The Megyn Kelly Show - Jay-Z Accuser Inconsistencies, Murder One For Mangione, and Trump Lawfare Latest, with Arthur Aidala and Mark Geragos ｜ Ep. 972

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00:00:32.640 Someone is trying to frame us.

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00:00:59.880 Welcome to The Megyn Kelly Show.

00:01:03.000 Live on Sirius XM Channel 111 every weekday at noon east.

00:01:12.740 Hey everyone, I'm Megyn Kelly.

00:01:14.400 Welcome to The Megyn Kelly Show and a special Kelly's Court Christmas episode.

00:01:19.180 This kicks off our True Crime Christmas series for 2024.

00:01:22.920 Nothing says Christmas like True Crime.

00:01:25.560 And we have two, count them, two Kelly's Court favorites to dive into many important cases with.

00:01:32.680 Jay-Z, Diddy, the Menendez brothers, and much, much more.

00:01:37.620 Joining me now, Arthur Aydala, trial attorney extraordinaire and managing partner Aydala,

00:01:43.700 Bertuna and Caimans, and host of the Arthur Aydala Power Hour on AM 970 in New York.

00:01:49.520 Also with us today, Mark Garagos, also extraordinaire trial lawyer and managing partner of Garagos and Garagos,

00:01:57.600 and host of Reasonable Doubt, which is a great podcast.

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00:03:10.860 Welcome back to the show, guys.

00:03:12.700 Hello. Happy holidays.

00:03:14.240 Ho, ho, ho. 0.99

00:03:15.160 And to you. How you doing, Mark?

00:03:17.600 I couldn't be better. How about you, Megan?

00:03:19.440 I'm great. I love the holidays, and I love true crime, so this is everything that I adore coming together.

00:03:27.920 There's actually a lot going on.

00:03:30.360 You never know whether, you know, we go to these true crime Christmas specials, which always do well.

00:03:33.720 People are like us. They are also into these stories.

00:03:37.060 Whether you're going to have an embarrassment of riches or a paucity of results.

00:03:40.820 And I've got to say, it's the former.

00:03:42.480 Sure. Let's kick it off with Mark's biggest current case.

00:03:47.480 Probably not, knowing Mark.

00:03:48.760 But it's a big one. It's all over the news.

00:03:51.100 Mark and I have debated it before.

00:03:52.840 Marsha Clark came on, and she did not agree with you,

00:03:56.080 that the Menendez brothers should and possibly will be released.

00:04:02.480 Something bad happened for your clients since the last time we spoke.

00:04:08.780 And that badness was the L.A. district attorney, George Gascon,

00:04:14.380 who was pushing to have them possibly let out early, lost his election.

00:04:20.840 And the new guy, Mark, is not a fan of this push,

00:04:26.780 and keeps naming you in the press and saying you've been misleading everybody

00:04:32.140 into thinking that they didn't get a fair trial second time around,

00:04:35.420 that they weren't allowed to discuss the sexual abuse allegations, which he says they were.

00:04:39.660 He said they argued everything you want them to have been able to argue,

00:04:43.420 and the jury rejected it.

00:04:45.020 And so he's calling you out, which suggests to me he's not on board,

00:04:49.200 and they may not, they weren't home for Thanksgiving,

00:04:51.760 but they may not be home even for Valentine's Day at this point.

00:04:54.900 What do you think?

00:04:56.780 Well, look, he has said various things.

00:05:02.320 He has now, as we are discussing, has extended an invitation to meet,

00:05:10.260 which is obviously something that I've been waiting for.

00:05:13.860 And I will point out where he is wrong,

00:05:18.080 and I will help educate him on the law.

00:05:22.800 And the law is, and the facts are, that in the second trial,

00:05:28.060 imperfect self-defense was not allowed as a jury instruction.

00:05:33.220 So that alone, imperfect self-defense is where you get a jury instruction,

00:05:38.900 where the jury can basically say,

00:05:41.480 we're not going to vote for murder,

00:05:42.740 we're going to eliminate malice based on imperfect self-defense.

00:05:46.700 And that is the idea that you felt that there was danger because of the syndrome that you were exposed to.

00:05:56.020 In this case, back in the 90s, we had battered women's syndrome. 0.74

00:06:00.020 And I've talked to you, Megan, about the fact that I tried murder cases in the 90s,

00:06:04.140 where I used the battered women's syndrome.

00:06:06.240 Back then, it was not extended formally by the legislature to others besides intimate partners.

00:06:15.200 It was formally in 2004, the legislature expanded it.

00:06:19.660 So the second trial, which the evidence started eight days after the OJ acquittal,

00:06:26.580 there were some dramatically different rulings.

00:06:28.980 And those rulings are what affected the result by the jury.

00:06:32.360 That's on the habeas.

00:06:33.720 Then on the resentencing, you have, and he's talked about it, he being Mr. Hockman,

00:06:40.260 that he has looked at thousands of pages of C-files.

00:06:43.920 C-files are the correctional files.

00:06:46.120 It's everything that these two gentlemen for the last 35 years,

00:06:51.260 actually 30 because for the first number of years they were in the county jail,

00:06:55.540 it's everything they've done in prison.

00:06:57.500 And I will tell you that based on my investigation,

00:07:00.720 based on the DAs who were involved in the investigation,

00:07:04.280 who filed the resentencing memorandum,

00:07:07.360 it's the most impressive book of accomplishments by anybody who,

00:07:12.960 especially it's amplified when you think about the fact that as of 2005,

00:07:17.960 they had no hope of ever getting out.

00:07:20.460 They could have gone in one direction.

00:07:22.480 Instead, they went in the direction of starting programs.

00:07:25.540 Okay, so there's two different avenues that you're talking about.

00:07:28.140 You're trying to, first you're trying to say the underlying trial was unfair to them.

00:07:31.400 They weren't allowed to present fully the defense of imperfect self-defense,

00:07:35.800 meaning we'd been abused by our parents.

00:07:37.820 We actually did get ourselves worked up to the point where we thought we were going to be murdered by them.

00:07:42.080 That's why we murdered our parents on the night that we did,

00:07:44.620 even though they weren't rushing after us with loaded guns.

00:07:47.380 We rushed after them with loaded guns, given what we believed in our heads.

00:07:52.380 That's one lane.

00:07:53.260 And the second lane is model prisoners.

00:07:55.140 They've been there for a very, very long time.

00:07:57.620 They've done everything they can to rehabilitate themselves in the eyes of the law and the prisoners and so on.

00:08:02.520 And so either one of those tracks can get them out early.

00:08:05.180 Now, here's Nathan Hockman, the new DA.

00:08:08.860 This is fascinating to me.

00:08:09.980 He spoke with Deadline, and now he's given an interview to NBC as well.

00:08:15.380 But here's what he said in part.

00:08:17.380 Once I got up to speed.

00:08:19.220 Oh, first he says, once I get up to speed, I'm going to call Mark Garagos.

00:08:22.020 I'm going to invite him to come in, and I'm going to let him make any level presentation he wants.

00:08:28.740 But he, so far, doesn't seem impressed with the argument.

00:08:31.520 He says, look, the assumption that the second trial, that the issue of abuse wasn't raised,

00:08:38.720 he says that's because of Mr. Garagos' mantra, which the media has repeated.

00:08:44.940 He said, Eric Menendez testified in the second trial for seven days, probably, if I had to guess,

00:08:50.100 close to 40 hours of testimony, where he went into great detail, as he did in the first trial.

00:08:54.940 Incident by incident by incident between the ages, I think, of six to 18 of what his father had done to him.

00:09:01.740 So the notion, again, that the mantra, that the sexual abuse was not explored in the second trial,

00:09:06.440 that the judge kept out all the evidence, actually isn't true.

00:09:10.540 So, question by deadline, so why do you think that's become so accepted?

00:09:14.020 Hockman, I mean, I've been doing this for 34 years, and I've seen it.

00:09:17.020 The media is in search of simple narratives, conflicting narratives, and so it adopted the Garagos narrative,

00:09:23.600 which was smart, very creative.

00:09:25.780 It's basically that the trial was all about sexual abuse, that their response was because of sexual abuse.

00:09:30.440 It's that a conviction was only attained because the evidence of sexual abuse did not occur in the second trial,

00:09:34.620 but did occur in the first trial, and therefore, that the underlying conviction is wrong and should be fixed.

00:09:40.040 Very simple narrative.

00:09:41.060 What makes it a little bit more complicated, and that's why the media would have to deal with additional work, is what he says.

00:09:47.740 And then finally, he goes on to say,

00:09:49.800 knowing the Garagos narrative is absolutely wrong,

00:09:56.060 the issues that we will be looking at for the trial will be whether or not these two young men faced an immediate threat to their life,

00:10:02.540 why they got to that point.

00:10:04.680 Mark, I don't like your chances suddenly.

00:10:08.340 Well, I really do like my chances because, mind you, this is somebody who has practiced criminal defense.

00:10:16.360 He represented, I believe, Lee Baca, who was the sheriff here who was charged federally.

00:10:22.840 So, once I point out to him where he's wrong, frankly, on this, once I show him the, and walk him through,

00:10:32.840 and as you said, he's welcome to a fulsome presentation, which I plan on giving him,

00:10:38.640 I think he'll change his mind.

00:10:40.060 I think he'll understand.

00:10:40.840 What specifically?

00:10:41.620 Can you speak to that claim that they were allowed to testify to all the stuff that you said they were in?

00:10:46.200 Can I make Mark's case for him?

00:10:48.800 Yeah, go ahead.

00:10:49.540 Well, first of all, I have to just say, because Mark talked about, they think, battered woman syndrome.

00:10:56.160 And since it's a special edition of Kelly's Court, I'm going to brag.

00:11:00.080 I actually, my very first murder case as a criminal defense attorney,

00:11:03.760 allowed for the first time in the United States of America,

00:11:07.120 battered woman syndrome to be used against a man. 0.81

00:11:10.300 And they were two gay men, and one killed the other,

00:11:13.600 based on a series of abuse and all kinds of abuse.

00:11:16.260 Financial abuse, emotional abuse, physical abuse, sexual abuse.

00:11:19.200 But it had never been before, anything more than husband and wife.

00:11:23.280 And this expanded it.

00:11:24.600 And Megan, it's been used very successfully, not to get people off,

00:11:29.180 not to get people found not guilty, but as opposed to life in prison or 25 years in prison.

00:11:34.900 It's a tremendous mitigating factor, reduces sentencing exponentially from life in prison to 15 years.

00:11:42.740 In my particular case, when I came into the case, the prosecutor said,

00:11:46.240 all right, Arnie, I'll give you 22 years.

00:11:48.440 I mean, my guy totally did it.

00:11:49.580 There was no issue about it.

00:11:50.800 I'll give you 22 years.

00:11:52.260 And then I raised battered woman syndrome.

00:11:55.000 That's not going to work.

00:11:55.660 I'll give you 20 years.

00:11:56.800 And then the judge put on three experts who said battered woman syndrome is not just between a husband and a wife.

00:12:02.780 It can be through very different relationships.

00:12:05.620 And it is gender neutral.

00:12:06.880 It's all about control and power.

00:12:09.160 He wound up pleading to six years.

00:12:11.760 So that's where it matters so much.

00:12:15.120 What year was that?

00:12:15.940 1999.

00:12:17.380 It's exactly right.

00:12:18.520 And that was the first time they had expanded it from the idea.

00:12:23.120 Exactly.

00:12:24.100 And I'm telling you, until the 2000s, this was not something that was recognized outside of the, what we used to call intimate partners.

00:12:36.620 Well, you know, I actually, I have my own story on this because when I went to law school, it was between 92 and 95.

00:12:44.500 And I did a little internship for a solo criminal defense practitioner, Mark Garagos.

00:12:50.200 See, I wasn't always prosecution minded.

00:12:52.820 I'm going to have to stop calling you my pro host.

00:12:56.200 So I know I don't like it.

00:12:58.440 I object to my nickname.

00:13:00.420 Anyway, this guy had me on this case where it was two lesbians. 1.00

00:13:05.500 So it was kind of similar to your argument, Arthur, where I was saying we should argue battered woman syndrome on her behalf.

00:13:12.460 And there was a woman syndrome and there was a woman there. 1.00

00:13:15.820 It just happened to be that her, you know, deceased partner was also a woman.

00:13:19.700 Partner was a woman. 1.00

00:13:20.300 So we were, we were on the same path, my friend.

00:13:23.040 And we did argue that.

00:13:24.020 And then I'll tell you the rest of the story later about the guy I interned with.

00:13:28.500 It didn't end well for him.

00:13:29.660 So it turned out he was kind of a fan of the criminal law in a different way.

00:13:33.460 Anywho.

00:13:34.140 Yikes.

00:13:34.940 So back to the Menendez brothers.

00:13:37.520 Wow.

00:13:37.960 I don't get how you're going to go in there, Garagos.

00:13:40.220 That might explain quite a bit about you, Megan.

00:13:41.820 That, that little tidbit might explain quite a bit about your tilt.

00:13:46.640 Right.

00:13:47.080 I was like, ew, I don't want to be with these guys.

00:13:49.880 I want to go on the other side.

00:13:50.980 But, um, I want you to explain what Eric wasn't allowed to testify to in trial number

00:13:58.140 two, because the first trial was a hung jury and they got let off.

00:14:01.380 Um, then the DA brought the second trial against them for killing their parents.

00:14:05.200 And the narrative has been, including by you, that they weren't allowed to testify to all

00:14:08.940 the sexual abuse that they suffered in the second trial.

00:14:10.920 It was much more limited.

00:14:12.000 Therefore, the jury didn't get to hear how awful life was under Kitty and, and, um, Jose

00:14:17.040 Menendez.

00:14:17.600 And you weren't allowed to really defend them in the way that you wanted.

00:14:21.340 So what, what specifically was denied that you would, that you think was there?

00:14:25.320 I believe there were 51 witnesses who the defense called Leslie Abramson, who tried it

00:14:31.960 admirably and who is still alive and was one of the great defense lawyers around.

00:14:37.420 Leslie had called 51 witnesses, including experts, including family members who testified

00:14:43.120 to the range of things that were going on there.

00:14:45.840 One of the things that sticks out to me is this idea that there was a rule in the household,

00:14:50.760 uh, that if Jose was with one of the boys in a room down the hall, you could not go down

00:14:57.660 the hall.

00:14:58.240 And that is chilling to me.

00:15:00.040 There were in the second trial, literally, I want to say 20 some odd witnesses who were not

00:15:07.180 allowed to testify that could not corroborate what Eric was saying.

00:15:11.700 So you had this idea that by the time you got to the closing argument, you could allow, and

00:15:17.060 this is exactly what happened, the district attorney to make a closing argument that said,

00:15:22.500 oh, this is an abuse excuse.

00:15:23.980 These are rich kids.

00:15:25.260 They, uh, they just wanted to inherit money.

00:15:27.540 There was no corroboration.

00:15:28.940 They were a bunch of whiners.

00:15:30.000 In the first trial, you were able to corroborate, you were able to put on the witnesses, including

00:15:35.660 family members, including experts who corroborated all of this.

00:15:39.460 And there was also a ruling and several rulings as to Lyle, which, uh, basically box Lyle in from

00:15:48.160 being able to testify.

00:15:49.560 So there was a monumental change in the rulings between trial number one and trial number two,

00:15:55.660 the witnesses that were allowed to be called in trial number one and trial number two.

00:15:59.200 And I look forward to presenting that because those are the things that are, to my mind,

00:16:05.460 irrebuttable.

00:16:06.340 There are, it's factual determinations.

00:16:10.160 Here's what Hockman, the new DA is saying, Arthur.

00:16:12.860 He says to Deadline, as I said, Eric Menendez was able to testify in great detail about all

00:16:18.400 the sexual abuse he experienced.

00:16:20.060 He was even able to testify about sexual abuse Lyle experienced.

00:16:24.060 He was even able to testify about the fact that Lyle purportedly confronted his father,

00:16:27.960 their father, about this whole issue, which is why they had some level of fear that their

00:16:32.800 father was going to kill them.

00:16:34.560 All of that was presented to the jury and the jury still convicted them both of first

00:16:41.260 degree murder.

00:16:42.700 Now, does that sound to you like a DA who still is behind the prospect of taking another look

00:16:51.220 at this case and possibly pushing to let these young men out?

00:16:54.040 Well, they're not young anymore.

00:16:55.960 Early.

00:16:56.420 Right.

00:16:56.840 No, obviously it doesn't.

00:16:58.360 But he's also a team who's just gotten elected.

00:17:01.260 But even, is he even sworn in yet as the DA?

00:17:03.400 I would think that would happen in the beginning of the year.

00:17:06.280 We've got this weird thing in LA, the county charter.

00:17:09.880 He gets sworn in on December.

00:17:12.280 I believe it was the 6th, which is unusual.

00:17:14.860 All right.

00:17:16.160 So anyway, he was, my understanding is he was more of the law and order guy than the

00:17:21.960 last guy.

00:17:22.940 So he's probably trying to flex his muscles a little bit that I'm not going to go easy.

00:17:26.520 This is right.

00:17:27.280 This second, as far as us New Yorkers know, the highest profile prime in LA right now.

00:17:33.200 So he probably is trying to send the message that we're not going to be going easy on anybody.

00:17:37.920 The question I think I have for Mark is, did that jury get the appropriate charge from

00:17:43.120 the judge with the California equivalent of battered woman syndrome, battered person syndrome?

00:17:49.520 No.

00:17:49.740 And that's the whole problem with the argument.

00:17:53.640 And by the way, he is, he being Mr. Hockman, is parroting the, and I understand parroting is

00:18:00.960 kind of a pejorative, but he's adopted kind of a narrative of the, what I call, I jokingly

00:18:08.660 say the 90s are calling and they want their DA's office back.

00:18:12.220 That's been the traditional mantra, if you will, of the DA's office.

00:18:16.880 And, you know, one of the things that Megan had mentioned that Marsha has, and I have had

00:18:24.700 spirited conversations about this.

00:18:26.360 Marsha was there in the DA's office at the time, in real time in the 90s.

00:18:31.720 She knew what was going on.

00:18:33.860 She will, at least in the green room before we get on to Megan's on air thing, she will

00:18:40.520 admit to me that, of course, they needed to win that case.

00:18:43.520 They had to win it at all costs.

00:18:45.480 He would, the DA at the time was in the fight for his life.

00:18:48.280 And so, you know, there is a.

00:18:50.080 Okay, but here, here is what she said to me on the air.

00:18:54.360 You were not there, but we had you on alone and then we had her on alone and I followed

00:18:58.700 up.

00:18:59.020 Listen.

00:19:00.420 I don't think they're going to get out.

00:19:02.060 I don't think it's going to happen.

00:19:03.920 I don't think anybody was that impressed with Gascon's position.

00:19:07.600 I wonder if people are thinking at all about the fact that there are others in prison serving

00:19:13.220 a sentence of life without, which is what they're serving.

00:19:15.420 That means life without the possibility of parole, who are much less culpable.

00:19:20.580 I have clients that are serving life without the parole, without parole right now, who

00:19:25.260 never killed anyone.

00:19:26.280 Defense is not, oh, daddy boinked me and mommy wouldn't stop him.

00:19:30.220 So I get to kill him.

00:19:31.100 It wasn't that.

00:19:32.260 The defense was, you know, daddy threatened to kill me.

00:19:35.920 I believe he was going to kill me.

00:19:37.920 Even if you think I'm unreasonable and thinking that I genuinely believe it because of things

00:19:43.200 he said and did toward the end.

00:19:45.520 That was their defense.

00:19:46.720 You have a greater awareness of abuse, child abuse and the kind of trauma it inflicts.

00:19:51.620 And we are, I think, are more sensitive to that.

00:19:54.260 And that's a good thing.

00:19:55.380 But you have to remember that that's not a license to kill.

00:19:58.940 So it's so good to talk to you because I talk to your partner in crime.

00:20:01.200 He's not really just come on together sometimes.

00:20:03.340 Mark Garagos, but I know he's a friend and you guys grew up in the California legal system

00:20:06.600 together.

00:20:07.240 And of course, he's representing them and is 100 percent on the other side and came on and

00:20:11.000 totally convinced me that they should be let out.

00:20:13.040 Now I hear you talk.

00:20:14.080 I'm like, ah, no, these are good points.

00:20:17.720 She got me, Mark.

00:20:19.400 And I think she got the new guy.

00:20:21.480 Remember, Megan, you tilt that way.

00:20:24.740 So I'm going to bring you back to center.

00:20:27.200 Bring me back to center.

00:20:27.820 What about her point about all the other more deserving guys who didn't murder anybody

00:20:30.960 who have to sit their asses in prison forever?

00:20:33.620 Two wrongs don't make a right, though, Megan.

00:20:35.360 Just because the system's broken there, it should be broken everywhere.

00:20:39.800 And I think, let me tie it up.

00:20:41.240 They didn't get Lifetime movies made about them.

00:20:44.740 Or what's his name?

00:20:45.920 Was it Ryan Murphy who just redid the story?

00:20:48.280 What does that mean?

00:20:49.360 What does that mean they shouldn't get relief just because they have a higher profile case?

00:20:53.180 Yes.

00:20:53.400 Maybe it'll help the other people.

00:20:54.920 Look, I'll tie it in.

00:20:56.100 This was one of President Trump's talking points when he was on the campaign trail.

00:20:59.960 How the system is broken.

00:21:01.340 How it needs to be looked into.

00:21:02.600 How it needs to be fixed.

00:21:03.680 How we can't just do business as usual.

00:21:05.720 The standard thing over and over again.

00:21:07.100 It's time to readjust to basically take a deeper look.

00:21:12.180 And I think Trump is leading the way.

00:21:14.200 He saw how the system is broken on the state level, here in New York, on the federal level.

00:21:20.160 And I think it's going to hopefully have some very positive change regarding reform in the system, which is long overdue.

00:21:26.660 I don't know how I feel anymore.

00:21:27.840 They definitely murdered their parents.

00:21:29.680 And we talked about how that is the ultimate F in parenting.

00:21:32.660 So the parents have some culpability here one way or the other.

00:21:36.200 There's no question they weren't ideal parents.

00:21:38.480 They definitely, I believe they were abusive.

00:21:40.340 And I actually believe Jose was a sexual abuser, too.

00:21:43.340 I do.

00:21:44.220 I just think there's been, I mean, with the Menudo guy coming forward to say that he was abused by Jose, too.

00:21:49.020 Like, why would he have done that?

00:21:50.300 Why would he say all that, you know, all these years later?

00:21:52.980 That's nothing most men want to admit.

00:21:55.840 But he admitted it.

00:21:56.760 So it's like we know he was an abuser.

00:21:58.240 And it's not, they never do it with just one.

00:22:00.660 So I do have some empathy for these young men.

00:22:02.800 Go ahead.

00:22:03.020 By the way, I will, I stand by, I know that Mr. Hawkman has at least articulated that he doesn't buy it.

00:22:12.400 But I will go to my grave telling you, if they were the Menendez sisters, they never would have gotten life without parole. 0.89

00:22:19.400 It's just, it's a given.

00:22:21.280 Anybody who's in the criminal justice system, who's honest with you, will tell you that.

00:22:25.980 And the DA, we played this soundbite, the DA in the case is on tape saying you can't rape a man.

00:22:32.000 A man cannot be raped.

00:22:33.400 Right.

00:22:33.800 I mean, there's, let me, let me make Mark's, Mark, can I, let me just make Mark's point.

00:22:37.640 I tried a case in Queens, New York.

00:22:39.520 Arthur's always fighting for his airtime.

00:22:40.840 He's like, I'll make any point I have to make to set the camera.

00:22:42.720 I got it.

00:22:42.780 I mean, come on, what do you have me on here for?

00:22:44.160 Just to look pretty?

00:22:45.040 You know, I have a handsome bald guy on here.

00:22:47.520 I tried a case in Queens, New York with a young woman who, I don't know, our father's penis. 0.62

00:22:53.920 And he was screaming and yelling.

00:22:55.260 So she stuffed a towel in his mouth and he gagged to death. 1.00

00:22:59.260 It wasn't the penis injury that killed him.

00:23:01.120 It was the gagging that killed him.

00:23:01.960 You really dropped a whopper on us there.

00:23:04.100 What?

00:23:04.560 Well, viewer warning, please.

00:23:07.000 There you go.

00:23:07.680 Well, I used the proper word.

00:23:09.760 Like you sometimes there, Miss Kelly, who dropped some bombs.

00:23:13.000 My mother yelled at me. 1.00

00:23:14.160 You're talking about castration.

00:23:14.800 Talking like that.

00:23:15.680 And that is listening.

00:23:17.900 So anyway, a jury came back and it was a woman. 1.00

00:23:21.940 She testified.

00:23:22.940 She admitted to every crime.

00:23:24.580 Prosecutor, after her testimony, stood up in front of her and said, Miss Bridget Harris,

00:23:29.320 you intended to cause serious physical injury to your father by cutting off his penis, correct? 0.87

00:23:34.580 Yes.

00:23:35.280 And when you did that, you caused the death, correct?

00:23:37.680 Thank you.

00:23:38.300 Those are all the elements of manslaughter to the first degree, which is a 25-year sentence.

00:23:42.160 The jury came back and said, not guilty.

00:23:44.680 They found her guilty of a much lower charge.

00:23:46.800 She did two and a half years in prison and she was out.

00:23:49.640 So, you know, it's somewhat similar.

00:23:52.200 He had not molested her in a decade, but she saw him making moves on her five-year-old niece.

00:23:58.360 And she said, I was not going to let that happen to my niece.

00:24:01.600 And I took matters literally into my own hands.

00:24:04.920 Wow.

00:24:05.820 Wait, let me ask you this to finish up on a procedural note, Mark.

00:24:08.500 The report by Variety was that this new DA, Hockman, just removed the two deputies who

00:24:16.300 sought to reduce Lyle and Eric's sentences, which is no bueno for you.

00:24:20.880 So, he's stepping in and he doesn't seem sympathetic, but they already filed a motion

00:24:26.560 asking the court to reevaluate this.

00:24:29.940 So, does he, like, is the ball already in motion?

00:24:34.080 Is it too late for him to reverse course on this?

00:24:36.280 Like, this judge is going to decide, right, once and for all?

00:24:39.680 Or can he stop the consideration of it?

00:24:42.080 No, I said it publicly after the last status conference.

00:24:46.780 There is a case, an appellate case in California.

00:24:50.260 It says specifically a subsequent DA cannot pull back the resentencing, number one.

00:24:58.320 And number two, Judge Jessick also at the last hearing invoked what is called AB 600,

00:25:04.760 which is his judge-initiated ability to do it.

00:25:09.860 So, no, he can't call it back.

00:25:11.900 Resentencing hearing is going to happen on the 30th and 31st, and it's going to be up

00:25:16.380 to the judge.

00:25:17.720 That's the next big date in this case, January 30th or 31st, and we will know a lot more

00:25:22.760 at that point.

00:25:23.920 So, okay, very interesting, good debate, and we'll find out what happens.

00:25:27.220 Let's move on to Jay-Z and Diddy.

00:25:30.200 Now, we knew that Diddy was facing all sorts of criminal charges and tons of civil suits,

00:25:36.720 and my God, like, I can't even keep track of the number of things that have been alleged

00:25:40.080 against Sean Combs or P. Diddy.

00:25:44.200 But here he is in this picture with Jay-Z, who is also known as Beyonce's husband, and now

00:25:51.420 Jay-Z's been dragged into one civil suit by one of the Diddy accusers.

00:25:59.340 And this now 30-something-year-old woman, I think she's 37 now, who claims that she was

00:26:06.740 13 years old at the time this happened to her, has filed a lawsuit through this lawyer

00:26:12.420 who's suing P. Diddy in many cases.

00:26:16.820 Like, this guy's going to build a summer home based on what he hopes to recover.

00:26:21.220 Or three.

00:26:21.740 In these lawsuits.

00:26:22.220 Or three summer homes.

00:26:23.540 So he says that he's got this woman who, when she was 13 years old, she went to the

00:26:32.660 VMA Awards in New York City, like, by herself, looking to get in and meet celebrities.

00:26:37.860 Not surprisingly, she says she couldn't get in.

00:26:40.980 She says she decided to chat up the limo drivers waiting for the celebs outside, and that one

00:26:46.400 of them said to her something to the effect of, you look like Diddy's type.

00:26:49.240 And that then she was brought back to Diddy's house after the VMA Awards at Rock Center in

00:26:56.900 Manhattan in the year 2000.

00:26:59.000 And that there she was raped, not only, she was given something that made her feel drugged,

00:27:04.680 a drink.

00:27:05.520 And she was raped not only by Diddy, but also by Jay-Z.

00:27:09.440 And that when Diddy then tried to come for her again that evening, she grabbed her clothes

00:27:14.640 and ran out, and that her father picked her up at a gas station nearby the home.

00:27:22.020 The father, and I presume she, lived five hours away in Rochester, New York.

00:27:27.240 Now, unfortunately for this woman and her lawyer, this guy Busby, some inconsistencies have surfaced

00:27:35.200 in the account, most notably the father, the father comes out and says, that never happened.

00:27:46.340 I never went and picked her up at any post-Diddy party.

00:27:51.180 I think I'd remember that.

00:27:52.380 I live five hours away.

00:27:54.840 And that would seem to be a near insurmountable problem for Mr. Busby in this lawsuit, Mark.

00:28:01.820 But you tell me, well, that's the, when you say inconsistencies, that's about as charitable

00:28:07.920 as you can get.

00:28:09.000 And by the way, I'm going to, I'm going to ask Alex Spiro next time he calls him a Busby,

00:28:15.700 the 1-800 lawyer.

00:28:16.880 I call him the 1-800-Diddy lawyer.

00:28:19.520 I mean, he's out there with the billboards.

00:28:21.980 He's filing things anonymously.

00:28:23.660 And then it turns out when Alex was doing his press conference yesterday, that not only

00:28:28.020 was a description of the house impossible, 20 minutes outside of Manhattan, but virtually

00:28:33.780 everything else about this story was impossible.

00:28:37.500 Not to mention the, as you said, the father, but this is not the first time that one of these

00:28:43.560 things as to Diddy has fallen apart.

00:28:45.680 I mean, there, Gloria Allred brought a case that ended up falling apart. 0.97

00:28:50.440 The lawyer, I was, I actually followed on one of the TV shows, a lawyer who brought three

00:28:57.520 cases against Diddy.

00:28:59.520 And he said that 60 people had come to his office talking about Diddy, but the 57 of them

00:29:08.500 were so ridiculous that he didn't take them.

00:29:11.160 Well, that tells you 95% of the people making the claims don't even pass the smell test for

00:29:17.320 a lawyer, yet he's going to take three or vice versa.

00:29:21.180 I mean, this is really at the end of the day, if you look at the Diddy case and, you know,

00:29:27.740 there's almost a service that has been done by, by them expanding it to Jay-Z.

00:29:32.780 Everybody says there's all these celebrities involved.

00:29:35.780 Well, so far, everybody says any minute the tape's going to drop, the tapes are being shopped,

00:29:41.280 blah, blah, blah.

00:29:41.940 The problem is that was in September.

00:29:44.040 Now we're in December, not one tape has been released that I have seen.

00:29:49.360 No, not one other person who is an alleged victim has been identified.

00:29:55.260 It's still, we're down to, it's still a one accuser case that's being brought criminally.

00:30:02.840 I think that a lot of this is totally overblown and there isn't any indication.

00:30:09.160 Everybody keeps talking about the Diddy parties.

00:30:11.340 Where are the tapes of the Diddy parties where this is supposedly going on?

00:30:16.760 Nobody's ever seen it.

00:30:17.840 It's become like the Loch Ness Monster.

00:30:21.040 And also, but Meg, let's talk about something historical that took place this week.

00:30:25.940 And it's this case that you and I, I don't know how many stories we did on the original

00:30:30.240 Kendall's court slash Kelly's court. 1.00

00:30:32.340 The young woman who, she was young then, accused the Duke lacrosse players of raping her. 0.95

00:30:38.340 Crystal Mango.

00:30:38.880 Has now come out and said, yeah, they made the whole thing up.

00:30:43.560 Which is horrible, is what she did was horrible.

00:30:47.360 She's actually just committed like a little bit of a public service to show like,

00:30:51.760 we'll do make these things up.

00:30:53.860 Everyone's like, oh, make this up out of whole cloth.

00:30:56.220 How would just create such a story?

00:30:58.000 Never happens.

00:30:58.840 Yeah, it actually does happen.

00:31:01.880 It did happen.

00:31:02.840 Those four kids' lives were ruined.

00:31:05.040 Their families ruined, financially wiped out.

00:31:08.320 But DA was brought to his knees out there.

00:31:11.060 It was just, you know, a despicable situation that happened.

00:31:15.060 And now, I don't even know, almost 20 years later, she admits, yeah, I made the whole thing up.

00:31:20.460 And this girl with the Jay-Z thing, I mean, her own father.

00:31:24.220 He goes, yeah, I think I would remember if I drove five hours to pick up my daughter from a nightclub.

00:31:31.240 But for Jay-Z, I agree with Mark that he did form somewhat of a public service when his name came out.

00:31:38.120 And he fought.

00:31:38.760 He said, look, I feel bad for my kids.

00:31:40.840 I feel bad they're going to have to hear about this.

00:31:42.860 But I am not going to be extorted.

00:31:44.540 I'm not giving a penny.

00:31:45.780 I know I didn't do that.

00:31:46.980 And I'll tell you, if Mark and I have represented these kinds of people, it is often a lot easier for them to fill out a three-page document, a non-disclosure agreement, write out a check for an amount of money that's not going to change their quality of life, just make it go away.

00:32:01.800 He probably could have done that here.

00:32:03.560 But he didn't, and good for him.

00:32:05.340 Yeah, no, Jay-Z is denying it in the strongest terms, and he's responding to this.

00:32:11.800 I'll get to her other inconsistencies in a second, but he's responding to the fact that she's been caught with some apparent whoppers by saying,

00:32:21.520 Today's investigative report proves that this, quote, attorney, Busby, filed a false complaint against me in pursuit of money and fame.

00:32:30.100 The incident did not happen, and yet he filed it in court and doubled down in the press.

00:32:35.040 True justice is coming.

00:32:36.540 We fight from victory, not for victory.

00:32:39.260 This was over before it began.

00:32:40.960 This 1-800 lawyer doesn't realize it yet, but soon.

00:32:43.920 And here are some of the other problems with her story as she told it through this lawyer.

00:32:49.200 Okay, she claimed that she talked to specific celebrities at the Diddy after-party.

00:32:57.620 She said, for example, she spoke to musicians Fred Durst and Benji Madden, recalling a conversation, quoting her from a Washington Post report, about the Good Charlotte member's Last Supper tattoo.

00:33:11.260 I have a religious background, she said, so it was something to talk about.

00:33:15.500 Okay, but NBC News said a representative for Benji Madden confirmed that Benji, as well as his twin brother Joel, were touring in the Midwest at the time of the 2000 VMAs and did not attend the event.

00:33:33.240 So there's that, there's the father, and then there is this.

00:33:40.880 Okay, she claimed that she went back to the after-party at Diddy's house to a large white residence with a giant U-shaped driveway.

00:33:51.140 And NBC News is reporting that, I guess there was a party, but it was at Lotus, is that what it is?

00:34:00.420 But they said that the building's now closed, and it does not match the description of the place she claimed she was taken at all.

00:34:08.580 So there's a few things here that don't match up, and she is saying, I have made some mistakes, but she stands by her story saying, I may have gotten some of the details wrong, but I stand by it.

00:34:23.340 But here's the capper, all right, this is the last piece of info for you guys.

00:34:27.280 This is devastating, this is the worst part to me.

00:34:29.560 So, Busby puts out a statement in the wake of this, right?

00:34:34.000 This is terrible, Arthur.

00:34:35.780 And he says, Jane Doe's case was referred to our firm by another law firm.

00:34:41.080 So already it's bad.

00:34:42.400 Like, we don't know Jane Doe, right?

00:34:44.840 Somebody else did the legwork on this, who vetted it prior to sending it to us.

00:34:50.380 I'm innocent.

00:34:51.180 Don't hold it against me, Busby.

00:34:52.440 Our client remains fiercely adamant that what she has stated is true to the best of her memory.

00:35:00.060 I mean, how many qualifiers can you get in there?

00:35:02.340 She is adamant that what she has stated is true to the best of her memory.

00:35:09.740 And then says, we will continue to vet her claims.

00:35:13.840 Hello?

00:35:14.960 That should have been done before you file a lawsuit against Jay-Z and Diddy,

00:35:18.820 and collect corroborating data to the extent it exists.

00:35:23.620 Okay.

00:35:24.120 Well, we will look forward to that, Mr. Busby.

00:35:28.720 Then he claims she agreed to submit to a polygraph,

00:35:31.840 though he doesn't claim she's actually sat for one yet.

00:35:34.020 And then he says, we'll do our best to vet every claim made in all of our cases,

00:35:40.480 just as we will in this case.

00:35:41.520 This has been extremely distressing for her.

00:35:43.860 Here we go.

00:35:44.500 Ready?

00:35:45.680 To the point she has experienced seizures.

00:35:48.820 And had to seek medical treatment due to the stress.

00:35:51.700 I don't believe one word of that.

00:35:53.620 She did not get seizures from the stress of this.

00:35:56.280 Did she get seizures, Arthur Adala?

00:35:58.520 I doubt she's gotten seizures.

00:36:00.860 And, you know, as lawyers, we raise our hand the day you're sworn in,

00:36:06.220 and you take an oath.

00:36:07.740 And some people take that oath more seriously than others.

00:36:10.460 So I had a woman come in here, a woman, not a young woman, a woman. 0.87

00:36:13.440 She's 38 years old, in the end of August.

00:36:16.960 And she made these types of claims. 0.95

00:36:19.400 And I have had three retired judges in my law firm and three other lawyers.

00:36:23.720 And I believe her.

00:36:24.620 I believe what she's saying.

00:36:25.900 But I am fallible.

00:36:26.880 I make mistakes.

00:36:28.620 We've all now interviewed her over the course now of four months.

00:36:31.560 And now, finally, I think in January, we will file a suit along these lines.

00:36:37.580 But it's not until six human beings with different life experiences, different ages,

00:36:42.840 have evaluated this individual before you make such a serious claim.

00:36:47.320 And it's not a case that's going to make the news, but it's going to affect somebody else's life.

00:36:52.480 And when I took that oath in 1992, that's still in the front of my mind in 2024,

00:36:59.060 that I'm always going to try to do the right thing and make sure I'm very, very careful

00:37:03.620 and not throw people's names and reputations under the bus.

00:37:08.020 You know, when they just named Beyonce the singer of the first quarter century,

00:37:13.540 they didn't include her last name harder in her remarks or whatever it was.

00:37:19.620 And that's, in my opinion, a direct ramification of this new lawsuit.

00:37:25.880 And, you know, you can't just be so careless,

00:37:30.920 even if you are going to get three summer homes or six summer homes or a yacht out of it.

00:37:35.260 To my own self, be true.

00:37:37.020 And I think Mr. Busby is struggling with that.

00:37:38.780 Would you have done things like calling, you know, the guys in this band,

00:37:42.320 like their reps to say, I'm investigating this case.

00:37:45.300 Can you confirm whether your clients were in New York at the VMAs in 2000?

00:37:50.320 Like, would you have done that kind of work before submitting a complaint?

00:37:53.760 I mean, before you go, look, I'm not going to BS here and say, yeah, I would do that in any case.

00:37:59.020 Before I was going to go after someone the likes of Jay-Z, who, look, the guy started off life as a crack dealer.

00:38:05.040 So, you know, he wasn't exactly in the seminary before he became a billionaire.

00:38:12.300 But he's led a pretty clean life the last three decades or so, if not four decades.

00:38:17.360 Well, I would say three decades.

00:38:19.520 Well, OK.

00:38:20.400 But as far as we know, as far as he's in the public eye, he's under public scrutiny on a regular basis.

00:38:25.440 You have to do some minimal fact checking.

00:38:27.840 Like, does the location exist where this person is saying it took place?

00:38:32.900 I would definitely pick up the phone and be like, OK, let's talk to your dad.

00:38:36.640 That's a simple one.

00:38:37.960 My dad picked me up.

00:38:38.980 OK, good.

00:38:39.600 Let's just chat with your dad.

00:38:41.240 I mean, that is not hard.

00:38:43.020 So wait, I'm going to go back to the case that I talked to you just to show you how careful I am, Megan.

00:38:47.340 This particular case in my office, this woman has the potential defendant on tape admitting things. 0.99

00:38:54.280 And I'm still being overly cautious before I start a lawsuit of this magnitude.

00:39:00.260 So we have a responsibility of lawyers as lawyers to cross our T's and dot our I's.

00:39:07.040 That's a no shit moment when you hear the dad say, no, no.

00:39:11.140 I think I'd remember like, oh, God, help us out.

00:39:15.140 But no, this does not look real.

00:39:18.440 And Jay-Z is denying it in the strongest terms.

00:39:20.500 And I know it's very fun to say, oh, a very rich celebrity I'm in.

00:39:25.080 Let's tell me all the terrible stuff he's done.

00:39:26.820 But we have to be just as cautious about what look like bullshit allegations.

00:39:31.200 And, you know, when they smell bad, call it out as such.

00:39:34.620 OK, let's move on.

00:39:35.540 I say penis. 0.77

00:39:36.320 You yell at me and you just say the whole word BS.

00:39:39.100 And I can't, you know, that's OK.

00:39:40.540 It's not about saying penis.

00:39:41.880 You were like, oh, she chopped her dad's penis off and shoved it down his throat. 1.00

00:39:45.800 We're supposed to be like, oh, go on.

00:39:48.480 People are listening to this.

00:39:49.220 They're driving their cars.

00:39:50.080 They don't know what they're coming at them.

00:39:51.380 OK, let's talk about the horror that was the UnitedHealthcare CEO murder, Brian Thompson,

00:40:01.160 killed by this guy, Luigi Mangione.

00:40:03.640 It's so bizarre.

00:40:05.000 You know, this young guy, 26 years old, with everything in front of him, you know,

00:40:09.280 had the world at his fingertips, valedictorian, went to an Ivy League university, UPenn, got a master's,

00:40:15.720 was never in trouble with the law before, you know, like one minor traffic violation,

00:40:19.760 something stupid, and now facing charges in New York of second-degree murder.

00:40:27.680 Let's just start there.

00:40:29.400 I'll stick with you on this, Arthur.

00:40:30.640 Why second-degree murder instead of first-degree murder in New York?

00:40:34.960 Well, second-degree murder is the typical charge.

00:40:37.540 First degree is for police officers, firefighters, EMT workers.

00:40:42.680 I believe if you kill someone under 14 years old, if you execute someone who's going to be 1.00

00:40:47.200 a witness in the case, there's very, very specific first-degree murder elements of a crime.

00:40:55.380 When you just take out a gun and shoot-

00:40:55.800 Can you still go to jail forever?

00:40:57.980 You can still go to jail.

00:40:58.980 Yeah, well, I believe in first-degree murder, you can get life without parole, and murder

00:41:03.540 in the second degree, it's 25 to life.

00:41:07.040 First-degree murder is very, very rare.

00:41:09.260 Thank God, actually, I'm just going to say this.

00:41:11.920 This Friday will be the 20-year anniversary, excuse me, the 10-year anniversary when Detective

00:41:16.320 Ramos and Detective Lou were executed on the streets of New York, sitting in their police

00:41:20.720 cars.

00:41:21.460 That's a first-degree murder case.

00:41:23.900 Mm-hmm.

00:41:24.480 Oh, God, that was awful.

00:41:25.920 Mark, let's say they call you up, Luigi Mangione, and I believe he's just hired Karen Agnifolo,

00:41:33.160 the wife of Mark Agnifolo, who represented Keith Raniere in the NXIVM case who I interviewed

00:41:39.500 when that whole thing was going down.

00:41:41.100 He did not get Keith Raniere off, but in any event, so let's say he has second thoughts

00:41:46.380 and he actually wants Mark Garagos.

00:41:49.160 How do you defend Luigi Mangione?

00:41:53.160 Well, you're going to get mad at your booker for this.

00:41:57.160 Mark Agnifolo's partner is who I am.

00:42:00.080 Is Agnifolo.

00:42:01.200 Is Agnifolo.

00:42:02.100 Yes, yes, my daughter.

00:42:03.060 Yeah, it is your daughter, right?

00:42:04.600 I'm not mad at my booker.

00:42:05.680 She told me.

00:42:07.040 Okay.

00:42:08.040 That firm also represents Diddy, so full disclosure, and I've represented Diddy for years, so full

00:42:15.700 disclosure there.

00:42:16.580 I'm glad you put that at the end of this segment, Mark.

00:42:18.640 You know, most people want to put the full disclosure, but it's okay.

00:42:21.020 You have the right to remain silent.

00:42:22.720 Well, if they hadn't turned off over penis cutting, and they're still listening, this is 0.56

00:42:28.600 their reward.

00:42:29.320 The, I don't know, and all I know, I haven't talked to Karen other than just briefly about

00:42:39.740 it so far.

00:42:40.760 She used to be of counsel to me before she went with her husband and Tenny, and I don't

00:42:47.940 know if they are conceding that he is the shooter or not.

00:42:52.900 Obviously, that's the first thing.

00:42:54.780 They've got to see what the evidence is and what the prosecution has.

00:42:59.800 I mean, as of right now, I believe he's still in Pennsylvania.

00:43:02.360 I don't think I'm telling any secrets in that I think extradition will probably get waived

00:43:08.480 and that they'll get to New York, and then they'll get the discovery, which is the package

00:43:13.260 of information.

00:43:14.060 And then they'll make a decision as to what's going to happen here.

00:43:17.680 I will tell you that I'll be capped and obvious here that people have already assumed that

00:43:23.420 he did it and that he did it for the reasons that have been kind of tapped into the public

00:43:29.960 consciousness, which is that people have a lot of animus towards these health care companies

00:43:36.420 and these insurance companies for the way that they treat people.

00:43:40.100 You know, it's amazing to me if you take a look at this act, which normally, if this was

00:43:46.720 any other situation, people would be screaming.

00:43:49.960 But within hours of this act, Aetna had to reverse the fact that they had said they'd come

00:43:56.840 out and said they weren't going to pay for anesthesia for the entire length of an operation.

00:44:02.940 Right.

00:44:03.060 And they had to reverse that based on the kind of public outrage over this.

00:44:11.080 I remember, I'll be like Arthur and talk about prior cases, almost 20 years ago, I had a

00:44:18.100 young lady or family where the Cigna would not pay for the liver transplant and claimed it

00:44:26.540 was too experimental.

00:44:28.360 And until we organized a protest in front of Cigna, they changed their mind, but it was

00:44:33.740 too late.

00:44:34.300 And this beautiful 17-year-old girl died.

00:44:37.240 And we ended up trying to go after Cigna for that.

00:44:40.740 And it was amazing to me that became a kind of an issue in the then presidential election.

00:44:46.740 There are all kinds of public sentiment, and probably in a lot of cases, rightfully so, 1.00

00:44:55.060 where there are, if they embrace that and they go down that road, that jurors may say that

00:45:03.280 there is some mental element that justifies that if, in fact, it turns out that he is

00:45:10.520 the shooter.

00:45:12.020 And I think you have to focus a little bit on-

00:45:14.580 Wait, wait, wait, wait, wait, wait, wait, wait.

00:45:16.900 When you say there may be some mental element that justifies it, are you talking about an

00:45:20.640 insanity defense?

00:45:21.560 Because that's the only mental element that would justify this.

00:45:23.940 No, I don't know that that is the only mental element.

00:45:27.920 I don't know enough about the facts.

00:45:30.200 I don't know enough about the facts.

00:45:31.340 I'll tell you the facts.

00:45:32.180 He murdered Brian Thompson, I think because he's a nutcase.

00:45:36.260 I don't know that it's going to rise to an insanity defense.

00:45:39.020 But the reason we know it's not some speculation is because he had a fucking explanation written 0.83

00:45:43.720 down on his person right next to the gun that he used to shoot the man.

00:45:48.040 This is not going to be a tough one.

00:45:49.420 We don't need to pretend that this is like the Jay-Z situation.

00:45:52.820 He is cooked.

00:45:54.640 Okay.

00:45:55.240 Yeah.

00:45:55.500 I mean, the first thing I would do, Megan, is you order at a rate of payments.

00:46:00.680 Go ahead, Mark.

00:46:02.140 Yeah.

00:46:02.460 Just save the tape.

00:46:03.360 Go ahead, Arthur.

00:46:04.500 At a rate of payments.

00:46:06.240 At a rate of payments.

00:46:06.940 I haven't been in this position before.

00:46:08.580 I've represented someone who I don't know, Luigi.

00:46:11.620 But this guy, I got him, I got him the insanity defense without a trial.

00:46:17.040 Prosecutors agreed.

00:46:17.860 So you do what's called a 730 exam, right in arraignments, which means when he's incarcerated,

00:46:24.880 doctors who work for the city of New York and under the supervision of the judge examine

00:46:31.300 him.

00:46:31.600 And that examination isn't about his mental state at the time that the crime took place,

00:46:36.000 but his mental state at that point to see whether he can represent himself, to see if

00:46:40.940 he can help in his own defense.

00:46:42.680 If a judge says, this kid doesn't even know that we're on the planet Earth.

00:46:46.740 He thinks we're on Mars.

00:46:47.960 He just gets warehoused and keeps getting evaluated until that happens.

00:46:52.020 So he's not out on the street.

00:46:53.220 He's in a facility with bars and chains.

00:46:57.020 But then at times, if you find, your expert finds that this person is so, just really is

00:47:04.600 not in touch with reality, you could then bring him into the DA's office.

00:47:09.380 Their expert or experts evaluate that person.

00:47:12.800 And they can agree to, all right, we're not going to put him in prison.

00:47:17.740 We're going to put him in a hospital prison.

00:47:20.660 And statistically speaking, this is why you don't usually want to do that.

00:47:24.120 Statistically speaking, on murder cases, you spend more time incarcerated in a hospital

00:47:30.620 prison than you do if you pled guilty to 22 years to life and you're up for parole at

00:47:37.320 22 and then at 24 and then at 26 and then at 28.

00:47:40.540 Like, yes, you want them spending more time incarcerated than that.

00:47:43.860 A lot of these times, Megan, they really are, I need to use the word, like crazy, but they

00:47:48.220 are really crazy.

00:47:50.360 Like, it's scary.

00:47:51.500 John Hinckley Jr.

00:47:52.360 Got the brain.

00:47:53.660 After what, 40 years?

00:47:56.120 I'm just saying.

00:47:56.820 Like, it wasn't a life sentence for him.

00:47:59.400 But at 25 to life, you usually get out at 30, 32, 35 years.

00:48:04.340 So he was in there.

00:48:05.300 John Hinckley Jr.

00:48:05.900 Was in there a very, very long time.

00:48:07.760 This guy, you're telling me Luigi could get out, he could get convicted and he could

00:48:12.140 get out after 34 years?

00:48:14.360 Yes.

00:48:15.680 Absolutely.

00:48:16.400 That's ridiculous.

00:48:17.560 That's absolutely ridiculous.

00:48:19.600 This guy, how much more could you tell me?

00:48:22.780 Are they used to prosecute cases?

00:48:24.420 How much more could you ask for?

00:48:26.140 You find the guy.

00:48:27.740 He's got the gun on him.

00:48:29.520 He's got a confession saying, let me save you the trouble.

00:48:32.280 I didn't work with anybody.

00:48:33.300 It was me, all me.

00:48:34.380 And here's why I did it.

00:48:36.040 You've got his fingerprints at the scene.

00:48:38.660 You've got him on camera multiple times.

00:48:41.540 And you've got the exact GPS of where he was.

00:48:44.340 Look, Mark started off with, you know, do you come out and not lose credibility and admit

00:48:49.060 that it was him right off the bat so you don't look like a fool?

00:48:52.200 Whereas his first lawyer in Pennsylvania is like, I've seen no evidence that it was him.

00:48:56.740 And that's a little bit of a stretch.

00:49:00.600 What's more scary to me is the people who look at him as a hero and people who are putting money in a GoFundMe for him and whatever.

00:49:08.700 You know, some host on another television show when I was on tried to compare.

00:49:13.620 Luigi and the GoFundMe played Daniel Penny, the guy who was just acquitted in the subway.

00:49:19.980 I mean, it was absolutely ridiculous.

00:49:24.000 One guy, Luigi, plotted this thing out for a long, long time and executed someone.

00:49:29.620 This Daniel Penny woke up one day and was heading from point A to point B and saw something he thought was going to be of tremendous danger, if not death, to somebody else.

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00:50:52.680 So I have a question for you then, Arthur, because I'm glad you brought up Penny.

00:51:00.360 As somebody who has close family members who ride the subway, I do not understand for a second that prosecution by that DA's office.

00:51:12.280 And I said it before about Trump, which I never understood in that prosecution.

00:51:18.140 But this prosecution makes zero sense to me, Daniel Penny.

00:51:23.440 I don't understand it.

00:51:24.860 I don't understand.

00:51:26.340 Talk about be careful what you wish for.

00:51:28.580 When that jury came back, as they often do on a Friday afternoon around 3 o'clock and said, we're hung.

00:51:34.880 And then they gave the Allen instruction, which, by the way, I don't know why you guys still haven't had that declared unconstitutional in New York.

00:51:42.800 In our state courts, you can't do it.

00:51:45.260 Get back in there and deliberate.

00:51:46.300 The fact that they moved to have that greater charge dismissed and then have them come back on a Monday to deliberate on the lesser charge, if that isn't once in jeopardy, I mean, they should be – and they were trying anything to get a conviction.

00:52:04.440 What was the point of that?

00:52:05.860 What were they – what was the –

00:52:08.020 Luckily for Daniel Penny, it will never be appealed because when you win, you don't appeal.

00:52:13.500 So no one's going to know whether it was correct or incorrect.

00:52:16.460 Let me add to Mark's question because my question too was, so the prosecution, realizing that the jury was hung on the most serious charge in Daniel Penny, reckless endangerment, said, never mind, we'll drop it.

00:52:27.740 We'll pull it.

00:52:28.620 Okay, they can't agree on it.

00:52:29.720 We'll pull it and just make them decide criminally negligent homicide, yes or no.

00:52:33.580 And the reports uniformly said they dismissed the reckless endangerment without prejudice.

00:52:43.640 But hadn't Jeopardy already attached at that point?

00:52:46.740 How could they possibly have argued that they were preserving their right to try him again on reckless endangerment?

00:52:53.900 I'm not sure.

00:52:55.160 First of all, they were only able to do that with Judge Max Wiley's approval.

00:52:59.100 And I don't know what Judge Max Wiley said or what his ruling would have been.

00:53:05.020 So it's – and again, we're not going to find out because he was acquitted.

00:53:09.400 Let me just go back to the beginning, Mark.

00:53:10.840 But it doesn't Jeopardy attach when the jury is sworn in?

00:53:13.820 Yes.

00:53:14.460 The Jeopardy had attached.

00:53:16.020 That's what he said.

00:53:16.640 It was once in jeopardy.

00:53:17.260 That's why I don't think – I don't think that's relevant.

00:53:21.040 I mean, I don't think it was meaningful, oh, we were dismissing without prejudice.

00:53:24.880 Of course it's with prejudice.

00:53:26.380 They're in there to liberate it.

00:53:27.820 It's definitely with prejudice.

00:53:28.540 Yes, of course.

00:53:29.380 You're going back to the beginning.

00:53:30.660 Okay, go ahead.

00:53:31.920 Going back to the beginning, Mark, you know, when this happened, primarily because it was on video.

00:53:38.480 You know, you guys know this.

00:53:40.200 You know, when we were kids and you heard testimonial evidence, it was one thing.

00:53:44.040 But when you're actually watching and then you're actually – and it's the same thing with George Floyd.

00:53:48.360 If there was no video on the George Floyd case, we would never know the name George Floyd.

00:53:53.340 So it's the video that incites.

00:53:55.080 It's the video that makes things much more important.

00:53:58.680 And I think Greg had no choice but to put it into the grand jury.

00:54:03.720 However, those of us who have been prosecutors know there are ways to put cases into the grand jury to kind of maybe get one result or another result.

00:54:12.140 And they decided, look, they didn't overcharge the case.

00:54:15.260 I'm shocked they didn't ask for the higher charge of manslaughter in the first degree.

00:54:19.060 But they got the manslaughter, the man too.

00:54:21.560 It would be naive to say there wasn't a racial aspect to this, even though besides Daniel Penney, there was a black person holding him down.

00:54:30.480 It's the reason.

00:54:31.320 Well, the video was huge, though, Megan.

00:54:32.900 The video was huge.

00:54:34.600 When you watch a person's life get snuffed out like you watched George Floyd's life, you know, his leg, he's kicking, kicking, and then he just dies.

00:54:43.220 That's one human who is killing another human.

00:54:46.260 There's no doubt about that.

00:54:48.260 And, you know, that's not the type of thing that, you know, we really need to examine.

00:54:52.620 I go back to this, who would I rather have on the subway?

00:54:57.300 Of course.

00:54:58.240 Jordan Neely, or do I want Daniel Penney?

00:55:01.000 Well, that was in the summation, and I worked very, I was very supportive, I'll leave it at that, with the team on Daniel Penney's case.

00:55:10.240 They did a great job, Tom Kniff and Steve Reiser.

00:55:12.360 But here's where the prosecutor messed up.

00:55:15.600 The jury's charge, when the judge told them, is you cannot deliberate on the lesser included of criminally negligent homicide until you have a verdict on manslaughter in second degree, the more serious charge.

00:55:27.940 So they went under the assumption that, well, we'll get him on the criminally negligent homicide, but we're not going to get there unless we give them an out on the man too.

00:55:37.380 So if they're hung on the man too, they can't get to crim neg. 0.75

00:55:39.940 So we'll say, which is something we've never done before, dismissed the higher count and victim of the lesser count, and in fact, it backfired.

00:55:49.320 They dismissed him of the higher count.

00:55:50.640 They really wanted to get him, which just showed they were not just checking a box.

00:55:55.400 They desperately wanted to get him, and the reason they desperately wanted to get him is because you had a woke prosecutor.

00:56:00.660 She was on camera having said, oh, you know, I'm always looking for the racial justice, and I make sure I look out for the marginalized communities when I decide who to prosecute and who not to.

00:56:09.940 And in this case, she thought that Jordan Neely was the marginalized one, and Daniel Penny was some privileged white guy, even though he's like a former Marine with no money.

00:56:19.460 That's how this DA's office sees everything.

00:56:22.240 They're as woke as they come.

00:56:24.100 We've seen this time and time again from them.

00:56:25.980 It was video or no video.

00:56:28.700 He never would have charged this case if Penny had been black and had wound up holding Neely a white man in a chokehold to his death.

00:56:39.280 Never.

00:56:39.660 But what I just can't get my head around is how do you, as a defense lawyer, you defend against the more serious charge.

00:56:49.460 You go through all the case.

00:56:51.600 You're focused on the more serious charge.

00:56:54.200 The jury deliberates, says they're hung.

00:56:57.120 I defended the whole case.

00:56:58.940 You defend the whole case based on the more serious charge.

00:57:02.340 They're hung.

00:57:03.120 You give them the Allen charge, which in a lot of jurisdictions, as I've already mentioned, is unconstitutional, to coerce the jury.

00:57:10.100 They still stand tall.

00:57:11.980 And then you say, sorry, we were just joking.

00:57:14.380 We're going to dismiss that.

00:57:16.180 How is that not once in jeopardy on this case?

00:57:19.660 I don't understand that.

00:57:20.920 Well, the defense objected, first of all, the defense strenuously objected to the top count being dismissed.

00:57:25.640 And the reason why the defense bar was so up in arms over the weekend was we don't want this to be a trend where, Megan, prosecutors overcharge cases.

00:57:36.620 So, hey, I'm on the top count.

00:57:38.900 We get two bites at the apple.

00:57:40.140 All right, fine.

00:57:40.800 We need to get the man one.

00:57:42.720 We'll dismiss that.

00:57:43.640 Make sure you convict him on the man two.

00:57:45.200 But, again, it'll never be appealed since he was found not guilty.

00:57:49.380 I see that perfectly.

00:57:50.480 They have a reasonable, they have a reasonable, reasonable objection.

00:57:54.600 But listen, before we leave the subject of this, I want to do two things.

00:57:57.760 I want to talk about this DA.

00:57:59.240 Actually, let's do the civil suit in the Penny case first.

00:58:02.860 And then we'll go back to Alvin Bragg because he made just an outrageous decision about the Trump case.

00:58:07.560 And the judge, of course, sided with him because the judge continues to side with him against Trump, Judge Mershon.

00:58:13.480 But anyway, let's stick on Daniel Penny for a second because now Penny's off the hook criminally, but not civilly.

00:58:20.880 So much in the same way we saw in the OJ Simpson case where OJ got off criminally but then got sued by the Goldman family and lost, was found civilly liable for wrongful death of Ron Goldman and Nicole Brown Simpson.

00:58:36.100 And that's what they're trying to do to Daniel Penny.

00:58:39.220 So Jordan Neely, the decedent's father, has now brought a civil suit against Daniel Penny.

00:58:46.760 I mean, even though this guy was absent from his son's life, his son was in the system, in and out, on drugs and so on.

00:58:53.240 Where was the dad then?

00:58:54.480 Nowhere to be found.

00:58:55.300 But now that there's potential money involved, he's back.

00:58:58.500 And he's filing a civil lawsuit, Mark, where he wants to try to get blood from a stone.

00:59:03.040 That stone is named Daniel Penny.

00:59:05.140 What do you make of it?

00:59:07.460 Unfortunately, it's a story often told, and it is, to some degree, it's repulsive.

00:59:15.580 The whole idea here that you have, first of all, the idea that Daniel Penny would be prosecuted,

00:59:23.760 and I know that you want to go on to the civil, I just can't leave the criminal.

00:59:28.420 This, to me, was such an outrageous prosecution.

00:59:32.680 As a defense lawyer, and I'm not a member of the New York State Bar,

00:59:37.600 but I will tell you that if I was in the criminal defense bar, State Bar of New York, like Arthur,

00:59:45.560 they should be outraged.

00:59:47.040 They should be up in arms.

00:59:48.360 The idea that you can overcharge somebody, bring a prosecution like this, the jury, coerce the jury

00:59:57.040 by giving an Allen charge, a dynamite charge, and then pull this stunt and have this guy.

01:00:03.880 I mean, does anybody understand just how over the top this is?

01:00:09.000 You already said that.

01:00:10.820 I just, I can't.

01:00:12.540 We're moving forward.

01:00:13.500 No, you must.

01:00:15.940 I insist.

01:00:17.480 I refuse.

01:00:18.160 No, regarding, listen.

01:00:19.460 I'm hung about this, Megan.

01:00:21.060 I'm hung and I'm not moving.

01:00:23.180 Regarding the civil case, Megan, I have repeatedly said what you just said.

01:00:27.540 See, there's Arthur.

01:00:28.420 He had family.

01:00:28.760 He had family opportunity to reclaim the microphone.

01:00:31.680 There you go.

01:00:32.340 Go ahead.

01:00:32.640 He had, I'm trained in this, you know.

01:00:35.300 I, he, the father, the uncle, the aunt, all these people were there.

01:00:39.580 This guy, Jordan Neely was a sad case.

01:00:43.220 He was mentally ill.

01:00:44.300 He was a drug addict.

01:00:45.480 He was a criminal.

01:00:47.020 And yet I think one of the people in his family did give an interview and say, I would drive around Manhattan and try to find him.

01:00:54.240 And occasionally I would and bring him in my car and try to help him.

01:00:57.700 They gave, definitely gave him a lot more attention and depth than they did in life.

01:01:02.280 And that's why he's in the position that he's in.

01:01:05.940 And I know we focused on, on, um, these two individuals, Penny and Neely, but we need to look, I'll just speak for New York City.

01:01:13.420 The bigger problem with mental illness in the streets of New York, uh, Neely is not a unique character, unfortunately.

01:01:20.680 And it's not only the streets of New York, San Francisco, Los Angeles, Dallas, Miami.

01:01:25.880 There is mental illness that's prevalent.

01:01:28.480 I don't know if it's always been prevalent.

01:01:30.320 I don't know if it's a newer thing.

01:01:32.320 Drugs are much more, uh, intense.

01:01:34.480 Even straight up marijuana is much more intense, but they have this K2 stuff and people are like losing their minds and we are not doing anything to address it. 0.99

01:01:44.420 The NYPD is not supposed to be the entity that approaches a guy in the street who's doing nothing, but his pants are around his knees.

01:01:51.340 He's absolutely exposed.

01:01:52.840 It's 20 degrees outside.

01:01:54.260 We need like a different unit.

01:01:55.940 We need someone else.

01:01:57.120 It shouldn't just be cops putting handcuffs on a guy who doesn't even know his name and is dribbling.

01:02:02.880 We need to address this in a much bigger way.

01:02:06.880 And maybe the Daniel Penny case is opening up some eyeballs and some brain power to figure out how to prevent tragedies like this for happening.

01:02:15.080 Because it was a tragedy for Daniel Penny as well.

01:02:17.820 Of course, it was a tragedy for Neely and his family.

01:02:20.360 But for Daniel, maybe go through hell that kid for a year and a half.

01:02:23.800 Will for a little while longer.

01:02:25.320 It's fine for this dad to claim, oh gee, but there's going to be testimony about him.

01:02:31.000 There's a report in the New York Post saying he and his son would argue after the dad asked Jordan Neely to share the proceeds he earned from his performance as a Michael Jackson impersonator and he refused.

01:02:42.200 This dad was always trying to get money from the son.

01:02:44.480 That's how it makes it sound.

01:02:45.560 Even in death, he's trying to get money off of his son.

01:02:48.300 I don't think a New York jury is going to fall for this for one second.

01:02:52.400 I don't think he's going to get anything.

01:02:53.500 We'll see.

01:02:54.300 But wait, we've got to go back to Luigi because this just breaking as we're talking.

01:03:00.480 Arthur, they just charged him with murder in the first degree.

01:03:05.780 Are they listening to us right now?

01:03:08.800 Did we persuade them that the second degree wasn't good enough?

01:03:12.820 I will look at the subsections.

01:03:15.980 It would be interesting to see if, obviously we know he's not a cop, fireman, EMT or anything, peace officer.

01:03:23.740 I don't know if he was about to go testify at a congressional hearing or some sort of a trial.

01:03:29.260 They do know if you kill a witness.

01:03:31.500 So I don't know exactly what theory of murder in the first degree they're going to be looking for.

01:03:38.520 Or maybe they're just overcharging and see if it gets, you know, what sticks and if they want to lower the charge.

01:03:45.220 But a grand jury would have to approve the murder in the first degree charge.

01:03:49.920 That's what happened.

01:03:50.900 They said that he was indicted by a grand jury on murder in the first degree, charged with 11 counts, including murder in the first degree.

01:03:58.060 One count of murder in the first degree, two counts of murder in the second degree per The Washington Post.

01:04:03.000 So they did it.

01:04:04.160 There's got to be a reason why they were able to increase it.

01:04:08.560 And I have to say, thank God.

01:04:10.180 Thank God.

01:04:10.640 There's no way this guy should be getting out after 32 years.

01:04:13.760 Bullshit.

01:04:14.360 He cut this guy down in the prime of his life.

01:04:16.540 You know, 16-year-old, 18-year-old son running a big company, self-made, didn't come from any sort of money, Brian Thompson.

01:04:24.260 These cretins who are celebrating it are absolutely disgusting. 1.00

01:04:27.260 We saw a poll showing 41 percent of 18 to 29-year-olds approve of Luigi's behavior.

01:04:35.040 More than the number who disapprove, which was just 40 percent.

01:04:39.300 So not by much, but they do.

01:04:40.880 And so here's the question I have for you, Garagos.

01:04:42.760 Knowing that, if you actually do get hired by Luigi, like someone in your family did, do you go for jury nullification?

01:04:50.940 You try to stack the jury with young people, and you try at every turn to get in the terrible misdeeds of the insurance industry.

01:04:59.600 And when you get an objection from the prosecution that that is totally irrelevant to the trial, you try to sneak it in however you can.

01:05:07.460 Even if it gets stricken, you make the jury hear it, and you hope one of those young people is in that 41 percent.

01:05:14.240 There you go channeling your pro-ho again.

01:05:16.720 Just when I thought we had gotten to kind of you centered and being more moderate, you just go off.

01:05:23.000 Not on Luigi.

01:05:24.220 I am definitely very pro.

01:05:27.120 Like I said, I'm not going to go as far as Dickey and tell you that I've seen no evidence, but I don't know what the evidence is.

01:05:36.080 But I will tell you, whenever somebody argues about jury nullification, I'm always a little leery about that.

01:05:42.420 I, you know, there's always the overcharging by prosecutors.

01:05:47.280 I don't hear people, you know, protesting or being upset when prosecutors overcharge.

01:05:53.640 A defense lawyer has a duty, and that's to zealously defend.

01:05:58.380 It's different.

01:05:59.400 It's a different duty than the prosecutor.

01:06:02.200 The prosecutor is supposed to seek justice.

01:06:04.880 Now, what you call jury nullification, there, I'm sure, I would guess, there's going to be a robust exploration of the mental state of this young man if the facts are as simplistically and powerfully overwhelming as you've described them.

01:06:25.620 I just don't know that yet.

01:06:27.000 But if they are, as a defense lawyer, the first thing you do is you look at the evidence that the prosecution has.

01:06:33.020 At the same time, you walk and chew gum, and you take a look at exactly what the mental state of your client is.

01:06:39.880 And that's the important thing to do as a defense lawyer.

01:06:42.860 And you don't get swayed by kind of one side or the other.

01:06:47.060 And you're not looking necessarily, when people talk about jury nullification, I always say, well, yeah, there's only two things that are not appealable in the criminal law.

01:06:56.860 One is a not guilty verdict, as Arthur mentioned, and the other is a presidential pardon.

01:07:03.920 So those are the two kind of escape hatches.

01:07:08.060 That's what our Constitution is based on.

01:07:11.180 And I don't call it jury nullification.

01:07:13.200 I call it not guilty.

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01:09:09.620 This same DA we've been debating who brought the criminal charges against Daniel Penny for protecting those subway passengers

01:09:16.260 is the one who brought the charges against Donald Trump for falsification of business records around his nondisclosure agreement with Stormy Daniels.

01:09:25.220 And one of the many problems that Alvin Bragg now faces is, A, his client was elected president again,

01:09:33.900 and it's going to make sentencing Trump very complicated.

01:09:38.280 When will he serve his time, if ever?

01:09:40.460 Will there be actual time assigned and so on?

01:09:43.000 But secondly, the U.S. Supreme Court then ruled that presidents have immunity for their official acts

01:09:51.920 and that not only do they have immunity, but you can't even introduce into evidence in a case against them evidence of their official acts.

01:10:01.600 They're just totally off limits as an evidentiary perspective.

01:10:06.320 And yet that ruling came after this trial.

01:10:09.340 And at the trial, they did have testimony about Trump while he was in the Oval Office doing various things,

01:10:16.200 including with Hope Hicks, who was his advisor, and the prosecution argued that it had been critical evidence in closing.

01:10:25.160 So Trump recently filed a request to Judge Mershon to throw out the criminal verdict,

01:10:33.380 saying this is not consistent with the Supreme Court's ruling.

01:10:36.880 You allowed evidence in against me, which has now been deemed inadmissible by the highest court in the land.

01:10:41.340 And Mershon, shockingly, didn't see it that way and will not order a new trial and does not think that this was a problem.

01:10:51.300 So while we're on the subject of Alvin Bragg, what's going to happen in that case, Arthur?

01:10:56.420 You're a New York lawyer.

01:10:58.180 Well, the judge relied on what's called the harmless error.

01:11:01.440 He's like, even if it did come in, the evidence against Trump was overwhelming without this bad evidence.

01:11:07.580 So it's harmless error that I allowed it in, and we're going to stick with the result that the jury gave.

01:11:16.560 Typically, that's what an appellate court does. 0.96

01:11:19.260 An appellate court rules, yes, the trial judge should not allow this in.

01:11:23.040 He did allow it in.

01:11:23.940 The jurors did hear it.

01:11:25.260 But there was so much other evidence that it didn't matter.

01:11:28.100 So that's where we are with that piece of the puzzle.

01:11:30.800 The sentence in this case, I believe, was supposed to be July 16th.

01:11:33.580 Then in between the conviction and July 16th, that's when the Supreme Court decision came on, came down with the presidential immunity.

01:11:41.560 There have been all kinds of motion practice that was supposed to happen in September, that was supposed to happen in November, but that Trump won.

01:11:48.280 And I tried to look up today what the next date is for a sentence, and I don't see one.

01:11:54.540 But it may have just been announced because this decision came down yesterday.

01:11:58.500 A lot of people, maybe the judge was going to dismiss the case, but that was not the case.

01:12:04.660 And a 41-page opinion, so those of you know, in state criminal court is a very big opinion.

01:12:10.800 They're normally like four to five pages, not 41 pages.

01:12:15.080 There now has to be some sort of a sentencing to end this.

01:12:19.640 Alvin Bragg has suggested, let's just all agree or adjourn it until after President Trump's tenure as the president of the United States.

01:12:27.840 But a defendant has the right to a speedy trial, and this falls into all of his constitutional rights.

01:12:33.740 So I don't see that happening.

01:12:35.520 I think Merchant's hands are going to be tied, and he's going to have to sentence him to, like, you know, time served, which was the one day he had to surrender to be processed, or an unconditional discharge, which means, okay, you're going to go through life as president of the United States with 34 convictions hanging around your neck for the rest of your life and throughout the history, unless an appellate court reverses it.

01:12:58.240 And go on and be president of the United States.

01:13:00.900 What is he going to do?

01:13:01.300 He can't sentence him to probation.

01:13:03.240 He's going to check in with a probation officer every week as a president.

01:13:08.540 He can't sentence him to jail because the sitting president can't go to jail.

01:13:12.140 And I don't see any scenario where, okay, we're going to put this over four years and change, and then you'll go to jail after your presidency.

01:13:19.780 So I think a lot of nothing's going to happen.

01:13:23.180 I would suspect Merchant will give him a tongue lashing, saying you've been convicted, you're a convicted felon.

01:13:28.720 I think what you did was horrible, and you set a horrible precedent, ba-ba-ba-ba-ba. 1.00

01:13:33.220 But this is a unique case.

01:13:34.500 And I would have sent you to jail, but now I think I cannot send you to jail in the interest of justice.

01:13:40.260 You should send him in for community service.

01:13:42.180 He's about to do four years of that.

01:13:43.500 Go ahead, Mark.

01:13:44.220 I was just going to say, I didn't realize we'd be talking about this, but I pulled up the quote that I noticed yesterday that Todd Blanche, who's now nominated to be the number two at DOJ, wrote.

01:13:57.720 And he said, as a further illustration of D.A. Bragg's desperation to avoid legally mandated dismissal, D.A.N.Y. proposes that the court pretend as if one of the assassination attempts against President Trump had been successful, quote, unquote.

01:14:17.960 And that is exactly right.

01:14:20.260 There is no reason in the world for him to be sentenced, by the way, Arthur, you can correct me, but if this had been in most courts, the fact that he hasn't been sentenced means that he is not a convicted felon.

01:14:34.980 I don't know if there's some nuance in New York, but federally and in the state courts that I've practiced in, without sentencing, you're not convicted, per se.

01:14:47.800 And the fact that they had to dance on the head of a pin to try to say that the evidence that was brought in, where they're talking about things that happened when he was in office.

01:15:00.460 I mean, Megan, you covered this in real time.

01:15:02.980 They had all kinds of days and days and hours of evidence about what happened post-election at the White House.

01:15:11.140 And to say now, well, sorry, we were just kidding.

01:15:14.320 It was overwhelming.

01:15:15.640 And therefore, it didn't implicate presidential immunity is just nonsense.

01:15:21.620 The appellate court will see through this.

01:15:24.140 They will see how the prosecution argued in closing that that evidence about Trump's official behavior was critical to their case by their own admission, the prosecution's own admission, not to mention all the other ridiculous legal gymnastics that were pulled in this case.

01:15:39.240 There's so many appellate arguments here.

01:15:41.040 So many, so many arguments here.

01:15:43.540 It's a case of first impression.

01:15:45.000 It's a federal case brought in state court.

01:15:47.280 The jurors didn't have to be insistent on what underlying crimes Trump allegedly committed.

01:15:52.940 There is so much appellate practice here.

01:15:56.600 It's actually exciting.

01:15:58.700 Yeah, it is kind of exciting.

01:15:59.980 I can't wait to see it get reversed.

01:16:01.700 Okay, so we've got to move on to Derek Chauvin.

01:16:05.080 I don't understand this one.

01:16:07.140 Maybe you guys understand it better than I do.

01:16:08.740 I don't totally get what's happening here.

01:16:10.940 But the headline is that he has won the right to examine George Floyd's autopsy results as he challenges his murder conviction.

01:16:21.600 Lawyers for Derek Chauvin, quoting here from the Daily Mail, have been granted permission to examine heart tissue and fluid samples taken from George Floyd's body.

01:16:30.980 U.S. District Judge Paul Magnuson granted the motion after attorneys argued it was a heart condition that claimed the 46-year-old George Floyd's life, not Chauvin's knee on the neck.

01:16:46.740 The defense team now will have the ability to procure evidence from histology slides and tissue samples taken from the victim's heart during his initial autopsy, the results of which were used to convict Chauvin along with three other officers.

01:17:03.560 Chauvin's lawyers are also allowed to inspect and make copies of any photographs taken of Floyd's heart during the initial autopsy, which found Floyd's heart had stopped while he was being restrained and that his death was a homicide.

01:17:17.980 So what is happening here?

01:17:20.420 Who wants to take this one?

01:17:22.680 I'm not exactly sure why they would not be permitted to have all of that at the trial.

01:17:26.500 Well, usually, at least in New York, you get extensive access to the medical examiner's files, including some of the items that were just articulated.

01:17:37.360 They're in federal court now.

01:17:38.780 So he's exhausted all of his state court remedies.

01:17:42.100 So they're in federal court.

01:17:43.940 It's under, I assume, some sort of habeas corpus, free the body claim, saying, look, our theory of the case was it wasn't the choke that killed him.

01:17:53.240 There was other factors that killed him.

01:17:55.100 But we weren't allowed access to all of the initial autopsy, the best evidence that could have been provided to us.

01:18:02.740 We need that evidence to reopen this case and say, because we didn't have this evidence, we were not able to prove that it was a heart condition or drugs that were in his system that caused the death, not the compression on his neck.

01:18:18.080 And the judge is now saying, OK, I'm going to give it to you.

01:18:20.960 Go at it.

01:18:21.500 I don't like I don't get it because they definitely argued during the trial that it wasn't the knee on the neck that that caused him to die, that that that George Floyd was on a bunch of drugs and had a heart issue and a lung issue that caused his death.

01:18:39.440 And I don't get why they wouldn't have done the whole let's see the tissue to see the deprivation or whatever they're looking for during the course of the trial or how the judge could be going down this lane.

01:18:49.960 I mean, is there a chance here, Mark, that this judge is going to grant the request for a new trial, which is what they're asking for, or at least an evidentiary hearing?

01:19:00.240 So I'm going to wildly speculate because I wish I could talk to the lawyer who's representing him, but it has.

01:19:09.140 I'm like Arthur trying to figure this out, that you would assume that you had access to this.

01:19:14.620 And he had a very able defense lawyer.

01:19:17.280 I was always impressed with the way he tried the case.

01:19:20.920 I'm going to assume that there is an ineffective assistance of counsel claim, which is often the case when you get to federal court under a 2255 that you allege that the defense lawyer didn't do ABC or D.

01:19:36.680 And one of the ways you would prove that is that they didn't get or that there was some, I guess, the flip side to that prosecutorial misconduct for not turning over certain items.

01:19:48.620 If there are items that were not turned over or if the defense lawyer did not request those items or the items somehow got lost in transit, then I could see where this revolves around either prosecutorial misconduct or IAC.

01:20:03.840 Wild caveat, wild caveat, wild speculation.

01:20:06.600 But even if you and the point you made, Megan, if in fact, and it was, you're absolutely right that they argued that in closing, and if they find something that either wasn't turned over or should have been requested that supports that and supports a narrative that if the jury had known about it, it would have changed the direction of the conviction.

01:20:31.480 And I can see where this gambit has legs.

01:20:36.660 This should be reexamined.

01:20:40.360 There was so much pressure.

01:20:43.460 You got to watch the fall of Minneapolis by Alpha News.

01:20:46.660 You can, I think, just Google it on YouTube and watch it on their YouTube channel.

01:20:49.700 That's a very respected news organization there in Minnesota.

01:20:53.000 And they took a deep dive on this and found the amount of pressure that was on the coroner to say, oh, the official cause of death is cardiopulmonary arrest caused by law enforcement, caused by law enforcement, as opposed to maybe it was caused by drugs.

01:21:09.460 Maybe it was caused by, you know, the stress.

01:21:11.460 But that guy was under pressure.

01:21:13.740 The DAs were under pressure.

01:21:15.520 I mean, the jury was under pressure.

01:21:16.580 All of these people were under.

01:21:17.660 This guy did not get a fair trial, and he should be given a new trial.

01:21:22.120 I really hope he gets one.

01:21:23.740 Okay, last but not least, Liam Payne, the former singer of One Direction, who died in a Buenos Aires hotel room a couple of months ago on October 16th.

01:21:38.140 He was just 31 years old.

01:21:40.060 There's something interesting happening now in that investigation.

01:21:43.540 The Rolling Stone exclusive reporting that, according to new documents they've obtained, the judge in the case has charged, that's the word they use, two workers, including the receptionist head, who called 911 as the judge investigates them for wrongful death.

01:22:03.440 The judge has also called for all suspects in the case to be questioned as part of the investigation.

01:22:09.640 The judge is investigating them, again, for wrongful death, being investigated for possible imprudence, negligence, or lack of skill in their profession, leading to the death of another person, according to the statute.

01:22:23.220 According to the Buenos Aires judicial system, after interrogation, the judge must determine whether the defendants should be further prosecuted, dropped from the case, or if there is not evidentiary support for either decision.

01:22:36.560 Remember, this guy went off the balcony when he was reportedly, well, he was seen to be high on drugs or appeared to be high on drugs.

01:22:45.440 So, what do we think is happening here?

01:22:48.280 I don't think either of you guys are likely admitted in Buenos Aires, but what's happening, Arthur?

01:22:54.320 Who are they trying to charge?

01:22:57.540 Like the security staff, the front desk person, because they knew that he was acting crazy.

01:23:06.120 Apparently, he had reportedly broken a TV, and there was buzzing around him like something's wrong with this guy.

01:23:12.520 And I think the allegation is they didn't do enough to stop this.

01:23:15.440 So, the only thing analogous was here, and actually in Brooklyn, New York, they charged some child welfare agency workers who worked for the city with criminally negligent homicide when a parent caused the death of their child when there had been reports that there was some domestic violence in the house.

01:23:37.660 But apparently, the investigators went there, and they didn't see anything, but there were real questions about, did they do a thorough investigation, or did they ring the bell and say, okay, we were here and leave?

01:23:47.220 And I believe they pled guilty to a very low charge of murder.

01:23:51.920 They were held responsible for something that they were very far away from when it took place.

01:23:56.700 I mean, if we're going to start charging people with murder for not being good citizens, now, of course, this is in Buenos Aires, not in Brooklyn, New York, but that raises the standard on all of us as human beings to act.

01:24:08.860 Then you juxtapose that with Daniel Penny, who did act to say someone almost went to jail himself.

01:24:14.800 It gets a little confusing.

01:24:15.920 Hey, I'd like to point out that Arthur brought it back to Daniel Penny, not me, who was still stuck at Daniel Penny.

01:24:22.840 So I just want to point that out.

01:24:25.120 It's okay, Mark.

01:24:25.580 I like story time with Arthur.

01:24:27.700 Yes, exactly.

01:24:29.200 But I'm not so sure that this isn't a function of the Argentinian process.

01:24:37.740 It's similar to some of the European countries where the judge does the investigation.

01:24:42.800 There's a prosecutor, the prosecutor kind of lays it in the lap of the judge, and the judge is more of an activist role as opposed to an adjudicative role.

01:24:51.740 Like in Italy.

01:24:53.180 Yeah, exactly.

01:24:54.400 And I think that's what's happening here would be my uninformed, unadmitted in Argentina speculation.

01:25:02.120 This is, I mean, we'll find out.

01:25:03.540 I'm happy to jump back and talk about Daniel Penny again.

01:25:07.120 Did you really like the Allen charge?

01:25:08.900 Did you think it was right, the way they dismiss it without prejudice and it can be brought back?

01:25:11.820 I think the Senate's a good message.

01:25:13.100 Look at that.

01:25:13.880 You know, I mean, like I said, I'm giving you, I'm giving the pro-ho all of her ammunition that she needs. 0.97

01:25:20.380 Does, what is this, does it stand for prosecution ho, like horror? 0.81

01:25:24.220 Yeah, I don't know what this nickname is.

01:25:25.940 I'm not going near it.

01:25:27.000 You know, I don't, it's a little scary.

01:25:28.360 That's exactly what it stands for, Megan, prosecution ho. 0.97

01:25:32.200 How am I supposed to celebrate the horror label?

01:25:37.520 I object on my own behalf.

01:25:39.920 I object on behalf of Doug.

01:25:42.160 Okay.

01:25:42.560 Yeah, this is your chance to apologize.

01:25:44.500 I'm not hearing anything.

01:25:45.620 So now, now you got to go.

01:25:47.100 Segment's over.

01:25:48.000 It landed on a very dark note.

01:25:50.180 Arthur, Merry Christmas.

01:25:52.720 Mark, good luck.

01:25:55.440 Thank you, Megan.

01:25:56.840 To you too, and Happy New Year.

01:25:58.520 Merry Christmas.

01:25:59.520 Love you guys.

01:26:00.040 Thanks for coming on.

01:26:01.340 Bye-bye.

01:26:01.560 Take care.

01:26:02.900 All right, see you soon.

01:26:04.300 And that will wrap up today's edition of Kelly's Court.

01:26:08.280 I'll allow Mark to use that word with me because the last time he did it, I laughed and told him it was okay.

01:26:13.060 But it hasn't grown on me.

01:26:14.460 Now I'm actually going to start objecting to it.

01:26:16.440 He means it lovingly.

01:26:17.420 He's a defense guy.

01:26:19.080 He's trying to say I'm much more prosecution, which he's right.

01:26:22.080 I am.

01:26:22.980 But it's case by case.

01:26:24.800 I mean, you know, I was definitely not pro-prosecution in the Trump case.

01:26:27.900 I was not in the Daniel Penny case.

01:26:29.460 So, you know, I recognize very well that these prosecutors can be, and they must be called out when they behave that way.

01:26:37.460 I hope you don't have any in your life this Christmas holiday.

01:26:42.820 And I look forward to getting you through it, if you do, with some exciting and interesting true crime episodes all week.

01:26:51.560 We'll see you tomorrow.

01:26:54.280 Thanks for listening to The Megyn Kelly Show. 0.94

01:26:56.220 No BS, no agenda, and no fear.

01:26:59.460 Thanks for listening to The Megyn Kelly Show. 0.94

The Megyn Kelly Show - December 23, 2024

Jay-Z Accuser Inconsistencies, Murder One For Mangione, and Trump Lawfare Latest, with Arthur Aidala and Mark Geragos ｜ Ep. 972

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