Merrick Garland's Potential Felonies, and New Evidence in Idaho Murders Case, with Ric Grenell, Marcia Clark, and Mark Geragos ｜ Ep. 577
Episode Stats
Length
1 hour and 35 minutes
Words per Minute
174.78702
Summary
The New York Times confirms what a whistleblower from the Hunter Biden investigation told Congress about the handling of the case. Megyn and Rick Grinnell dig into it all, with a special guest, former Director of National Intelligence and U.S. Ambassador to Germany, Rick Grannell.
Transcript
00:00:00.420
Welcome to The Megyn Kelly Show, your home for open, honest, and provocative conversations.
00:00:12.020
Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show.
00:00:18.140
Either Attorney General Merrick Garland is lying,
00:00:21.180
or the IRS official who oversaw the investigation into Hunter Biden,
00:00:26.080
who's now speaking out on the record as a whistleblower, is misleading us.
00:00:29.720
That is how the choice appears, and only one can be true.
00:00:34.220
The implications to this are huge, and there's new reporting on it today from The New York Times.
00:00:38.580
Joining me now to dig into it all is Rick Grinnell, a close confidant of former President Trump.
00:00:43.260
Rick, of course, served as Acting Director of National Intelligence and U.S. Ambassador to Germany during the Trump administration.
00:00:49.880
Rick, welcome back to the show. Great to have you here.
00:00:52.460
Thanks for having me, Megyn. Always a pleasure.
00:00:55.640
Here we go again, in The New York Times, of all places, confirming what this whistleblower from the IRS investigation into Hunter Biden told Congress.
00:01:07.520
He was the chief investigator on the Hunter Biden case and said this was mishandled time and time again,
00:01:12.080
that the U.S. Attorney for Delaware, David Weiss, who was in charge, had told this whistleblower, Shapley, and several other FBI agents and other law enforcement agents,
00:01:24.600
that he, Weiss, was empowered, or sorry, was not empowered to bring charges in any jurisdiction other than Delaware,
00:01:32.600
and that he was going to need the cooperation of the DOJ and others within the DOJ to make those charges happen and so on.
00:01:37.740
Merrick Garland says exactly the opposite was true, that he had empowered Weiss to bring charges wherever and on whatever he saw appropriate.
00:01:48.740
It's a clear diversion between what Weiss allegedly told the whistleblower and other FBI and related law enforcement agents and what Merrick Garland's saying.
00:01:59.720
So we don't know what is true, but if what the whistleblower is saying is true, then it explains why Hunter Biden didn't get charged with more,
00:02:07.400
why they stopped it, slap on the wrist charges about tax incidents and so on.
00:02:12.680
And today we have The New York Times confirming what the whistleblower said.
00:02:22.340
So the whistleblower comes forward and says, they tie this guy's hands, that Merrick Garland was tying this guy's hands.
00:02:31.940
And then you have Merrick Garland coming out and saying, that's a lie.
00:02:36.080
He told Congress under oath in March, Merrick Garland did, that he had empowered David Weiss to do everything and anything.
00:02:43.240
It's important because it's under oath and it's probably going to come back to haunt him.
00:02:47.860
Let's indicate that the Justice Department and the FBI had at one time over a dozen sources that provided potentially criminal information relating to Hunter Biden.
00:03:02.100
So as the committee well knows from my confirmation hearing, I promised to leave the matter of Hunter Biden in the hands of the U.S. Attorney for the District of Delaware,
00:03:13.120
who was appointed in the previous administration.
00:03:15.960
So any information like that should have gone or should or should have gone to that U.S. attorney's offices and the FBI squad that's working with him.
00:03:26.820
I have pledged not to interfere with that investigation and I have carried through on my pledge.
00:03:34.960
Now, that is not at all what the whistleblower is saying happened here.
00:03:38.240
He's saying that David Weiss was shut down at every turn by Merrick Garland's U.S.
00:03:41.820
attorneys and other jurisdictions saying, I'm not touching it.
00:03:45.000
And that that stopped the investigation, among other ways in which he alleges Merrick Garland interfered.
00:03:51.400
Merrick Garland comes out on Friday to respond to the whistleblower.
00:03:55.080
Mr. Weiss, who was appointed by President Trump as the U.S. attorney in Delaware and assigned this matter during the previous administration,
00:04:05.640
would be permitted to continue his investigation and to make a decision to prosecute any way in which he wanted to and in any district in which he wanted to.
00:04:15.960
The only person with authority to make somebody a special counsel or refuse to make somebody a special counsel is the attorney general.
00:04:26.400
The whistleblower alleges the opposite, that Weiss told him he had asked to be labeled special counsel so he could just bring the charges everywhere,
00:04:37.540
wouldn't be limited to Delaware, and that Merrick Garland denied the request.
00:04:41.240
There's a clear divergence between what the whistleblower is saying, what Merrick Garland is saying, and the New York Times is now reporting that they too can confirm this IRS investigator's testimony is absolutely at odds with what Merrick Garland said.
00:04:57.860
They've done their own investigations of the whistleblower's claims and also confirming here that David Weiss went to at least two other U.S. attorneys, one in California, one in Washington,
00:05:12.120
asking if they would bring charges that they would help with an investigation against Hunter, and he was turned down.
00:05:21.440
Because there's been talk by Kevin McCarthy of possible impeachment proceedings against Merrick Garland.
00:05:27.700
And I'll tee up one other soundbite for you, Rick, and that is Ted Cruz, Senator Ted Cruz, who went so far as to say if this whistleblower's claims are actually true in The New York Times,
00:05:36.640
now advancing it, saying we see the same divergence in testimonials here, there should be absolute penalties to Merrick Garland.
00:05:45.320
Now, every word he said there is a lie and the self-righteousness with which he says it, man, I got to say it's time.
00:05:59.340
The Department of Justice needs to appoint a special counsel to investigate Merrick Garland for obstruction of justice and perjury.
00:06:11.520
Now, there's a reason he's saying don't ask these questions.
00:06:18.940
And I want to walk through it because that is a very serious statement.
00:06:22.960
But at this point, the evidence that Merrick Garland personally committed multiple felonies is growing greater and greater.
00:06:31.780
And the chances that the Merrick Garland Justice Department will fairly investigate evidence of his wrongdoing are zero.
00:06:44.120
Asking for criminal charges, saying we need a special counsel to investigate the attorney general of the United States for crimes, including obstruction of justice and perjury in connection with this case.
00:07:05.480
I know personally that they are doing really good, detailed work before they come out with charges.
00:07:12.700
Secondly, I'm really struck, Megan, with, you know, we talk a lot about the two tiers of justice, the two standards of justice in Washington, D.C.
00:07:24.380
But I'm struck with the two differences in how leaks happen in Washington, D.C.
00:07:34.600
We don't even know what the outcome of this Donald Trump investigation is on the classified information charges.
00:07:44.620
But they're already leaking before we have any charges, before the finality.
00:07:54.340
CNN seems to get it all the time to kind of spin before we let the justice kind of system move forward.
00:08:04.060
Contrary to that, you've got to give it to this whistleblower.
00:08:10.880
He waited to see he didn't try to weigh in beforehand and push the process.
00:08:17.080
He did exactly what he's supposed to do, which is become a whistleblower after there is an outcome that seems to be a problem.
00:08:28.400
I think we've got to ask ourselves, why are leaks in Washington, D.C. from the bureaucracy always trying to slam against Republicans before justice is delivered?
00:08:39.800
Or before what seems to be the process is finished?
00:08:44.240
And so I want to point that out because I think it's really relevant to the whistleblower's credibility.
00:08:49.520
The second, the third point that I would say is I disagree with Ted Cruz a little bit of no more special counsels.
00:08:57.420
I mean, if he lied, let's look at the evidence and let's have Congress step up and do something.
00:09:06.040
But, you know, a special counsel means a whole bunch of more money for the U.S. taxpayer.
00:09:09.840
It means a whole bunch of more time and justice delayed.
00:09:16.360
We've got to get to the point where if we're going to lecture other countries on the rule of law, that we've got to clean up our rule of law.
00:09:23.660
I'm sick and tired of having justice delayed because it's really justice denied.
00:09:33.400
You've got to ask yourself, why do they keep coming after Trump constantly?
00:09:39.600
But then you see the Biden family completely get away with a whole bunch.
00:09:44.020
So I'd like to see Congress step up and move a little bit quicker than just appointing another investigation.
00:09:51.420
How would they even appoint a special counsel to investigate the attorney general of the United States when it's the attorney general's job to appoint special counsels?
00:10:02.600
As the AG has to appoint him or her, which is not going to happen from Merrick Garland to investigate himself.
00:10:13.480
But you're right that the most fruitful means of exposing what's happening in this whole lane thus far has proven to be those those House Republicans.
00:10:23.300
And Comer, the guy who heads up the Oversight Committee, has been saying, same as you, no more special counsels for any of this, because all they do is take the ball, hide the ball, manage to keep everybody from being able to talk to Congress because they can just say, oh, it's being handled by the special counsel.
00:10:42.600
And so Comer so far has proven very adept at getting us the information that's out there.
00:10:48.300
Yeah, look, politicians in Washington, D.C. have got to move away from just voting, showing up and voting and then fundraising and saying, oh, look what I did.
00:10:56.820
I voted on something and take their responsibility of oversight a little more seriously.
00:11:02.660
When you have responsibility for oversight, then you've got to use the power of subpoenas and you've got to get to the bottom and you've got to call it out and vote on an actual action.
00:11:19.120
I don't want to see this process kind of, you know, continue on, continue on.
00:11:24.920
But one other point, just because I know Washington, D.C. and I know the swamp pretty well, there is a system in place where if you get appointed to a job by somebody, you have to remember that they're writing your annual review, those people.
00:11:44.100
And so the only way that you move up in Washington is to get a good annual review, please your bosses, don't rock the boat too much, get rewarded with a bigger office, a bigger title and more money on the GS scale.
00:12:00.100
And so no career person is going to try to investigate their bosses because Washington, D.C.
00:12:09.160
bureaucrats are filled with a bunch of fear that they are going to not be able to be promoted.
00:12:14.740
It's one of the reasons why I believe wholeheartedly we've got to start moving these agencies out of D.C.
00:12:20.140
because people go from, you know, Department of Justice to the FBI, to the Department of Commerce as bureaucrats.
00:12:27.540
And it's all the same pool of people in Washington.
00:12:35.240
You're asking them to completely implode their lives by stepping out.
00:12:39.180
You know, there's very little reason to suspect that the Senate is going to do anything about the lies that may have been told by Merrick Garland.
00:12:51.220
I mean, I was just thinking about this the other day.
00:12:53.180
Victor Davis Hanson had a great column about how, you know, Trump's right hand man, his sort of valet.
00:13:05.060
I can't remember how you pronounce his last name.
00:13:06.720
But he's also been indicted as Trump's alleged co-conspirator in connection, nada, in connection with the whole documents thing.
00:13:16.560
Well, for allegedly saying when asked by investigators, did you move the documents?
00:13:25.800
And Victor Davis Hanson pointing out that, you know, you had James Comey saying those things hundreds of times in his testimony.
00:13:34.280
You had James Clapper testifying before Congress that he did not wittingly, you know, participate in the NSA spying program, that there was no such program.
00:13:44.960
So no, absolutely no penalties for any of that.
00:13:47.760
So now they but it's a different story if you're connected with Trump.
00:13:52.760
If your name is Merrick Garland, even though you may have provided obviously untruthful testimony before Congress.
00:14:05.800
And that's why I think a lot of people are frustrated with Congress.
00:14:12.600
There's analysis paralysis and let's let's move on.
00:14:16.560
I have to be careful on the documents case, the Jack Smith case, because I've been hauled in front of the grand jury.
00:14:25.060
I can say that because it's been reported by CNN.
00:14:28.160
But I just want to tell you how crazy the system is, is that when I was hauled in front of the grand jury to testify, I wasn't even in Washington, D.C. when they packed up the boxes.
00:14:38.180
I was already back in Los Angeles, which they knew, but they didn't care.
00:14:42.540
They wanted to put all of the Trump people through the ringer, make us pay for lawyers, try to take time away from your business, just harass you.
00:14:53.960
But I got the finger waving to me at the end of my grand jury testimony from the prosecutors.
00:15:07.040
They try to scare you with telling you to shut up.
00:15:10.500
Don't talk about anything that was discussed or planned.
00:15:17.140
By the time I walked to my car, which was underneath the courthouse, I got into the car and the driver said, oh, you're on CNN.com, your whole testimony.
00:15:31.460
They have the exact, literally exact questions and exact documents that they showed me to ask me questions for.
00:15:42.240
Now, there is only one possible way that that happens.
00:15:45.200
Somebody inside the prosecutor's office leaked everything while I was inside the grand jury because somebody had to have time to get all of that up by the time I finished the testimony and walked down to my car, which took about three minutes.
00:16:03.000
It's really outrageous what happens in Washington, and people need to wake up.
00:16:07.400
This is the system in Washington that is not about the rule of law.
00:16:15.140
We've got to move the power base outside of Washington, move it back to the American people.
00:16:20.420
And I will say this to all the people watching.
00:16:22.940
You have a responsibility to get involved and to dig deep.
00:16:27.040
Don't just watch one podcast or one newscast or just read The New York Times.
00:16:34.620
You can't just sit back and watch Washington, D.C. types dupe you because that's exactly what they're doing.
00:16:42.600
That reminds me of what happened to James O'Keefe.
00:16:45.360
Remember when his home got raided at 5 a.m. as the feds do when they're going to raid you?
00:16:51.520
And that morning, I mean, almost simultaneously, The New York Times had an article about it.
00:16:58.700
It wasn't James O'Keefe calling The New York Times.
00:17:01.020
It was obviously the feds trying to embarrass one of the president's critics over this, you know,
00:17:07.040
or more than embarrassed about whether to publish Ashley Biden's diary.
00:17:11.180
Yeah, I think look, I think more than embarrassed, they want to intimidate.
00:17:14.100
They want to send a message to everybody else that we're coming for you.
00:17:20.240
And as you know, I've said this a million times, worked at the State Department for 11 years.
00:17:24.660
I've worked on all of the human rights reports that come out.
00:17:27.620
I work on all of the reports that, you know, finger wag from the State Department to other countries about the rule of law.
00:17:35.040
We spend lots of money, tens of millions of dollars, hundreds of millions of dollars, U.S.
00:17:41.000
tax dollars to help other countries train their judges and train the legal processes,
00:17:47.300
D.C.'s people involved, so that you have a upstanding rule of law.
00:17:53.520
I have to say that we've lost our moral compass underneath the Democrats.
00:17:57.880
They cannot finger wag about the rule of law to other countries.
00:18:02.040
When we see what's happening in D.C., selective leaks and a clearly double standard, everybody sees this.
00:18:09.260
When I travel through the Balkans, I hear people, leaders, others saying to me, what's going on in the United States?
00:18:16.060
Why are you guys telling us to clean up our act or stop corruption?
00:18:21.120
Clearly, it's happening right in our country and not a lot is being done about it.
00:18:27.560
Now, understanding that you're limited in what you can say on the documents case against Trump because you were called as a witness.
00:18:33.200
Let me ask you about the latest on that tape recording that was leaked to CNN by by whom, whomever could have leaked it.
00:18:47.360
I mean, it doesn't exactly make Trump sound good.
00:18:51.200
It sounds like he's got a classified document there, though he's denying it.
00:18:54.080
But Catherine Herridge points out she reports for CBS News now that it actually doesn't relate to one of the 31 documents he's accused of improperly keeping.
00:19:03.720
It's not one of the 31 classified documents he's accused of keeping, even whether whether we know the feds don't have the document.
00:19:11.100
They didn't find it in any of his Mar-a-Lago documents.
00:19:15.300
Well, I guess it's relevant because they're going to show see see members of the jury.
00:19:18.400
He knew that he had classified material, confidential national security defense information.
00:19:25.660
He was careless, which, as I understand it, at this point in the case would be, you know, part of the story, but not a requirement to make the case against Trump.
00:19:35.040
In any event, it's dominated the news cycle now for a couple of weeks.
00:19:40.480
Trump's allegedly waving a document around and saying that these are plans submitted to me by the Defense Department, by the military that have a draft attack in Iran outlet outlined.
00:19:53.940
Now, his first defense to Brett Baer when he commented on this last week was there was no document.
00:20:11.040
When I said that I couldn't declassify it now, that's because I wasn't president.
00:20:21.360
That was a massive amount of papers and everything else talking about Iran and other things.
00:20:34.080
These were newspaper stories, magazine stories and articles.
00:20:37.020
I don't think I've ever seen a document from Millie.
00:20:42.600
But the actual audio reporting recording suggests he's saying, here's something that was given to me by the military.
00:20:49.860
Well, now he's saying something kind of similar, a little, little different.
00:21:01.540
I had a whole desk full of lots of papers and mostly newspaper articles, copies of magazines, copies of different plans, copies of stories, having to do with many, many subjects.
00:21:11.960
And what was said was absolutely fine and very, very perfectly.
00:21:25.080
You're not concerned, then, with your own voice on those recordings?
00:21:32.860
In fact, you could hear the rustle of the paper.
00:21:35.720
And nobody said I did anything wrong other than the fake news, which, of course, is Fox, too.
00:21:40.680
Are there any other recordings that we should be concerned of?
00:21:42.940
I don't know of any recordings that you should be concerned with because I don't do things wrong.
00:21:53.120
And then just to add to that, Rick, he goes on.
00:21:56.360
He spoke to Semaphore, which is a relatively new news organization, saying it was bravado, if you want to know the truth.
00:22:03.360
I was talking and just holding up papers and talking about them, but I had no documents.
00:22:12.380
He said he was referring to building plans and plans for golf courses strewn about his desk, which does contrast to what's in the recording, where he says the military gave this to me.
00:22:27.080
Yeah, look, first of all, let me just speak directly to Jack Smith that I know nothing about this.
00:22:34.200
And if you're going to drag me in to talk about it, I'm just going to give you the exact same line, which is I don't know anything.
00:22:39.540
But let me just speculate here because I know President Trump and I heard the recordings and I've seen this.
00:22:47.520
There was a New Yorker piece that really got people riled up.
00:22:54.860
And it was a piece that said that Milley presented this plan.
00:23:00.760
General Milley presented this plan to attack Iran and that, you know, we in the Trump administration thought about it and were making plans for it.
00:23:15.220
It goes to the heart of the Trump doctrine, which is use diplomacy and tough diplomacy, sanctions, et cetera.
00:23:24.080
You know, isolation to get your enemies to do something rather than war.
00:23:30.220
Remember, Donald Trump is all about I didn't start any war, didn't plan to start any war.
00:23:37.460
And I can tell you that that New Yorker piece was outrageous to me.
00:23:42.460
I was, you know, thinking, how dare they do this?
00:23:48.620
I could talk to other people in the administration.
00:23:52.960
If Milley had something, then he did it on his own and then he pitched it to the New Yorker.
00:23:57.280
That piece had just come out when they were having this talk.
00:24:02.280
And to me, it would be very obvious to hold up the New Yorker piece and say, you know, see this?
00:24:10.400
This is saying that the documents existed and him talking about it.
00:24:18.000
But to me, this all makes complete sense in trying to bat down the narrative that somehow
00:24:27.200
And the New Yorker piece goes not only to say that there were there were plans,
00:24:33.300
but that Milley presented those plans to Trump and that we were considering that.
00:24:38.960
I mean, the thing is, like I he does get specific in the audio tape that making it sound like
00:24:46.300
But I said from the beginning, before we even heard the recording, what Trump is now saying,
00:24:52.980
It could have been Trump being like, I've got it right here.
00:24:58.800
We don't know whether Trump actually had the document in hand or not.
00:25:03.160
Yeah, look, I listened to the recording a couple of times.
00:25:06.840
And if you put in your mind that he's holding up the New Yorker piece, it makes total sense.
00:25:11.040
It's like, look, I this is because the New Yorker piece was very specific.
00:25:15.020
And when you're holding it up, you're like, look at this.
00:25:17.100
This is the plans that they said that, you know, we had.
00:25:27.260
We have we have a we'll play the shorter version because we played the full version yesterday.
00:25:30.600
But here's a here's a clip of that alleged meeting.
00:25:33.860
Well, there was a meeting between Trump and it was about Mark Meadows book.
00:25:37.900
And this is the one that has caused so much trouble here.
00:25:58.680
They presented me this off the record, but they presented me this.
00:26:09.520
This totally wins my case, you know, except it is like highly controversial.
00:26:27.420
Yeah, we'll have to try to figure out this president.
00:26:38.520
So, I mean, that doesn't sound like he's holding up a newspaper article, but it doesn't prove he's
00:26:48.240
But the reality is, to me, is that Donald Trump gets emotional about a lot of these articles.
00:26:56.280
And it goes at the heart of what we were trying to say, is that we didn't do war.
00:27:01.900
And it makes perfect sense to me that this very detailed The New Yorker piece, which lays
00:27:08.160
out plans and says that we were I mean, it's literally General Milley, who was our guy who
00:27:14.560
was supposed to make war plans and be prepared, saying, oh, no, we I did this and I presented
00:27:20.380
this to the president and they were going to go to war.
00:27:26.640
And to me, it makes perfect sense that he's holding up something that says this is so
00:27:40.420
I've been listening to Alan Dershowitz a little on this and I love Dershowitz, but he's been
00:27:48.660
I know you're not a lawyer, but I don't even know whether this is going to be admissible
00:27:51.860
if it doesn't prove one of the 31 documents that were allegedly improperly handled and
00:28:02.740
Because what Catherine Herridge was saying and now I take your word that Dershowitz was
00:28:08.580
saying it's a very big deal because if they don't have the document or proof, then they
00:28:19.460
And that, to me, is clear evidence why they're leaking this audio tape, because they just
00:28:25.380
want to, you know, push like they did on on the Russia, Russia, Russia hoax with innuendo
00:28:32.100
half, you know, information and then have everybody jump to the conclusion who's political.
00:28:39.180
Well, this is getting actually more and more interesting as we talk about it, because so
00:28:42.620
if there's a question about whether this document could come in, given that it doesn't speak
00:28:47.000
directly to one of one of the charges in the indictment or in one of the documents he's
00:28:50.920
alleged of improperly holding on to, then why did it why is it leaked?
00:29:01.260
But but look, I would present to you sized and I criticize him, too.
00:29:09.180
You know, let the lawyer go in there and argue it however he or she wants.
00:29:12.060
But the more the client speaks about it, the less he's able to be nimble.
00:29:21.580
And that's a very scary and important one because he could go behind bars.
00:29:25.340
But he's also got a PR war because he's running for president.
00:29:27.740
So it's he's almost in the position of having to say something because otherwise he's laying
00:29:32.540
down on the PR war, which leads directly to the presidency, potentially.
00:29:36.780
I can promise you we're not going to lay down on the PR war.
00:29:40.380
That's not something that that President Trump will do.
00:29:47.260
I would I would submit that the reason why that document is not in the indictment is because
00:29:53.900
maybe they know that it was a New Yorker piece.
00:29:57.180
Maybe they know that it wasn't the classified information.
00:30:00.300
And they're so furious that they didn't get this moment that they're going to fan the flames
00:30:10.220
They certainly aren't waiting to have this in the courtroom when the case is going forward.
00:30:17.340
Why is the prosecution not waiting to present this when it's their turn?
00:30:30.540
And we don't know for sure that it was DOJ that leaked it.
00:30:32.940
It could have been one of the other attendees at the meeting.
00:30:40.780
I would just say I've got a lot of proof of the swamp in Washington that I would I would
00:30:51.660
OK, because Trump has not been hurt in the polls.
00:30:53.660
We covered that yesterday in the wake of this indictment.
00:31:00.620
Peggy Noonan hasn't been exactly a fan of President Trump.
00:31:04.300
Had a piece on June 15th in The Wall Street Journal that reads in part as as follows.
00:31:15.820
I mean, the quiet Trump supporters, not big mouths and people making money on the game,
00:31:22.300
She thinks long term people are going to be bothered by what Trump did with those documents.
00:31:30.860
I think I would go so far as to say she likes me.
00:31:36.540
There's videos of her complimenting me publicly.
00:31:40.460
I'm an honest person and I would say that she's wrong.
00:31:45.340
I'm also somebody who lives outside of Washington, D.C.,
00:31:48.300
travels the country and talks to a lot of people.
00:31:53.180
I am 100 percent positive about this statement.
00:31:56.700
There is no question that people who fear Washington, D.C. and fear the radical left
00:32:03.660
are looking at the situation and saying they are overreaching again.
00:32:10.380
People who don't even like Trump are like, this is to me black and white.
00:32:15.820
We have to control the out of control Washington, D.C.
00:32:20.140
We see more people coming over saying this is now proof that they're radical.
00:32:27.580
They're just going after him with anything and everything.
00:32:32.620
I ask you ask the audience again to think about why are they just hellbent on going after Trump?
00:32:41.340
Why is that system in Washington, D.C. going after Trump?
00:32:48.140
There's a whole system surrounding Hollywood and production companies.
00:32:56.940
I think the same is in New York on the banking system.
00:33:00.140
Why is it that every Democrat senator is is falling over themselves for Wall Street
00:33:10.300
And I would I would say that the industry of Washington, D.C. is don't rock the boat.
00:33:23.260
But we will make sure anyone who tries to come here and change the changes the rules does not succeed.
00:33:32.300
But when we come back, we're going to talk about how some of the leftists out in California
00:33:36.140
are going after Rick as he got honored and his response was absolutely perfect.
00:33:44.140
So, Rick, before we get to what happened with you out in California, let's talk a little
00:33:51.980
2024 and just a follow up on the Hunter Biden situation.
00:33:57.020
Mick Mulvaney, who was Trump's chief of staff, right, for a short amount of time, comes out
00:34:01.500
and drops a hit piece on him at TheHill.com saying Donald Trump has a 2024 math problem
00:34:08.540
and talks about how he may be very good at subtraction, subtracting voters in various
00:34:14.460
states, but he's not very good at addition, adding them.
00:34:17.740
He goes on to say that Trump lost Arizona in 2020 because he didn't heed Mulvaney's advice
00:34:24.620
to stop ripping on McCain and he lost Arizona as a result, he suggests, by 10,000 votes in 2020.
00:34:31.980
He says in Georgia, he repeatedly said Stacey Abrams would make a better governor than the
00:34:41.820
And people don't forget that kind of thing, says Mulvaney, quoting an official he knows
00:34:48.700
And he points out that Trump lost Georgia by the now infamous 11,000 and change votes.
00:34:55.100
Florida could be next, he says, because Trump suggested that Andrew Cuomo in New York did a
00:34:59.900
better job than DeSantis in dealing with the covid pandemic.
00:35:04.140
And these are not ways to win Republican votes in any of these key states.
00:35:09.020
What's your what are your thoughts on Mulvaney and his piece?
00:35:12.860
You know, my friend, Mick, I disagree with him vehemently.
00:35:19.580
And I admit that it's spin, but I think it's pretty good basis for pretty good basis for somebody
00:35:28.940
But look, Mick is right that it was razor thin in Georgia, razor thin in Arizona,
00:35:33.420
razor thin in Nevada, and razor thin in a couple of Midwestern states.
00:35:39.820
I would say that the fact is in 2020, there wasn't a Green Party candidate pulling votes away from the
00:35:49.580
That alone right there would have made a huge difference, probably absolutely flipping.
00:35:57.180
But we haven't had in modern history an election where the two candidates are no longer about
00:36:06.220
promising what they would do to the economy and global affairs.
00:36:10.940
There's no more assumption from the voters to say, oh, I hope that they're right.
00:36:18.380
We are going to actually see a Biden world economy, world affairs and
00:36:25.980
U.S. economy and a Trump U.S. economy and world affairs.
00:36:30.300
We're going to be able to compare apples to apples, not promises to actual performance,
00:36:37.340
And I think that it's so razor thin in these states that you're going to tell me that there's
00:36:43.580
not 10,000 people in Arizona who wouldn't prefer no wars, no Ukraine war, no tens of thousands of
00:36:53.260
people dead, no conflict everywhere in the Balkans, in the Middle East, and high gas prices.
00:37:02.860
You think 10,000 people are going to stick to that vote? I think that there are plenty of people
00:37:09.260
who say, we're not voting for a priest, we're voting for somebody who's going to get our country
00:37:14.780
back on track. That's the first point. The second point is that the far left, the Democrats, the
00:37:20.460
radical wokeness, the lack of common sense is convincing even way more people. I think this race is already
00:37:26.700
over. The Republican is going to win. And that Republican clearly is going to be Donald Trump.
00:37:34.140
The media is doing its part to make sure that doesn't happen and to watch them run cover on
00:37:39.100
the Hunter Biden story is to see it very, very clearly if you hadn't already. The latest example
00:37:45.340
is how sorry everyone feels for a poor Hunter and his drug problem. And it was captured very well by
00:37:51.980
the Daily Wire's Tim Meads, who writes leftists to rediscover importance of fatherhood,
00:37:57.260
thanks to Joe and Hunter Biden's scandals, and goes through to talk about pieces like from the
00:38:03.260
Associated Press writing that that pride has been accompanied by pain, Joe Biden's pride in Hunter.
00:38:09.980
And for the president's family, both have been on public display. Republicans have worked to use
00:38:14.940
Hunter Biden's actions and his acknowledged struggle with addiction as an anchor to try to drag down his
00:38:20.620
father. They go on to say the most fatherly of things he could do, advise a son going through a
00:38:26.620
hard time isn't exactly available for a man whose administration commands the office that was
00:38:32.220
investigating his son and political rivals simultaneously. Single tear, Rick, single tear.
00:38:37.340
Joe was he was prohibited from being the shoulder for Hunter to cry on because he was president.
00:38:42.540
This is how it's getting spun. And any criticism of Hunter refuses to acknowledge what addiction is like
00:38:49.900
and you're a meanie if you call out Joe Biden for saying anything less than or for saying only that
00:38:56.940
he loves his son and is proud of him. Two quick points. One inherent in that whole relationship
00:39:02.860
between Joe Biden and Hunter Biden is an acknowledgement by Joe Biden that he has a child.
00:39:09.340
I think that should be step one when you acknowledge that you have children and you value them and then you
00:39:15.100
can help them grow up. Hunter Biden is no example. Joe Biden should be ashamed of himself that his
00:39:22.300
grandchild is not being recognized the same way that he's recognizing his child. That's the first point.
00:39:28.540
The second point is, is that I just with this for stripper who he denied paternity of and then she proved
00:39:34.860
it and now he's paying 20 grand a month to support the kid. But they won't let him the kid have Biden's name.
00:39:41.260
Biden won't acknowledge the granddaughter that Jill Biden won't. Nobody will acknowledge the granddaughter.
00:39:46.220
Go ahead. And Hunter doesn't want to pay the child support. So he's not going to even acknowledge
00:39:52.700
the responsibility of owing the money. So, look, if we're going to climb up on this high horse of moralism,
00:40:01.260
I think we should start there by recognizing a child that that deserves to be recognized. The second
00:40:07.420
point I would just say is, you know, the whole idea of the view and Twitter somehow determining swing
00:40:15.020
states, it just the media and the elites are at their lowest point ever. And it's getting worse.
00:40:23.020
Washington, D.C. types do not understand this, but people are dismissing them. They're just not
00:40:28.060
watching. They're not caring. People want long form information. They want both sides. They want to be
00:40:34.940
able to tolerate different opinions. We don't say that a dissenting opinion is disinformation and that
00:40:41.500
we, you know, have a corner on what fact is. There's always, you know, this adage of there's
00:40:49.180
three sides to every story, his side, her side and the truth. And so we need to be able to have a debate
00:40:57.420
and you need to be able to sit and listen to a dissenting viewpoint. And I think the left is proving
00:41:03.420
that they don't know how to do that. And they're losing the American people. First and second
00:41:07.100
generation Americans, Megan, are some of the most pro Trump people ever. This whole immigration thing
00:41:12.780
has been switched. And it's because they're the canaries in the coal mine. They've seen fascism.
00:41:17.580
They've seen totalitarianism. They don't want anything to do with it. They came to the United
00:41:21.580
States to get away from it. It's so true. I talked to so many people who are like anybody who got here
00:41:26.220
from Cuba or has ties. They can't believe what's happening in the country, but the media will be there to
00:41:30.780
lick the boots and provide cover. One of the reporters questioning President Biden last week
00:41:37.020
came up with this this soundbite in order to really press on the Hunter Biden issue.
00:41:41.100
You can't really hear it well, but we'll try. It's number eight.
00:41:55.660
The question was, how's Hunter feeling? And Joe Biden gives a thumbs up that way to nail it down. I mean,
00:42:02.220
honestly, like Edward R. Murrow would be proud. Mike Wallace is rolling over in his grave, Rick.
00:42:07.980
Speaker 3 It's really unbelievable that the other reporters allow this to happen and that there's
00:42:13.580
some sort of an editor sitting somewhere that says, yeah, good job. I don't understand that how
00:42:19.660
these people are able to like call themselves a journalist, but literally be an advocate for one
00:42:25.660
side. Well, this is what the Republicans are up against because they're obviously they've got a
00:42:29.820
thumb on the scale. OK, so we've got to talk to you about what's happening in California. This is
00:42:33.420
one of the most interesting things I've seen in recent history. What's happening with this bill?
00:42:38.940
And you kind of are directly involved in this thing. So as you point out, you're in Los Angeles.
00:42:44.700
You've been living in California a long, long time and it being Pride Month and you being the first
00:42:51.020
is it the first openly gay man to ever be a cabinet official? It's the first openly gay person.
00:42:58.460
And although they try to take that away from you and pretend you didn't exist and that it's
00:43:01.260
actually Pete Buttigieg. OK, but the Republicans in California did something nice. They tried to honor
00:43:07.260
you as you should be. And if you weren't a Republican, you'd be getting honored all the
00:43:11.820
time. But no, that's not the way it works. So the House Republicans in the state assembly,
00:43:17.660
I'm sorry, the House Democrats in the state assembly.
00:43:20.700
And the Senate Democrats and the Senate walked off the floor during these honors that were
00:43:28.140
being paid to you. Let's just start there and then I'll expand on who your detractors were
00:43:32.460
and why they're so controversial in a second. What did you make of that?
00:43:36.380
Look, you know, I'm not surprised. I mean, they're so lightweight. There are people who
00:43:43.180
really cannot have a discussion anymore. They run out of the room with their fingers in their ears.
00:43:49.420
They just can't take dissenting information. You know, I said at this press conference afterwards,
00:43:55.180
in 1993, Megan, I marched on Washington with gays and lesbians. And I remember holding a sign as I
00:44:02.300
walked with a whole bunch of people, million people in Washington demanding equal rights.
00:44:07.340
My sign was diversity and tolerance. We were the minority back then. And what we were asking the
00:44:13.980
majority to do was just listen to us. You don't have to accept us. Inherent in the word tolerance
00:44:20.620
is tolerate. It doesn't mean you like me, clap for me, approve of anything, but you tolerate me.
00:44:29.820
You don't try to cancel me. You don't try to walk out. My dad used to say, shut up and listen,
00:44:34.380
you might learn something. And so I just expect people to be different in this world and to have
00:44:40.540
different opinions. The gay left is not about that. If you are not for abortion and for open borders
00:44:47.820
and for the unions, you cannot get the endorsement of gay groups. And this is the fact, the Victory
00:44:56.540
Fund, GLAAD, HRC, all of them, they've lost touch because rank and file gays and lesbians, regular
00:45:03.980
gays and lesbians across this country, they've had it. There's at least four out of 10, or I would
00:45:10.940
almost argue five out of 10, gay and lesbian Americans who are voting for Republicans and
00:45:16.460
Trump. They just have had it with this left of not being able to sit and listen. Yeah, they've lost
00:45:23.580
their mission. To say mission creep is too generous because they've lost the original core mission
00:45:28.300
entirely. This guy, Scott Wiener, state senator out in California from San Francisco, comes out and says,
00:45:35.580
this is their way of celebrating pride by bringing in a guy who is truly a self hating gay man
00:45:42.140
who takes tons of anti LGBTQ positions. He is a particularly vile person. He too is a gay man. You
00:45:52.060
responded in part. It's an honor to be your enemy. That is so short and simple and perfect. I'm definitely
00:46:00.540
going to use that. It's perfect. But can you just give the audience a flavor in the time we have left
00:46:05.420
of why it's an honor to be the enemy of Scott Wiener? Well, look, this is a guy who represents
00:46:11.580
San Francisco in the most radical ideas. He hates parental rights. He thinks that if you're under 18,
00:46:17.580
you should be able to cut your breasts off, change your genitalia and do it without having your parents'
00:46:25.420
knowledge. And he somehow makes that and tries to tell gays and lesbians that if you are not for
00:46:32.140
that, then you're not a good gay or a lesbian. And to me, Megan, this issue is so simple. If you're
00:46:39.420
under the age of 18, we don't allow you to get a tattoo, go to an R movie, a smoke. Why would we
00:46:46.620
allow a kid to make this decision? I think it's child abuse. We should have laws in every single
00:46:52.380
state or a national law that says if you're under 18, no, this is not acceptable. My position is,
00:46:58.140
if you're over 18, knock yourself out. I'm not going to get involved with somebody else's life
00:47:02.540
as long as you're not hurting somebody else. But this guy is out there right now pushing
00:47:08.620
legislation that would criminalize parents who refuse to affirm their child's gender confusion.
00:47:15.980
Rick Grinnell has a knack. He's the one who came on and said, you can't vote for this.
00:47:19.420
And he wants abortion all the way through and tell you. He said they can't even tell
00:47:22.620
you what a woman is like. And now this it's an honor to be your enemy. You're you're very
00:47:26.620
good at the short, pithy comeback that is memorable. One of your many talents. We'll talk more about
00:47:32.380
Scott Wiener tomorrow when Carrie and Brit come back on the show. They live in California, too.
00:47:36.380
And our moms who are very concerned about what's happening there being told by other Republican
00:47:40.060
lawmakers flee flee. That's how bad it's gotten. Rick Grinnell, we've got a flee. Thank you for coming on.
00:47:45.980
All the best. Thank you. Always a pleasure. And we're coming back in one minute with Kelly's court
00:47:52.860
and an unbelievable update on, among other things, the Brian Kohlberger case out of Idaho. Prosecutors
00:48:01.340
Today, we have an excellent, excellent top notch panel for Kelly's court and lots of legal news to
00:48:11.260
get to, including the latest in the Brian Kohlberger murder trial out in Idaho. He has been accused of
00:48:16.300
killing four college students in November. Plus, Daniel Penny was arraigned this morning in connection
00:48:22.060
with the death of subway rider Jordan Neely after a grand jury indicted him earlier this month. A second
00:48:27.180
charge has been added. We'll get into what it is. Joining us now to discuss it all, bestselling author
00:48:32.460
and lead prosecutor in, among other cases, the people versus O.J. Simpson, Marsha Clark,
00:48:38.300
and famed trial attorney and principal of Garagos and Garagos, Mark Garagos. Love this panel. Welcome
00:48:44.460
back to the show. You're not only I love this panel. I was just telling your producer who was trying to
00:48:49.580
get me to shut up because I was talking to Marsha. I said, this is the only time I get to see her.
00:48:53.820
And it's so much fun for me. And welcome back, Megan. Thank you.
00:48:57.340
We're going to put a camera in the green room while you guys are waiting to come on air,
00:49:00.700
because those are some of the best conversations.
00:49:03.180
Yes. If you had heard, if you had heard, I was just telling her, and I know it's off topic,
00:49:08.140
but I'll tell you, I, you know, we're handling the Menendez case in the office. And I was complaining
00:49:13.980
that there's nobody I can talk to who has the institutional memory of what was happening in
00:49:20.220
real time except Marsha. And so I was like, I was spilling out stuff and she was in the middle
00:49:25.900
of all of that and in real time and knows all the players and everything else.
00:49:30.220
Oh, I mean, the Menendez thing is getting very interesting, but wait,
00:49:33.500
put a pin in that because that's up. That's up second. I want to kick it off with Kohlberger
00:49:38.380
because that case is just so compelling, fascinating, horrifying. And some significant
00:49:44.300
developments have gone down in the past couple of days. Number one, prosecution seeking the death
00:49:49.660
penalty. Is anyone surprised by this? Marsha, as the former prosecutor, I'll start with you on that.
00:49:54.860
Not really. And all of the, you know, you have to remember, and I guess one of the critics,
00:49:59.660
people who are critical of the death penalty are going to point this out as well. You're in Idaho.
00:50:04.540
Idaho has different mores and different standards in terms of what is death worthy than say California
00:50:09.980
does. Um, that said the horrific, uh, murder of four young people in this manner that clearly
00:50:16.780
appears to be premeditated, if true, you know, it's now alleged, but, but it proven, um, really
00:50:22.220
does show a very serious, the kind of offender where you would expect the death penalty to be on the
00:50:29.100
table for sure. And now they can, they have said in their letter, they can withdraw the intent because
00:50:34.380
at this time they don't have any evidence of mitigation, mitigation being the defense effort to show
00:50:38.940
why he's his life should be spared. Um, so it's early days yet, but if, if when a crime jumps off
00:50:45.740
the page at you like this, that is the kind of crime where you, if you have a death penalty,
00:50:50.380
you would imagine the case would be death eligible. So I can't say I'm surprised, but I do say,
00:50:56.460
let's wait and see if they hang on to this. I don't know that they will. Mark, does this raise
00:51:02.060
the challenge for prosecutors going in front of a jury? You know that some theorize it makes juries
00:51:08.460
more reluctant to convict if they know the death penalty may be on the table?
00:51:12.620
No, you know, I take the opposite view and I hearken back to a case I had, which was Scott
00:51:18.540
Peterson. I was complaining in real time that they were seeking the death penalty, not because they
00:51:23.740
wanted the death penalty, but because they wanted to get pro or, uh, I should say death penalty, uh,
00:51:31.260
eligible jurors. One of the reasons that Scott's death penalty was reversed unanimously by the
00:51:38.380
California Supreme Court was precisely because the judge was kicking off everybody on that jury who
00:51:45.340
didn't want to, or it was uncomfortable with imposing the death penalty. Most of the studies have
00:51:51.500
shown death penalty jurors are more pro prosecution. You combine that with the fact that that, and I don't
00:51:58.940
want to get ahead of ourselves, but, uh, with, with a circumstantial evidence case like this, you
00:52:04.220
want somebody, if you're a prosecutor who is going to be more pro prosecution, this is a perfect way to
00:52:11.180
weed out the people who would be more on the fence. Hmm. All right. So speaking of the evidence,
00:52:17.340
now we have learned that we knew before that the prosecution had used something called genetic
00:52:22.380
genealogy to figure out where did this DNA found on the knife sheath that had been left by the murderer
00:52:29.900
at the murder scene. Where did it come from? They were told that they had done a regular search in
00:52:34.780
the FBI's database. You know, does this match a perp who we have in the system? And it did not.
00:52:38.940
So they went to genetic genealogy where you can use public databases and in this case, private databases
00:52:44.300
as well of, uh, not, not private to you and me. Uh, but I'm in other words, a special database that
00:52:50.460
they went to figure out whether it has to figure out whether this DNA we have matches anybody whose
00:52:58.220
DNA is publicly available. And that's how they zeroed in on Kohlberger. It wasn't his, but they
00:53:02.700
said we can definitely link it to the dad who lives in the Poconos, someone related to that dad. And then
00:53:09.340
the circles got more concentric around the son, Brian, who was 10 miles away from the murder scene.
00:53:15.020
Um, Marsha, we now know that they retested the son himself, Brian Kohlberger. They took a cheek
00:53:22.300
swab and they are now saying it showed a direct match Brian Kohlberger's DNA on that knife sheath.
00:53:28.460
So we're going to get into how a lot of the other evidence is circumstantial. That's not circumstantial.
00:53:33.340
Well, it is actually, isn't it? People have this, this notion that circumstantial, um,
00:53:40.220
it means something much more removed, but circumstantial evidence is a fingerprint.
00:53:45.260
Circumstantial evidence is DNA. I used to tell the juries all the time, you know, I mean,
00:53:49.420
I would say, this is largely a circumstantial evidence case. And then they'd say, well, you're out.
00:53:53.100
Nevermind. I'm not interested. I said, well, how about the fact that there's a fingerprint
00:53:57.100
at the victims on the victim's shoulder? And oh, oh, well, but that's not circumstantial. Oh,
00:54:02.860
it is. It is. So is DNA. Same thing. The, the limitation of circumstantial evidence and with DNA,
00:54:09.980
for example, or a fingerprint is you can't tell when it was deposited. So for example,
00:54:14.940
you have this amazing result of DNA, one in a five octillion, uh, chance of that it is him as
00:54:21.980
opposed to a randomly selected person unrelated. So that, I mean, that's virtually, that is
00:54:26.940
a match, but you don't know when that DNA got on there and you don't know how that knife sheath got
00:54:32.140
on there. So it leaves room for the defense to say someone else dropped the knife sheath. Of course,
00:54:36.940
it was mine at one time. I had my fingerprints on it. I had my DNA on it from months ago. So in that
00:54:43.660
sense, it is circumstantial, but it is very damning. I mean, what is your knife sheath doing under the
00:54:48.620
body of one of the victims when you have no known natural or, um, unculpable reason for being
00:54:55.740
there? They didn't know each other. They didn't party together. So just the fact of the knife she
00:54:59.660
puts there. And then of course the DNA on it, you put it all together, but it's all circumstantial.
00:55:04.300
Well, let me ask you a question because that's interesting. If, if his bloody fingerprint were
00:55:09.660
found at the scene, or if DNA from the victims were found in his car, would that also be circumstantial?
00:55:17.260
Yes. Same thing. You can't say when it got put there. No one saw it get put there. Direct evidence
00:55:24.060
is me seeing, if you go and shoot somebody and I watch you do it, that is direct evidence. But, um,
00:55:29.980
of course I would argue that whoever you shot deserved it. So that's a whole other issue.
00:55:33.900
But if I don't see it, you know, if you're coming up with, um, evidence that is deposited at some point
00:55:39.500
in time that is not observed by anyone, even a bloody fingerprint, though, of course,
00:55:43.180
a bloody fingerprint gets a lot closer to something you could call like direct evidence,
00:55:48.300
it's still circumstantial. That's interesting. I didn't, I didn't know that. I never practiced
00:55:52.540
criminal law. So that's, that's interesting to me. You know, to follow up, to follow up on that,
00:55:57.100
the, it's interesting because with the Innocence Project, most of the evidence against people who
00:56:04.140
were condemned and sent to death row was, uh, as a result of direct evidence, and they were exculpated
00:56:12.140
by the circumstantial evidence of DNA, which is one of the, that's one of the things I talked to
00:56:18.620
jurors about in Vore Dyer to point out the differences of what we always think. It turns
00:56:24.380
out that many of the studies show that direct evidence, eyewitness identification is much more
00:56:30.140
fallible than circumstantial evidence. Well, the genetic genealogy link that started it off before
00:56:36.460
they got the actual cheek swab from the defendant and they were looking more at what, who in the
00:56:41.340
universe could this DNA on this knife sheath belong to is becoming an issue in the case, Mark. Um,
00:56:47.260
the defense lawyer is asking the court to compel prosecutors to turn over additional discovery
00:56:52.860
materials and info on the genetic genealogy techniques investigators used before labeling
00:56:59.580
Kohlberger their suspect. They're also asking for information on why the FBI expanded the range of
00:57:07.820
model years on a white Hyundai Elantra. They were looking for in connection with the case. Now those
00:57:13.340
two items that they want discovery on might have nothing to do with each other, but they might have
00:57:17.980
something to do with one another in that initially the police said they were looking for a Hyundai Elantra of
00:57:23.260
certain years that would not have included Brian Kohlberger's. And then they expanded the years, uh,
00:57:28.300
to a year. His was 2015 that would have been included. And there's been some questions raised
00:57:33.740
about whether that expansion happened after they got the hit on Kohlberger's dad and started to zero.
00:57:40.060
So what, what, what's the defense attorney doing here? What's he trying to set up?
00:57:44.540
This is a brilliant strategy by the defense. And I'll tell you why you've hit exactly on what they
00:57:50.220
think they're creating a timeline to show that the expansion of the Elantra after the FBI had given
00:57:56.940
an opinion that it would have excluded Kohlberger. And then he re you, we talked about this. They then
00:58:03.900
went back to them once they had Kohlberger and they expanded the number of years to include his car.
00:58:09.980
But this is also a very subtle kind of a gray male, because that is a technique in classified documents
00:58:18.300
cases where you say, okay, we're going to go forward. I'm not going to get a classification.
00:58:25.260
You've got to show me the classified documents publicly. And then the prosecutor backs down.
00:58:30.940
We know that the FBI and investigative agencies do not want to reveal how they use or how they get to
00:58:39.900
this genetic testing that then takes them to one of the relatives. So they're saying on one hand,
00:58:46.540
show us that hoping that they say, we're not going to do that. If they turn out and they say, okay,
00:58:51.500
we're going to turn that process, that investigative technique over. But it's under a protective order.
00:58:57.740
That's fine. Because then what you're going to do is the defense. You're going to take the two
00:59:02.220
unidentified males that are at the, that were found at the scene, the DNA, and you're going to use the
00:59:09.420
same testing protocol and see who you come up with in the databases based on their very own protocol.
00:59:17.180
And God forbid that you hit somebody who is a potential other suspect, because then you're
00:59:22.540
going to ask all kinds of questions about why their DNA was there or that universe of alternative
00:59:31.100
Oh, so interesting, Martha. Yeah, because they are, Marcia, because they're saying the defense
00:59:35.500
attorney is saying exactly that, that there's other DNA from other random people, not inside the
00:59:42.620
crime scene, but around or outside the house that they're suggesting the prosecution didn't look into.
00:59:48.940
And I suppose there's an argument that if somehow the genetic genealogy was wrong, flawed,
00:59:56.060
improper, everything that stemmed from it was improper, which could include the expanded
01:00:03.020
years on the Hyundai, which suddenly came about. Right. So it's he's trying to set up a chain that
01:00:07.260
would knock down most of this evidence we've been discussing. Yeah, we'll probably fail. I mean,
01:00:12.860
it's a good idea. I think it's their best idea. I think Mark is right. It's a good strategy.
01:00:17.100
Does it work? Well, no, because they have the direct DNA from the suspect that is a complete match
01:00:22.940
five octillion in one to one. So, I mean, they actually have the guy and that's inside the house.
01:00:29.020
Remember, this is kind of a group house. A lot of people came and went. And the fact that you have
01:00:34.300
some, some peripheral DNA from other males around the exterior of the house or in other rooms that are
01:00:42.540
not where everyone was sleeping and killed is, I think, ultimately going to be washed out as, okay,
01:00:48.540
so what? It's not like it was some private person who lived alone with no relatives and no visitors.
01:00:54.060
A lot of people came and went. The Elantra, the story with the car is that they had a kind of
01:00:59.180
identification that indicated various details regarding the car. When they decide, when they
01:01:06.860
see that that doesn't include Cole Burger, and I think this is where actually the defense might have
01:01:11.100
a better claim in terms of trying to say, oh, they zeroed in on Cole Burger to the exclusion of
01:01:17.180
everybody else and therefore ignored all the evidence that would have proven a third party was
01:01:20.860
guilty. But what they're really doing is saying, look, if it didn't include, if that car did not
01:01:26.540
include the one belonging to Cole Burger, who else could it have belonged to? It's actually good police
01:01:31.180
work and they're going to have to turn it all over eventually anyway. I mean, under protective order
01:01:35.900
is fine too. But I really don't think that the genealogy testing they early did is going to hurt
01:01:41.340
anything because after all, the suspect, the ultimate suspect's DNA was not in the system.
01:01:47.020
It's called CODIS, the combined index for DNA profiles that they use nationwide. If you have
01:01:54.620
not been arrested, if you have not been fingerprinted for some reason because of your job,
01:01:58.620
et cetera, et cetera, your fingerprints will not be there. Mine would be there. Mark's would be there.
01:02:02.780
But somebody who has not been involved in the system or has not been arrested will not be there.
01:02:07.820
So you have to find other means to try and narrow the scope of your search, which is what they did.
01:02:13.180
But that all becomes pretty irrelevant when you actually match the person with a DNA swab from
01:02:18.540
his cheek. Yeah, exactly. And it's even if that there was something odd or unusual about the genetic
01:02:25.820
genealogy, there's nothing illegal about it such that it would not be admitted or everything that
01:02:32.060
stemmed from it would be kept out as fruit of the poisonous tree, Mark. Like, I don't,
01:02:35.500
I don't understand why this is going to help them. I harken back again to about 22 years ago.
01:02:42.540
In California, for instance, mitochondrial DNA was not admissible. And under the standards here,
01:02:51.420
at least, you had to have a hearing. It had to then go to the Court of Appeal before it could become
01:02:57.820
admissible. I do not believe that in Idaho it is an admissible technique yet. So there is going to be
01:03:04.860
an attack. Marsha is probably right. I mean, generally, these things end up going the prosecution's
01:03:10.780
way. But they in a, especially in a case that is death penalty eligible, if you are not challenging
01:03:18.380
that right now at the beginning, you're setting up an IAC claim.
01:03:24.780
Absolutely true. They have to go after it. They do, whether they win or lose a different story.
01:03:30.860
And if Idaho, as Mark suggests, doesn't allow in that kind of evidence, then there is some argument
01:03:37.660
to be made and they better make it for sure. Very important that they lay that foundation and make
01:03:42.300
that claim, make every claim in a case like this. Howard Bloom, who's an award-winning reporter who's
01:03:48.300
been doing really interesting pieces on this for Airmail, the new Graydon Carter subscription publication.
01:03:53.820
He had a piece just this May. He's been doing sort of part one, part two, and he just writes so
01:03:58.540
beautifully. We had him on the show one time. It was fascinating. Couldn't peel your ears and eyes
01:04:02.620
away. This is what he said about them expanding the years of the Hyundai they were searching for,
01:04:09.100
right? Because originally they said they were looking for 2011 through 2013 and Kohlberger's car
01:04:13.180
was 2015. This is how he explains it. The FBI forensic examiner first deduced that suspect vehicle one
01:04:20.860
was a 2011 to 13 Hyundai Elantra. This is from looking at the videos on scene around the house.
01:04:26.300
This is this guy's looking at, hey, what cars are around the murder scene? Hey, there's this white
01:04:30.380
Hyundai. Maybe we're interested in that. He guesses it's between a 2011 and 2013 Hyundai Elantra.
01:04:36.780
Then upon further review, to use the chagrined phrase of the candid Idaho authorities,
01:04:43.340
he decided the mysterious Hyundai might very well be a 2011 through 2016 vehicle. And when he poured
01:04:50.940
over the image of a car consistent with the Hyundai near the murder scene that was caught on camera not
01:04:57.020
long after the killings racing toward Pullman, Washington, he deduced that it was a 2014 to 2016
01:05:04.460
Hyundai. That is, he cast a pretty broad net and he cast it three times to boot.
01:05:11.900
So this seems to be laying out an investigator, the defense will argue, Mark, who is trying to
01:05:19.260
color the evidence to fit the evolving crime scene and facts around it.
01:05:25.660
I would be arguing and screaming, this guy is reverse engineering his so-called expertise
01:05:31.420
to fit the suspect as opposed to the facts. And that I, I think we discussed this early on when
01:05:38.300
the, when the, when the affidavit was real revealed, I said, they, this is one of the reasons I said,
01:05:43.660
there are holes that the defense is going to drive a truck through in this case. And it doesn't,
01:05:49.820
it hasn't at least what has been leaked so far. This case has not gotten better for the prosecution
01:06:00.940
Hmm. He says, Marsha, uh, the defense attorney is writing in one of his motions to the court.
01:06:06.460
Number one, there's no connection between Brian Kohlberg and I and the Idaho students.
01:06:10.700
So that's interesting saying it on the record that there's no connection between them.
01:06:13.660
And that would seem to undermine some unconfirmed reports. We've gotten single source reports.
01:06:18.460
We've seen in various publications that maybe he was stalking them on social media,
01:06:22.940
et cetera. I think the defense attorney wouldn't say that if that evidence were about to come out,
01:06:27.740
could be wrong. But then he writes, quote, there is no explanation for the total lack of DNA evidence
01:06:34.300
from the victims in Mr. Kohlberger's apartment, office, home, or vehicle. That's the first time I've seen that
01:06:43.180
too. Somebody stating affirmatively that all those searches did not produce
01:06:47.900
any DNA evidence from the victims anywhere around Kohlberger's living or working quarters.
01:06:55.660
Yeah. My, my response as a prosecutor, so what, so what, why do you expect to see
01:07:00.460
him carrying stuff from the victims? He's got so much time in between leaving the crime scene
01:07:05.660
and going into his house so much time to destroy whatever he might've thought might carry something
01:07:11.500
in, destroy the clothes, destroy, take a shower. I mean, wash yourself off. The police didn't get
01:07:16.460
to him right away. It's not as though the police were hot on the trail and busted him the minute
01:07:20.460
he walked in the door. There was quite a time gap. And so the fact that there isn't from stuff from him
01:07:27.580
to the victim, from the victims to his house is much less surprising than finding something that does
01:07:33.500
come from him in their house. And the fact that the defense is admitting there is no con,
01:07:37.980
there's no particular known contact between them doesn't play as well for the defense as I think
01:07:43.820
they want it to. The fact that you have single source information, especially in a widely known
01:07:49.420
case like this indicating, oh, he was stalking them on social media and whatnot. There's going to be a
01:07:54.220
lot of that kind of what I call peripheral stuff floating around in the ecosphere. But I do not think
01:08:01.180
it necessarily means there was any known contact. That doesn't mean he wasn't stalking them. That doesn't
01:08:06.460
mean he didn't have his eye on them. Certainly, you know, his knife sheep is there under someone's
01:08:11.500
body, where someone's body was laying. So I mean, that's a very powerful piece of evidence. That said,
01:08:17.580
as Mark pointed out, it doesn't appear, at least from what we know, things have gotten any better.
01:08:22.220
And that to me, I'm not sure what to make of that, except that they are playing this very close to the
01:08:27.180
best. They're doing a lot of projective orders. They're being very careful about the release. I
01:08:31.580
understand why. It's tough when you have a case that is this high publicity and high profile,
01:08:37.340
it can get out of control very quickly. So they have to reveal it to the defense at some point.
01:08:42.940
But that said, the fact that they don't find evidence of the victims in the defendant's house
01:08:47.740
under these circumstances is much less compelling to me.
01:08:50.780
Dr. You know, what's interesting is this is this I mean, it's just now dawning on me that this guy
01:08:55.740
actually might get off. Well, let me just tell you, I hate to be a legal nerd, but on building
01:09:01.660
on our circumstantial evidence discussion, you get a jury instruction in almost every jurisdiction
01:09:08.460
that says if it's circumstantial evidence and you have two reasonable interpretations,
01:09:12.940
one that points towards guilt, one that points towards innocence, they don't have to be the same
01:09:17.340
of the same level. But if you have one reasonable explanation that points towards innocent,
01:09:22.860
you must acquit the defendant. Now, what do we have here? We have them saying the lack of evidence
01:09:30.620
or no evidence about cell phone triangulation or cell phone towers. So we have no evidence there.
01:09:37.420
The lack of evidence, with the exception, and I agree with Marcia, they've got to deal with the one
01:09:42.460
touch or what I call the one touch DNA, the touch on the sheath. But they don't have any DNA. And I've had
01:09:50.780
countless murder cases where they pulled the DNA from the victim from the inside of somebody's truck,
01:09:56.860
the inside of somebody's car, on the bed frame of a mattress that they found someplace else. But
01:10:02.140
they don't have that as well. So if you have that and you have no other connection to these people,
01:10:08.460
and if the defense can just suggest, based on the two unexplained male DNAs that they found,
01:10:16.700
and ironically, one piece from a glove that was found outside of the location, there is a substantial,
01:10:26.540
reasonable doubt, at least based on the evidence we know about. And I say that because I agree with
01:10:33.420
you, Megan, we don't know what's under seal, what they're keeping close to their vest. But there is a
01:10:40.060
reasonable doubt argument here that could carry the day. Well, there is one here. I mean,
01:10:46.780
as we've all acknowledged, it's early days. Wait, wait, I'll give you the floor. But
01:10:51.500
if there's no bloody DNA from the victims in his car, how, I mean, like,
01:10:57.500
is it possible this guy almost did commit the perfect crime? He comes out of murdering four
01:11:02.380
people in the span of 18 minutes and gets in this white Hyundai Elantra, this is the prosecution's theory,
01:11:08.380
and not a single blood drop of the victims is found anywhere? I mean, I know, I'm talking to
01:11:16.780
Marsha Clark. You know, you know how tough it is to not have a trail of blood follow a murderer
01:11:23.180
in a double murder, never mind a quadruple. It depends on all how it's done. It depends on
01:11:28.940
so many factors that it would take us way too long. But you have to remember something standing
01:11:33.820
behind somebody and stabbing them does not create a lot of blood spray on you, necessarily. It depends
01:11:39.180
on where you're stabbing the person, where you're standing when you're stabbing them, what you're
01:11:42.380
wearing. I don't think anybody had a chance in this case, and I really wish we had more evidence, but
01:11:49.980
unless there's a pool of blood for him to step through, unless there is blood on a surface that
01:11:55.020
he's likely to touch and carry with him, you're not going to find it. I mean, 18 minutes is a long
01:12:00.700
time. And depending on what he's wearing and what he's able to shed of what he's wearing on the way
01:12:05.420
out and on the way home, no, you're not going to find anything. Comparing it to the Simpson case,
01:12:11.100
it was a mess. I mean, there was pooling blood everywhere that he walked through that splashed on
01:12:16.540
him because there was a big fight. There was no fight here. There was no struggle shown here. So you
01:12:21.660
have a very different set of circumstances. And when that happens, especially depending on whether he's
01:12:27.180
standing behind them and where he's stabbing them, he's not going to come away with a whole lot of
01:12:31.900
transfer from the victims, takes off his clothes, takes off whatever outer clothing, dumps it
01:12:36.540
somewhere, burns it, buries it, whatever. No, you're not going to find it. So, you know, and of course,
01:12:41.580
there was a time gap between when the murders occurred and when the police got to his house or his car.
01:12:47.100
So there's a lot of, there was a lot of time and many, many circumstances in between that could
01:12:52.540
prevent anybody from finding anything from the victims. So until we know more, it's really hard
01:12:57.980
to say that this is a doom for the prosecution. They let him clean his car. You know, as the FBI
01:13:04.380
was following him back in the Poconos, we know that they watched him take his car and have it cleaned
01:13:09.980
and detailed and didn't step in to stop it because I think they were still pursuing the DNA and all that
01:13:14.700
other things that they wanted to get the arrest warrant. So who knows whether they managed to get
01:13:19.260
something from the trash? I would just say this, Megan. Yeah, go ahead.
01:13:21.580
Back to my circumstantial evidence. You could take as the prosecution,
01:13:25.740
did he commit the perfect crime? As the defense is going to say, or is it reasonable they've got
01:13:31.260
the wrong guy? No, they don't. I don't. I, I, yeah, by the way, your honor, we thank and excuse
01:13:39.260
Megan Kelly from this jury. Good call. I'm definitely much more prosecution oriented. All right,
01:13:46.700
let me squeeze in a quick break here because I don't want to break up our Menendez discussion.
01:13:50.460
Quick break and we'll come back with Menendez, which March Mark is handling. And these two brothers
01:13:54.780
could potentially get a new trial. Unbelievable. Standby.
01:14:00.940
So, Mark, this is crazy. The Menendez brothers who were accused of that we know that they killed
01:14:07.260
their parents, but their defense was that they had been abused by the father repeatedly over the
01:14:13.020
years that the mother had allowed it. And Leslie Abramson so famously got up and, you know,
01:14:18.860
did the direct exam of of Eric Menendez, the younger brother. He cried on the stand. They had
01:14:23.980
him in like the sweater vest. The jury didn't buy it and wound up convicting both of these guys.
01:14:30.140
I've spoken to why I spoke to Lyle Menendez in a courthouse or a jailhouse interview when I was at NBC.
01:14:35.020
It was fascinating stuff. But now there's new evidence in the case. You're representing them.
01:14:43.260
And it's actually not just Mark Garrago's defense attorney saying reopen the trial. I have another
01:14:48.220
trial, which defense attorneys do all the time. With all due respect, the judge himself as is looking
01:14:53.660
at the prosecution saying you need to explain yourselves as to the job you did and why some
01:14:59.500
of this stuff was not brought out in connection with this trial. So explain what are what are the
01:15:04.380
two best things that have you arguing for a new trial here? First, the best thing about being on
01:15:10.940
your show today is being able to talk to Marsha in the green room because she has the institutional
01:15:16.940
knowledge of what was happening in the DA's office at the time, because the basically what we have
01:15:24.060
argued is trial trials, number one, because there were two juries the first time around. Both of those
01:15:31.900
juries hung on whether it was murder or manslaughter. That was based on imperfect self-defense. Fast forward
01:15:40.540
to trial number technically three, but the second wave or jury number three. What happened in the interim?
01:15:48.380
Marsha remembers there was the OJ Simpson case in between the same trial judge in both cases,
01:15:57.020
not in the OJ Simpson, but in the Menendez cases, same trial judge basically invited the late great
01:16:04.460
David Kahn to rethink imperfect self-defense. David, to his credit, did not take the bait at least
01:16:12.700
initially. Can you just explain what that is, Mark? Explain what imperfect self-defense is.
01:16:18.220
Imperfect self-defense is basically where the law says what you did may not have been objectively
01:16:25.500
reasonable, but we basically understand why you do it. We're going to let that be mitigation.
01:16:30.460
We're going to have it negate the malice element, which is required for murder.
01:16:35.820
So you didn't murder your father in the midst of him allegedly molesting you,
01:16:40.700
but you did it understanding that you were afraid of him and the next
01:16:45.180
punishment could be coming your way, that kind of thing.
01:16:47.900
Correct. And all you're doing is negating the element of malice. You're not saying I'm not guilty.
01:16:55.420
You're saying if I am, I'm admitting guilt, but guilt of manslaughter. So what happens? They do the
01:17:02.540
trial. The judge starts excluding evidence that they did not or that he did not exclude in the
01:17:09.420
first trial. And then after they rest, he allows them to withdraw or he withdraws the imperfect
01:17:17.100
self-defense. By that time, the prosecutor had gotten the message. And then David, who was the
01:17:23.980
prosecutor, argues in closing that it was an abuse excuse. These were entitled kids. There was no
01:17:31.020
evidence of the abuse, which is astonishing because when you argue that and you know you got the
01:17:37.500
evidence excluded, it's really the height of chutzpah. Now, fast forward to now, we then get
01:17:44.140
the Peacock documentary. We get the declaration of the other young man who was then. Wait, stop.
01:17:51.500
Let me stop you there because the audience doesn't know about this yet. So a member of the boy band,
01:17:57.340
Menudo comes out in this documentary about his band, I guess, and says he, too, was molested
01:18:07.020
by Eric and Lyle's father, Jose Menendez, who the boys were saying during the trial was a molester
01:18:14.380
who was the president of the record company for Menudo. OK, wait. And let me just add one other
01:18:19.980
thing. We have a soundbite of this. The accuser's name is Roy Rossello again of Menudo. And this is just
01:18:25.420
a quick soundbite of him in the piece. That's the man here that raped me. This guy, that's the
01:18:34.380
pedophile. How old were you there? 14 years old. He's pointing to Jose Menendez, this RCA executive,
01:18:43.340
and he said that the band's founder brought him to the Menendez home in New Jersey to broker a deal
01:18:51.980
between the band and RCA. That's when Jose Menendez allegedly drugged him and raped the then
01:18:57.740
teenager twice. I won't get into the details, but he was only 13 or 14 when he says it twice,
01:19:05.340
I guess a total of three times he molested and raped him. Go ahead, Mark. OK, now you now have also,
01:19:12.540
in addition to that, you have Kitty's sister, Marta, whose son has passed away, Kano.
01:19:22.300
She's going through his things a number of years ago. In those things, she finds a letter
01:19:28.380
that predates the murder by, I want to, or the killing, because it's not a murder.
01:19:33.340
Yeah. And by about eight months. And in the letter, he's describing to his cousin, Marta's son,
01:19:41.340
the fact that this is going on. Eric Menendez is telling his cousin he's being molested by his
01:19:47.980
father months in advance of the killings. Right. And she finds it. She then gives it,
01:19:55.420
I believe, to ABC. We're still working through the Providence. But that letter combined with the
01:20:01.900
declaration now that he was also doing the same thing to a third party has now caused the judge in
01:20:09.660
the in the reaction to, if you will, or the aftermath of the writ of habeas corpus to issue
01:20:17.660
an order asking the prosecution to respond. Interestingly, I was also telling this to
01:20:23.420
Marsha in the green room there in talking with the Kitty's sisters. There was a rule that was known
01:20:30.220
in the family that if Jose, the father, was in the room with Eric, that nobody was allowed to
01:20:39.260
go down the hallway, which to me is one of the creepiest things I've ever heard. But that was
01:20:45.020
known. And so. All right. So wait, so let me jump in. So the alleged letter, Eric's letter,
01:20:51.900
writes as follows. This is again, his mother's sister had a son who would have been Eric's cousin
01:20:57.100
to whom Eric wrote this letter eight months before the killings. And Eric writes,
01:21:01.260
I've been trying to avoid dad. It's still happening, Andy, but it's worse for me now.
01:21:05.980
I can't explain it. He's so overweight that I can't stand to see him. I never know when it's
01:21:10.380
going to happen. It's driving me crazy. Every night I stay up thinking he might come in.
01:21:14.060
I need to put it out of my mind. I know what you said before, but I'm afraid you just don't know
01:21:18.700
dad like I do. He's crazy. He's warned me 100 times about telling anyone, especially Lyle.
01:21:23.900
Am I a serious wimpus? He continues. I don't know. I'll make it through this. I can't handle it,
01:21:29.900
Andy. I need to stop thinking about it. So and then the cousin's name was Andy Kano.
01:21:36.220
So Marsha, now the judge, he's they've gotten the judge's attention. The judge,
01:21:43.020
Superior Court Judge William Ryan, demanding answers from L.A. County District Attorney George
01:21:47.180
Gascon about the explosive evidence that was kept from a jury, quoting here from Los Angeles Magazine,
01:21:54.140
Judge issued an order on June 24th requesting Gascon, whose office prosecuted the Menendez
01:21:58.860
brothers in two different trials to explain whether his lawyers exercised due diligence
01:22:02.780
in pursuing evidence that the father Jose was, in fact, abusive. The judge points to this letter
01:22:08.140
I just read from and wants Gascon to explain how diligently his office dug into claims of abuse
01:22:15.660
or Jose Menendez behavior at the time. This is so interesting. So what is that extraordinary
01:22:21.980
for the judge to do that? And what do you make of the D.A.'s conduct in all of this?
01:22:26.380
So I knew the prosecutors for both trials and I was aware of the prosecution, the case,
01:22:32.220
the trials going on at the time. I have to say I want to make it very clear that what the defense
01:22:39.100
is saying and what the judge is saying is not that the prosecution knew about this evidence and hid it
01:22:44.220
from them, which is important. It's that, well, did you try hard enough to find it? Based on what I've
01:22:50.700
seen, they tried very hard to find it. They spoke to everyone. I know that in the first trial they
01:22:56.220
interviewed all kinds of members of family. In fact, there was a whole motion based on teachers,
01:23:03.180
friends, family and coaches that had something to say about Kitty and Jose Menendez and the family
01:23:09.740
dynamics. And then, as I understood it, David Kahn, who retried the case, did the same thing,
01:23:15.900
went out and talked to all of them and then prepared a motion saying there is no valid basis
01:23:21.900
for this. These are not credible accusations and explained why. I did not see these motions. So I
01:23:27.980
want to make it clear I'm basing this on what I heard and discussed with them at the time. So it's
01:23:33.820
not that they weren't trying to find this information. They certainly did. I know that. Why they didn't
01:23:38.860
is going to be the subject of the discussion now and why the judge has issued what you asked for
01:23:44.620
an informal reply from the prosecution as to why they didn't uncover it. I'd like to know that, too,
01:23:51.260
because given what I know about the efforts that the DA has made in both trials, I'm very surprised
01:23:56.860
this letter didn't come out. What took so long? Where was it? And why does it only come out now?
01:24:01.660
And what about the Menudo witness? I mean, does the judge, I'm only reading an excerpt here of the
01:24:10.300
Los Angeles Magazine piece, but is the judge interested in that, too? Mark, I mean, can that
01:24:15.340
actually get a case reopened when you have, you know, a third party come forward and say he did
01:24:20.140
it to me, too, when the whole defense was based on my dad's a molester and that's what led me to do
01:24:24.460
this horrible thing? Yes, I think that's precise. I think when you have the combination, to my mind,
01:24:30.140
a third party coming forward at this point, and given what we know about the trauma and the
01:24:38.140
repression and everything else that these kinds of things cause on victims, I think that that's,
01:24:45.740
to my mind, an extremely compelling piece of evidence. The one thing I will, building on what
01:24:51.980
Marsha was talking about, you know, the politics of the DA's office was very interesting at the time
01:24:59.900
of what was happening. There are those like me who are very cynical that say one of the reasons that
01:25:05.500
David Kahn was assigned to the second trial is because David Kahn coming on the heels of the OJ loss was
01:25:14.380
probably the biggest threat to the then current DA in the next election. And this was a way to take
01:25:21.820
him off the chessboard, so to speak. And why were they doing that in the machinations? There's just a
01:25:27.820
whole lot going on in terms of why all of this happened. And I always go back to there was a,
01:25:36.220
I listened to the audio, the Ninth Circuit heard this appeal 20 years ago. And then one of the then
01:25:44.140
judges on the Ninth Circuit, in questioning the Attorney General, has a very telling line. He says,
01:25:51.340
isn't this unfair that trial number one, you had a certain set of rules, trial number two,
01:25:57.660
you change the rules midstream in order to get the result you want. And I always invoke this other
01:26:03.980
quote, I wish I had come up with it. If these had been the Menendez sisters, they would not be in
01:26:11.660
Can I add one more thing, Megan? I think it's important to focus, legally speaking, on another
01:26:17.820
aspect of the crime. And that is imminence. When it comes to the claim of imperfect self-defense,
01:26:24.940
what they're saying is, self-defense itself, the regular self-defense that we all know,
01:26:30.700
is that you shoot at someone, you kill them because you legitimately, reasonably believe
01:26:36.380
that your life was in imminent danger. You are in imminent danger of death or great bodily injury.
01:26:43.260
The imminence factor is still required for imperfect self-defense. So even though you unreasonably
01:26:49.500
believed that your life was in danger, you nevertheless must prove you genuinely believed at that moment that
01:26:56.380
your life was in imminent danger. And that is one of the problems for the defense as well. Now,
01:27:02.060
this is not to say that, and I'm completely taking apart the issue of whether or not they were molested,
01:27:08.620
taking that to one side. They still have to prove that in the moment they shot, both their mother and
01:27:14.700
father shotgunned them to death, they believed in that moment that their lives were in imminent danger.
01:27:20.620
And that's going to still be something to prove. Certainly,
01:27:23.500
the molestation is going to come into play here. And there's going to be PTSD aspects and
01:27:29.020
issues to deal with in terms of how that affected their state of mind. But that is nevertheless an
01:27:35.180
important aspect. As a juror will probably think, if they do go back to trial on this, which may not
01:27:41.820
happen, it may get resolved in another way that Mark and I were talking about. But if it does,
01:27:47.420
a juror is going to say, why don't you just leave? You're both adults at this point. Walk out the door.
01:27:54.780
It's so ironic, Marsha, because back then in the 90s, I vividly remember trying a case right around
01:28:02.300
the same time out in Pomona, a murder case with a woman and using one of the first experts for
01:28:10.860
I was just going to say battered women's syndrome.
01:28:15.020
We ended up having the same thing. It was a hung jury between murder and manslaughter and she ended
01:28:20.540
up getting a manslaughter probationary sentence at the end of the day. This is not dissimilar in
01:28:28.540
terms of where we've come. Because back then in the 90s, we understood it in the battered woman's
01:28:35.340
case context. I think now we've the prism has changed. So most people understand it in this
01:28:42.220
context. OK, but here's my here's my question. So you're seeking a new trial. A, how do you like
01:28:48.940
your odds, honestly? And B, if you don't get it, is there an option to go? I'm not advocating for
01:28:55.820
this necessarily, but I'm just curious. Could you go to Gavin Newsom, the governor of California,
01:29:00.220
and say they've served 30 years? It's time to commute their sentences. Look at the overwhelming
01:29:05.420
evidence we have, the Minuto guy and so on. Look, I I'm cautiously optimistic.
01:29:13.900
Could that happen? Could there be a third rail, so to speak? I think there could be
01:29:18.860
that Marcia kind of hinted at that we were talking about. There's a whole realm of options here. But
01:29:24.700
clearly, to my mind, they've done 33 actual years. By all accounts, they've been model prisoners.
01:29:32.220
Eric has a mitigation packet that I have never seen before in 40 years of somebody doing the kind of
01:29:40.060
great work in the prison. And frankly, I think he had resolved himself over 10 years ago that this was
01:29:47.180
going to be where he spends the rest of his life. And given even with that resolution, it didn't mean
01:29:52.940
that he went off a tangent and became incorrigible. He just doubled down on his efforts to help others
01:29:59.740
in there. So I think there's a compelling case to be made, whether, you know, I don't know that
01:30:04.940
Gavin Newsom would be my pathway, but there are other options that can be utilized. But we're focused
01:30:12.140
like a laser right now on the habeas. I'll give you the last word on it, Marcia. What do you think
01:30:16.700
is going to happen here? I think that's a really good question, Megan. I had questions about the,
01:30:22.220
I didn't get to see the video, excuse me, of the victim who was talking about his attack by Jose
01:30:30.460
Menendez. I did read, however, that he had been drugged. And so I wound up wondering whether he
01:30:36.060
was sure it was Jose who attacked him. Someone attacked him, there's no question. And that may
01:30:42.300
come into play. I don't know. But if there's, first of all, when you file a habeas petition,
01:30:48.380
and there is a question of credibility, the judge almost has to ask for an informal reply
01:30:53.580
to find out what's going on here, because you can't just dismiss a credibility issue
01:30:58.620
out of hand. That said, there is some, there's some meat on the bones here, as they say. And I think that
01:31:05.340
it's hard to know how this all shakes out. But I think when they answer the question as to
01:31:10.540
where this statement came from, why it wasn't discovered before, the legitimacy of it,
01:31:15.420
as well as the other victim from the Menudo ban, it may very well wind up with a new trial.
01:31:21.580
Wow. Oh my gosh, that would be something. We'd all be glued and we'd have Garagos again
01:31:26.940
in front of the jury on one of the biggest trials in the nation. I would buy a ticket to that. All
01:31:33.100
right. Let's finish quickly with Daniel Penny, the man charged now with taking the life of Jordan
01:31:39.900
Neely, who had gotten onto a subway train and threatened the passengers. Daniel Penny was now,
01:31:46.140
he pleaded not guilty this morning to now two charges. We expected him to be charged with
01:31:51.500
second degree manslaughter. He was, they've added the charge of criminally negligent homicide. He says
01:31:58.060
he's not guilty. He could be facing five to 15 years in prison if a jury finds otherwise. He's spoken
01:32:05.180
out on this publicly because it's become such a public case saying, well, I'll just play the
01:32:10.780
soundbite and him trying to correct some of what he says is the misinformation about what happened on
01:32:15.580
board that subway train that day. Stop 14. A man came on, stumbled on. He appeared to be on drugs.
01:32:23.340
The three main threats that he repeated over and over was, I'm going to kill you. I'm prepared to go to
01:32:28.380
jail for life and I'm willing to die. I was scared for myself, but I looked around. I saw women and
01:32:33.580
children. He was yelling in their faces saying, saying these threats. I couldn't just sit still.
01:32:39.340
Some people say that I was holding onto Mr. Neely for 15 minutes. This is not true. So the whole
01:32:44.220
interaction less, less than, less than five minutes. Some people say I was trying to choke him to death,
01:32:49.340
which is also not true. I was trying to restrain him. And some people say that this was about race,
01:32:53.740
which is absolutely ridiculous. I didn't see a black man threatening passengers. I saw a man
01:32:59.340
threatening passengers. A lot of whom were people of color.
01:33:05.980
Marsha, what do you make of this case and the additional lesser charge of criminally negligent
01:33:11.340
homicide? Well, the prosecution is making sure that they've covered all bases and giving the jury
01:33:17.980
a lesser charge to consider. And that's appropriate under these circumstances that are
01:33:23.500
tough to pin down. There have been a lot of conflicting reports, but the journalist who first
01:33:30.700
was present, an eyewitness, and I think, I thought, even recorded some of the interaction. Maybe not.
01:33:36.220
But he certainly described it as a very threatening thing and a threatening behavior in which he did
01:33:41.580
threaten to kill someone, didn't care if he went to jail, threw down his jacket. I can see
01:33:46.540
that others would say less so. But there were two others that helped him pin the man down.
01:33:51.660
This was obviously then pretty scary behavior. We also know that Jordan Neely, unfortunately,
01:33:58.060
was someone with severe mental issues and problems. And among them, assaulted behavior,
01:34:04.140
four charges of assault. Most recently in 2021, punched a 67-year-old woman in the face,
01:34:10.780
a stranger in the subway. So this is not to say that Penny knew about this
01:34:16.380
history. But he certainly saw behavior by someone that we now know based on the history,
01:34:21.500
did pose a threat, and probably then therefore was incredibly threatening at that time. So I can see
01:34:28.940
a jury actually walking him, or at least finding him guilty of a lesser charge.
01:34:35.820
I mean, Mark, to me, it would be just a travesty if this guy goes to prison for one day.
01:34:40.220
It's a travesty that he was indicted. I still, I have not been able to confirm whether he went in
01:34:45.980
front of the grand jury or not. This would be one of the three times in my career that I would put
01:34:51.500
somebody in front of the grand jury. That tape you just showed on its face. I just left New York. I
01:34:57.980
was there a week ago. I was walking on the street, saw the exact same thing happening on the street.
01:35:05.100
Because unfortunately, we live in New York and LA in some outdoor insane asylums.
01:35:10.860
And you see these people in the midst, you see how people are scared out of their mind.
01:35:16.700
And it's astonishing to me that we're criminalizing this behavior.
01:35:21.980
I mean, at a minimum, you go for a jury nullification. I just, I don't think a jury is
01:35:26.540
going to, a New York jury is going to convict this guy. I really don't. I don't think the race
01:35:29.740
card is going to work here. New Yorkers know the subways have gotten downright dangerous,
01:35:34.700
and we need more Daniel pennies, not fewer of them. Marsha, Mark, so great to have the gang back
01:35:41.420
together. And until the next time. Thank you, man. Thank you so much. What a pleasure.
01:35:47.340
Tomorrow, don't forget to tune in. We've got Carrie and Britt back with us. We'll talk to you then.
01:35:51.260
Thanks for listening to The Megyn Kelly Show. No BS, no agenda, and no fear.