socially. And if I believe that her statements were dispositively an appearance of impropriety, which it just appears to be, I mean, you don't want somebody who comes in, as you said, kind of bowing to the crowd or taking a knee to the
00:35:16.980 mob as the knee is as the mob is coming at you if that's the case i would and i thought and
00:35:23.920 rightfully so that she would file come hell or high water because it's a political football
00:35:29.920 and then i would want an independent sex crimes prosecutor like a matt murphy
00:35:35.080 i had if i was pollyannish and i believed that there was a version of matt murphy in new york
00:35:43.300 I would want you to take the case because, as I've said with you in absentia, a Matt Murphy who looks at this case would not file this and he would take the heat.
00:35:53.080 But that's what worries you, I guess. Right.
00:35:56.860 No, no, exactly. Mark is look fairly evaluated.
00:36:00.500 The D.A. in this case. And that's another thing, like Jake Tapper saying, oh, I can't believe you didn't investigate it more.
00:36:06.120 This is the way it works, guys. The police investigate the prosecution reviews it.
00:36:12.060 also that statement it's my understanding she had it was a female detective that interviewed her
00:36:17.620 she was allowed to make a series of corrections she made over 20 corrections to the one this is
00:36:23.080 the the original six page affidavit i guess we can call it because it's signed under penalty of
00:36:27.980 perjury she was allowed a victim advocate during that and one of her friends to sit in there so
00:36:33.480 they didn't mail it in either they they got all this information from her i don't know how you
00:36:39.060 win that after that. And again, for the audience, before I start getting all the hate, I'm
00:36:46.960 approaching this from the position of what a prosecutor sees when it is presented them under
00:36:51.860 the ethical umbrella of when it is appropriate to file criminal charges and when it's not.
00:36:56.500 And another thing, for the viewer, one of the parts of being a sexual assault prosecutor that
00:37:02.480 is the toughest part is you see cases all the time. You see two different, I mean, you see a
00:37:07.360 lot of different kinds, but one is you see cases where you believe fervently that the person is a
00:37:13.760 horrible human being, that they even committed the crime, but you can't prove it, which means
00:37:18.500 you missed that second prong. You cannot file that case. And you know that this happens a lot
00:37:23.160 with little kids that when you refuse that case, it's the person may become a victim again. It's
00:37:29.340 hard. It is one of the hardest parts of that job. It's mind boggling to me, just the bad
00:37:35.500 information the misinformation the coloring of the what the real standard is the law is and
00:37:43.280 everything else and it is the frustrating thing about this to build on your point the this case
00:37:51.320 was people go well wasn't investigated you know the jake tapper clutching of pearls i love that
00:37:56.860 but have you ever seen as much material i mean there was more material and more investigation
00:38:04.080 done in this matter than there is in 98% of the cases that come across my desk over the last
00:38:13.260 almost five decades. Well, that's the thing, Mark, and you hit the nail on the head there,
00:38:16.780 because what the DA can do under a circumstance like this and what the DA has gotten criticized
00:38:21.060 for is not doing follow-up investigation. So when you have a case that lands on your desk,
00:38:26.620 there's three things you can do. You can file it, you can refuse it, and you can refuse it for
00:38:30.960 additional follow-up, or you can make a determination that the person's innocent,
00:38:38.180 okay? So the additional follow-up, Title IX here, they went through, Cornell did
00:38:42.800 an extensive investigation here, including review of all the text messages. And those text messages
00:38:48.900 are tough. And look, there are cases certainly where legitimate victims of sexual assault will
00:38:55.360 come back and they're hesitant to report. That happens all the time, where it's real,
00:38:59.540 The person really did it. But one of the things you also have to look for as a prosecutor, Mark, is you have to look for ulterior motives.
00:39:06.620 OK, and one of the one of the most common cases you see in sexual assault is you see custody disputes where there is a an uncorroborated accusation of sexual abuse against the dad.
00:39:16.640 Right. And right on the heels, right on the heels of the filing for divorce or the custody custody battle.
00:39:24.140 You see those all the time. I had an old detective, Don Howell, with Huntington Beach. He used to submit those on my desk, Mark, with a little yellow tab with R&R written on it. And it stood for read and reject because it's so clear. It's not true. It didn't happen.
00:39:38.720 It's funny you say that. I made a point while you were gone that it's so often one of the kind of, I think, axiomatic practices of criminal law. If your investigator does not want the case filed, the investigator knows what levers to push.
00:40:00.400 Oh, yeah.
00:40:01.060 And especially when you're working in a vertical unit, you have a relationship of confidence and trust with that detective.
00:40:07.080 And these are cases where, you know, like we – I am a huge victim advocate, guys.
00:40:13.740 I dedicated my career to this.
00:40:16.240 But there are cases that you either can't file because there just isn't enough evidence or sometimes you encounter ulterior motives and actual reasons to lie.
00:40:25.780 And so one of them is you've got a custody dispute.
00:40:28.240 Another big one, Mark, is when you look at the facts of this one, you get a civil suit, right?
00:40:33.360 And also, when you name the wrong guy as the president of a fraternity, ruining his life,
00:40:39.020 and you're so negligent in the way you do it that you ruin – he has been subjected to public scorn.
00:40:48.280 That young man, I don't know him.
00:40:49.540 I don't know any of his lawyers.
00:40:50.920 That is an outrageous thing to do.
00:40:52.500 It's not right.
00:40:53.300 It's not fair.
00:40:53.960 What else is incorrect in this complaint, right?
00:40:56.480 And another thing that nobody's talking about, in the official statement by the DA, he said that after refusing the case, the attorneys never came to him and asked for them to reconsider.
00:41:07.640 I was really surprised by that, that Jane Doe never came and asked for him to reconsider.
00:41:11.800 And I was surprised by that.
00:41:12.640 And you know this, Mark.
00:41:13.380 There's a thing called collateral estoppel for the viewer where because the burden is higher in a criminal case, as a plaintiff's lawyer, you always want the DA to prosecute it because once a fact –
00:41:24.000 Because it's a slam dunk.
00:41:25.140 It's a slam dunk.
00:41:26.080 once a fact has been proven in criminal court, it is presumed to be true for the purpose. They
00:41:32.280 are stopped from even arguing the opposite regarding the civil case. You automatically
00:41:38.340 win, and the only question then becomes a matter of damages. And Mark, that lawyer never went and
00:41:44.100 asked to speak to the DA. I was really surprised by that because it's such a tactical advantage on
00:41:49.740 that. And I think that they will probably toll the civil suit, well, this is investigated by
00:41:55.520 Tish James or whoever. But look, Mark, in my view, any fair prosecutor who reviews these facts
00:42:01.120 that isn't bowing to the mob is going to refuse it just like the D.A. did. This was a proper
00:42:06.240 refusal. And when you when you divorce yourself from the passion and the yeah, but they're assholes 1.00
00:42:11.900 and and that sort of thing, which a which a professional prosecutor ethically has to do.
00:42:18.500 I don't see how you ever file this because I don't see how you ever want it. I really don't.
00:42:22.960 Unless we drum up a mob, but I'll tell you what, Mark, I took it personally.
00:42:27.520 That guy took a swipe at you to get at your daughter.
00:42:31.060 And that pissed me off from 10,000 miles away.
00:42:35.700 It's not okay.
00:42:37.520 And look, when it comes to this fraternity thing, again, I will debate whoever that faculty member was.
00:42:44.140 I will debate anybody, anytime I dedicated my professional life to advocating on behalf of sexual assault victims, as Mark knows.
00:42:52.020 And this is one where I don't even see it as a close call. I'm sorry. I just I don't. And I'm as anti-rape, as anti-campus rape as anybody could be. And this is one where I see like the mob is making noise. It's not fair. And I worry on this one, Mark. I really do.
00:43:15.780 um yeah so i appreciate i appreciate that you've landed i uh it's almost like
00:43:23.760 the amen choir and i appreciate it and um it's fantastic to have you back you can't leave again
00:43:31.820 for three straight weeks i got another dive trip coming up but it's only about one so you're gonna
00:43:37.000 have to you're gonna have to figure out a way or we're gonna have to rope in natasha to figure out 0.63
00:43:41.980 away. So thank you. And before we get back, you had some final thoughts on Cornell seven in the
00:43:48.460 fraternities. I don't know that he's good, that he can top what he just did, but I'm going to sign
00:43:54.400 off now. And Matt, I missed you. And like I said, you're not going away for three straight weeks
00:43:59.620 again. Thank you. No, no. Yeah. Not until next year when these guys make me get on that boat
00:44:04.360 again, Mark. So no, I missed the show. I missed talking to you and I'm really happy to be back.
00:44:11.980 before we leave i just wanted to talk briefly about fraternities and i wanted to share a little
00:44:28.400 bit of my personal experience um i grew up in a in a house um where my parents um were kind of
00:44:36.280 unhappy people and they had a drinking problem when i went off to college i was never going back
00:44:41.480 home. And I'm not complaining. It just was what it was. But a fall quarter freshman year, I showed
00:44:48.280 up at the doors of Phi Sigma Kappa fraternity at UCSB. And those guys took me in and they gave me
00:44:54.020 a home. And I lived in that house for four years. And they were then and remain some of the finest
00:44:59.080 human beings I've ever known. So people in college, they walk by fraternity houses and they hear the
00:45:04.320 music on a Friday or Saturday night. But so many of the people that are talking about this Cornell
00:45:08.440 L7 case have never been in a fraternity themselves, and they don't know what happens behind the
00:45:15.440 parties, what happens on the other six nights out of the week, or really the other 29 nights
00:45:21.660 out of the month when they're not having a party. And what fraternities do, it's an American
00:45:26.940 tradition where it is men and women that live in a house together. And in my fraternity,
00:45:33.820 it was straight men. It was gay men. It was, we had every race, virtually every race in the world 0.93
00:45:40.200 represented. And you put these young men together and they call each other brother. And what you do
00:45:46.620 is you go through life together for those four years and you deal with breakups and you deal
00:45:51.140 with the deaths of parents and you deal with really heavy life things and you support each
00:45:56.200 other. And you also learn about what professors are best and what classes for your major and
00:46:02.940 what programs are available. And it was in conversations with my fraternity brothers that
00:46:07.680 made me decide to go to law school. And you take these young men and you teach them responsibility
00:46:12.580 and you learn the history of the fraternity. And you learn things like honor and fidelity
00:46:18.900 and mutual endeavor. And you talk a lot about helping other people. And fundamentally,
00:46:26.340 these are charitable organizations. And as I just talked about with Mark,
00:46:31.400 We raised money for the Make-A-Wish Foundation and for handicapped kids at Devereaux School.
00:46:36.000 And that fundraiser we did with Omega Phi Psi, which is a black fraternity.
00:46:40.160 And we got together, and there were black guys in my fraternity already.
00:46:42.940 And we raised money together, working together for handicapped kids.
00:46:47.340 And we kept the Goleta Valley Boys and Girls Club afloat.
00:46:50.800 And then my fraternity started Greeks Against Rape, which was focused on preventing sexual assault on campus.
00:46:59.140 and it worked it was it was a huge hit um and you know you're trying to measure a negative here
00:47:06.200 but the idea that fraternities are this hotbed or mark use the word petri dish of rape and sexual 0.98
00:47:13.340 assault is bullshit and i will debate anybody anytime about the good that can come around 0.98
00:47:19.740 from fraternities and sororities and how they can help people and for me and i didn't drink either 0.99
00:47:26.140 I never touched a drop of alcohol the entire time. I didn't drink and my fraternity didn't care. And they saw potential in me that nobody else saw up to that point. And they funneled me into positions of responsibility that I was over my head in. I became vice president of my fraternity. And it was one of the best, most transformative experiences of my life.
00:47:48.920 And so for all of those who watch the parties from the distance and think that's what fraternities are all about, that is, of course, when you throw a bunch of young men together in a house, there is beer and there is fun and there is that.
00:48:02.880 But there's so much more behind it about helping people and helping each other, and they are truly forces for good.
00:48:11.220 And I know this because I lived it, okay?
00:48:13.980 So I was gone. I was on my trip. And I've heard a lot of people bashing fraternities and sororities. I think that Cornell shutting down some of the fraternities, I think that's wrong. And I think that people need to take a deep breath, take a step back from their emotions and ask themselves, like Jake Tapper said, well, I've got a daughter and I'd be mad if it was investigated like this.
00:48:36.220 um uh i ask everybody to think about their best friend who is a man or their son or their uncle
00:48:44.960 and whether or not you would want them um to go through a process where the mob decides their
00:48:51.100 guilt or innocence where due process is thrown to the side and where people are treated fundamentally
00:48:56.460 unfairly to appease the emotions of uh of a mob that doesn't know all the facts so um i know i'm
00:49:03.160 going to get some heat for that. Uh, I'm okay with it. Um, uh, that's it. Thank you for letting me
00:49:09.420 vent. Um, I missed this whole thing while I was gone and, um, yeah, thank you for watching our
00:49:16.620 show and please, uh, watch us next week too. Maybe it's just a phase you're going through.
00:49:26.140 You'll get over it. I can't help you with that. The next appointment is in six months.
00:49:30.520 you're not alone finding mental health support shouldn't leave you feeling more lost
00:49:36.560 at camh we know how frustrating it can be trying to access care we're working to build a future
00:49:42.480 where the path to support is clear and every step forward feels like progress not another
00:49:47.600 wrong turn visit camh.ca to help us forge a better path for mental health care