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Manage the Moment: Conversations in Performance Psychology
Manage the Moment: Conversations in Performance Psychology
Tom Mesereau - Internationally Renown Criminal Defense Attorney - Part 2
Part two with Tom Mesereau, one of the best known and most highly regarded courtroom lawyers of our time. In this second half of the conversation, Tom delves into his unconventional techniques in the courtroom. Tom often goes against the expected grain in his craft as a courtroom attorney, but in doing so, he makes himself the most effective lawyer that he can be. Tom talks about how he manages controversy and what he believes makes not just a good, but a great lawyer: things like taking risks and having confidence in your own approach. He talks about managing the tough days, the unexpected moments, the tense courtroom exchanges, and how he avoids the perils of fame in his own celebrated life and career.
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Music by Brad Buxer
Thanks for tuning in to Manage the Moment, Conversations in performance psychology. I'm Dr. Sari Shepphird. Welcome back to part two of my conversation with Tom Mesereau, one of the best known and most highly regarded courtroom lawyers of our time. Despite some technical difficulties, Tom and I were able to finish our conversation and in this second half we delve into Tom's unconventional techniques in the courtroom.
Tom:There are tough things you just can't overreact. You know, I'm a criminal defense lawyer. I try challenging cases. I try cases of people warn me not to take. This is who I am, take it or leave it.
Dr. Shepp:Tom often goes against the expected grain in his craft as a courtroom attorney, but in doing so, he makes himself the most effective lawyer that he can be. You'll hear Tom talk about things like how he manages controversy and what he believes makes not just a good but a great lawyer. Things like taking risks and having confidence in your own approach. We talk about managing the tough days, the unexpected moments, the tense courtroom exchanges, and how Tom avoids the perils of fame in his own celebrated life and career. Here's part two of my conversation with Tom. Well, Tom, thank you again for sitting down with me.
Tom:My pleasure. Thank you.
Dr. Shepp:When we last spoke, we were discussing the unexpected and then the unexpected happened to my digital recorder. But if we can start up again there, I know that you prepare diligently for the trials, um, that, that you present and do a lot of reading even when, when the day is over in the, in, in the courtroom. And yet even as prepared as you may be, the unexpected often happens.
Tom:Well, the unexpected always happens in trials and that's one of the appeals of trials if you're built for this type of thing. I think every trial is unique. The chemistry between the judge, the jury, the prosecution, the defense, the jurors is a type of energy and a type of process that has never happened before and will never happen since. So every trial is a learning experience. Every trial, uh, forces you to step into the unknown and react in any appropriate way. Um, and that's sort of the attraction of trials. Now, some people are completely turned off by that pressure and that type of unexpected, uh, process. But I thrive on it. And I think most trial lawyers are really like what they do. They thrive on that as well.
Dr. Shepp:And I imagine the pressure that you feel doesn't just come in that form because you really do hold someone's life in your hands.
Tom:You do. Um, you know, the way our system works in the civil courts, we argue over property and money in the criminal courts, we argue over reputation and freedom. And, uh, many times you hold someone's life in your hands and if you lose in a certain way, they could spend the rest of their life in prison or worse. And I've done death penalty cases and, uh, you really hold a life in your hand in a death penalty case.
Dr. Shepp:And you mentioned reputation too. So sometimes you might have a defendant who is acquitted, found to be not guilty of the charges that they faced. And yet reputation is still damaged.
Tom:That can be a very, very difficult part of our system. But when I say reputation's at stake, what I primarily mean is if you have a criminal conviction, it can follow you the rest of your days, whether it's a felony or a misdemeanor. Now there are ways that these convictions can be, you know, expunged, uh, or softened. Um, but nevertheless, uh, to walk through the rest of your life with a criminal conviction can seriously affect your employment, um, can seriously affect, uh, your ability to be persuasive in certain situations. It can affect you in all kinds of ways.
Dr. Shepp:So that's when you really have to be prepared for the unexpected. You've said that you don't get too excited or, or feel too good after a good day in court and you don't become too dejected after a bad day.
Tom:I don't believe in overreacting because it's a process and each part interacts with every other part. And you know, you can talk to experienced trial. Trial lawyers will tell you some of the best work they did where it was in trials they lost. And you can see someone stumble around and not know what they're doing at all. And when, because it's not just a popularity contest among attorneys. I mean, jurors are trying to do the right thing. They're being hit from all sides with different arguments and interpretations. Um, and um, it's, it's not over till it's over. It's Yogi Berra, the old baseball player used to say. So, you know, I think one of the earliest painful lessons to try a lawyer learns is when you do a fantastic cross-examination when you're young and you think you've won and then you lose. So, uh, it's a very unpredictable, uncertain process. But good trial lawyers thrive on it and see it as a challenge, gets their adrenaline flowing. And that's one of the things we do.
Dr. Shepp:And part of your strategy is to be yourself in the courtroom. Is that right?
Tom:I've firmly believe that, uh, one of the greatest opportunities in life for anybody is to find out who they are and be comfortable with who they are. It just so happens to also be a benefit in the courtroom. If you know who you are, if you're at peace with who you are, if you're comfortable with who you are and you're real, that can take you a long way. And as I've said many times in lectures to law students, to practicing lawyers, I said, you know, we've seen theatrical, dramatic lawyers who are fake and very ineffective. We've seen very deadpan, somewhat boring, methodical lawyers who are very effective because they come across as real. They come across as honest and fighting for something they believe in.
Dr. Shepp:So that's, that's an integrity and a within yourself. And get the jury, you've mentioned, always assume that you know the truth even if you don't. So while you walk, so you walk into the courtroom being true to yourself and true to your role in the courtroom. But no matter, no matter what you may or may not know about the person you represent, the jury always assumes you do.
Tom:In my opinion. Yes. And that's a generality. That's a, that's a perception based upon decades of trying cases. And I think they think the lawyers really know what's going on. They know that everything is not coming into the trial. They've seen enough TV shows and enough, uh, you know, live trials on TV through the years to know that judges refuse to admit certain evidence. Judges will suppress certain evidence. Uh, there are certain rules of procedure and evidence that means certain things can't be said or done in a court room. They know that, uh, but they assume the lawyers know everything in my opinion.
Dr. Shepp:And part of what you have to manage then is your reaction to those unexpected things that might come from the bench. So I've read, for example, there were many things that were unexpected in, in the bill Cosby trial for example.
Tom:Well, I tried the second bill Cosby trial. The first trial ended up in a hung jury, uh, between the first trial and the second trial. The me too movement took off.
Dr. Shepp:Well that's interesting, it was between the two trials
Tom:and what the judge did in the retrial, which I, where I defended bill Cosby was basically in the first trial he allowed one additional accuser to testify under the theory that this would show a propensity to act a certain way or a pattern of acting a certain way. Then we have the me too movement. Then we show up for the retrial and he ups the one to five. So not only did we have the primary accuser in the case, the judge allowed five other women to testify that they were assaulted by Mr. Cosby, which is going to be a major issue on appeal as to whether, first of all, there was much similarity between the, uh, the accusers and second of all, uh, whether it was too prejudicial.
Dr. Shepp:So unexpected things that come from the bench, unexpected things that come from witnesses. Because I know for example, in the Jackson case, you had witnesses both that well, I guess multiple times witnesses that went in your favor in ways that you didn't expect. One witness who you thought might be very antagonistic, who turned out not to be. And, and then another witness, which perhaps you can, um, just refer to where your line of questioning led to something that opened up basically the, the whole trial for you.
Tom:I cross examined the main accuser who was a young person, 13 years of age. And the general rule of thumb in, in criminal defense practice is be very gentle with children. You can easily look like a bully. You can easily look manipulative and you could turn off the jury and even send the jury into the camp of the accuser, uh, more than they may have started off as, um, I had never examined this witness before. I had had a tremendous amount of material in his background. His school records, his medical records, uh, statements he'd allegedly made. Uh, I had, uh, volumes of material on, on him and, but I had to feel my way to decide how best to attack him. Uh, and I decided after watching him on direct examination, when the prosecutor asked his questions, I decided to go right at him and hopefully change his demeanor right away and show there's another side of this person that maybe isn't the nicest. That was my strategy. It was unusual. Um, and it proved to be effective. In fact, I got offers to speak to lawyers groups around the country after the trial about my unconventional way of handling child witnesses because they were all shocked that somebody would do this and it would be effective. But I think what you're talking about is a cross examination question that I asked that proved to be very effective. In fact, professor Laurie 11 scented Layla law school, who teaches criminal procedure and is called upon by the media quite a bit to opine on, on, you know, current cases in the media, in the news. She says, my one particular cross-examination question won the case. And before I tell you what it was, let me also mention that lawyers are taught that when they cross examine, you know, control the witness, keep them on a tight leash, ask leading questions. Uh, factually driven, factually contained questions that suggest the answer and keep them in, in a narrow bind. Don't let them just go wild and say whatever they want. And as part of that instruction and we're taught, don't ask a hell question and don't ask a why question because those questions, we'll let them just bring out the kitchen sink and it probably won't be favorable. When I was examining this young accuser and based upon my research into he and his family, I came to the conclusion that they had developed some anger towards Michael Jackson. And I've concluded that they got angry when they thought Michael Jackson was drawing away from them and they weren't going to be part of his family forever. So I asked this young accuser, um, about certain events that went on, it never land where they used to stay that I knew would bring up some anger. And for example, you know, didn't Michael Jackson tell you he wasn't going to be there in a certain day and you walked out of your cabin and you looked in the distance and you could see him? Did that happen? And he said yes, and or words to that effect. And I mentioned other instances where I thought he would be somewhat angry. And then I finally looked at him and said, you are really angry at Michael Jackson, weren't you when he said yes, and I said, why? And you could have heard a pin drop in the courtroom. And he gave this long list of things that angered him about Michael Jackson, but never mentioned that he was molested. And that was a big gamble on my part. Could have ruined, you know, the case for Michael Jackson could have ruined my career frankly. Um, but I just decided to go for it when I thought it would be effective and I was correct. Big moment in the trial and big moment in my career,
Dr. Shepp:certainly. And of course, again, that just speaks to how you manage your own emotions in the courtroom because you can be as prepared as any person could be. And I know that you, you do prepare extensively. You have binders on all of your witnesses and all of all of this?
Tom:Well I like to have for each witness, I like every document that mentions that witness and I'd like them all in chronological order. And the documents can be police reports, they can be transcripts of testimony, transcripts of interviews, handwritten notes of interviews, newspaper articles. I don't care what it is, I like to have them in contour in, in, in, in, you know, in order, uh, dated order, chronological order. And I like to go through them and through them and through them. And I start to see patterns where, where maybe statements change or maybe statements are embellished because of certain intervening events. Um, and I develop a, a profile in my mind of how I'm going to attack the witness.
Dr. Shepp:It's fascinating. You have more than just one job. I mean, we think of a trial attorney as the person who presents information to the jury, but you, you're a detective of sorts and you certainly have to be, uh, an accomplished presenter just to be able to phrase things in such a way that you connect to the jury.
Tom:Well, you know, early in your career, you know, you write out all your questions and you, you, you almost appear a slave to your, your notes and a slave to your questions. Cause you know, not only have you put a lot of time into this but you're not as confident in, in, in being spontaneous. You're not in con as confident in reacting to a certain statement and going in a certain direction and then coming back to where you were. Um, it's a skill that not everybody has, but I think reaction is very important, but don't lose track of where you want to go at the same time. So a witness will say something you never expected and you'll see an opportunity to go in another direction, ask questions in that direction, benefit from it. But you don't want to forget where you were because you were in that place for particular reasons. So a lot of it's in my head. Um, I go through documents repeatedly. I go through the evidence. I think of the story I'm telling. Um, I was very flattered in December. Uh, I had dinner with the, uh, public defender of San Francisco, a great criminal lawyer who unfortunately passed away not long after we had dinner. It was a real tragedy. Jeff, a DACI one of the great criminal in America.[inaudible] and he, he had invited me to speak a couple of times at the San Francisco public defenders. And one thing he said, you said to us, that changed our, really affected our office and changed the way we approached trials. You told us that there were four opportunities to tell your story in your opening statement, in your cross examination of prosecution witnesses in your direct examination of your witnesses and in your closing argument. So Jeff told me that they were now teaching this, uh, in their courses at the San Francisco public defender's office, which was a great compliment to me and I really appreciated it and was glad I, uh, I had an impact on, uh, on that great office. It's one of the best public defender's offices in America. Um, these things are, are not always taught in law school. You have to, if you care about what you're doing and you realize it's a craft and an art, not a science, and that psychology is a complex thing that you're always learning about, you try to figure out what's effective, what's persuasive, what makes an impact. And I remember one witness in the, in the Michael Jackson case, I had 20 binders of documents that I had been there all in chronological order. Uh, it was Michael Jackson's ex wife who everyone thought was going to help the prosecution. In fact, um, when I woke up that morning and was getting dressed and watching the morning shows, you know, they were talking about what a big day they expected for the prosecution and she blew up in their face. She just turned out to be one of our best witnesses. And I didn't use one document in those 20 volumes. I just realized where she was going. I realized she was in a very delicate state and I just very carefully and gently took her a few directions I wanted to take her. And it was a great day for us. And I remember the next morning getting ready for trial. And the, the news stories, you know, good morning America and the today show, we're all saying the lead story was words to the effect. Did a, did a main prosecution witness blow up in their face. You know, that was the big story the next day. Um, but you have to be prepared for, for things like that because it's just a very unpredictable process.
Dr. Shepp:And that's partly what's fascinating to me is the strategy that you have to maintain. And really it's, it's largely on you to do this just singularly for your, for yourself and for your client. Obviously you have co-counsel that might support what you're doing, but, but as you say, really a lot of this is just taking place in your own mind.
Tom:Well, I have to have help organizing. You know, I always have co-counsel who helps me organize and helps me put these books together. And you know, uh, I try to pick people to work with who will compliment me. I can be a little bit of a mad scientist is I'm preparing and I, I often prepare standing up, you know, in my office and walking around. Um, so trying in my mind to get my cross-examinations ready cause a lot of what I do is quick and spontaneous. I'm not just looking at questions, see another problem with lawyers who prepare in a conventional way. As I just mentioned, that I had 20 buy in volumes of documents prepared for a witness and didn't use one of them because things just turned out to be so different. The problem with a lot of lawyers is when they're preparing for trial is that they invest time and preparation. They want to use that preparation. You know, it becomes almost a narcissistic problem. You know, I did all this, I'm not going to scuttle it, throw it away. And they lose track of where the importance is. Um, the importance is trying to win the day for your client. And um, you know, if you see that you don't need your preparation or it might be counterproductive, just go forward, be spontaneous, react. Don't just pedantically read something because you spent so much time preparing it.
Dr. Shepp:So that speaks to the flexibility that you have to have in your mindset. You need to narrow your attention to what's essential for that day in your preparation. And yet you have to maintain a flexibility. Um, and, and I suppose, uh, a confidence within yourself to, to be able to, to abandon that preparation if, if it's called for
Tom:and it takes time to develop that. Not everybody has the ability to do it. They're not particularly facile on their feet. They're not particularly intuitive. They're not particularly instinctive the way I'm describing things. It's not for everybody, but a, it's certainly where I belong.
Dr. Shepp:Do you find that at times it's your conviction and only yours that you have to rely on in order to move forward in a particular line of questioning or decision making? For example, if you, if your co-counsel might even disagree with you and you're the, you're the one person who still has to maintain that, that track.
Tom:Well as I suggested before, if your cross examination of course you may have your cross-examining a main prosecution witness. Um, the Jim one general rule of thumb is don't let them just keep talking and talking object, you know, object. If somebody just goes off on tangents and gives speeches because they're probably not going to help you. In the Michael Jackson case, I had examined the mother of the accuser in a pretrial hearing. It was a pretrial hearing where I didn't expect to win the issue that I was presenting to the court, but I really want to take a look at her and she was a relevant witness in this evidentiary hearing and I said to myself, you know, she's a loose cannon, she's going to go off and all sorts of different directions and I think it's going to hurt the prosecution. So when she was called to the stand by the prosecutor put on direct examination, she started just giving these speeches and talks and he was looking at me waiting for me to object and I wouldn't object. I just said the more she talks, the more she's going to vary them. And he kept looking at me and finally he started objecting to his own witness, which looked terrible. So instead of me saying, objection, your honor, non-responsive, move to strike or answer, he was doing it and it just compounded their problems. And may that made their case look awful. Now that was not something you normally do. There was a lawyer sitting with the defense, a very good lawyer who kept looking at me, why are you letting this go on? And he didn't quite get what I was doing. Later on, when the jurors request you and they said she buried them, she buried them with her behavior, whether her statements, I mean, I did know what I was doing, but it was certainly not normal.
Dr. Shepp:And so sometimes the, the reinforcement, sometimes that support might not be where you would wish it to be.
Tom:Well, that's true. That's true. Um, but let me to say something else. I'm a little bit more of a risk taker than most. I think there were trials I've one that I never would have won if I hadn't taken the risks that I took. But if you're a risk taker, you get burned sometimes too. Um, but I just decided at one point in my career that, uh, the best trial lawyers, the ones who win the most cases tend to be risk takers.
Dr. Shepp:Did that come from some sort of a confidence that you had in your own skill and ability to take those risks?
Tom:Well, not early in my career. I think I had to learn who I was and learned who I, who I was, uh, in the courtroom, you know, and I think, I mean, I think we're always learning who we are if we're lucky. We're always evolving and hopefully changing and growing. Um, but I think that that applies to the court room as well. So early in my career I was trying to do what I was taught to do and I was trying to use the fundamentals of trial practice that I was taught in school that you, that you, you have in books about how to try a case. And it was as I learned that I'd said to myself at one point, what makes certain trial lawyers particularly great as opposed to good? What do these people have that the others don't seem to? And in the process of trying to figure that out through a lot of reading, a lot of watching, a lot of observation. I do society, they tend to be risk takers. They tended to take creative approaches to individual trials. They're not always successful. Sometimes it blows up in their face, but more often than not, I think they have prevail in cases where others would not prevail. And look, I mean, I've always said if you follow the fundamentals, you'll never embarrass yourself, but you also won't win a lot of cases you possibly could win if you took some risks. The careful lawyer who will won't take risks and and routinely applies the fundamentals. If you read a transcript of what they do, they look perfect. A lot of the transcripts, if you read them cold, you know, without being in the court room and watching the person, some of them don't read too well, but some of these great lawyers, I mean they make more a better impression in front of the jury with the way they speak spontaneously and off the cuff than they do in a transcript. They don't look perfect. They might look disjointed, they might be stream of consciousness coming out periodically. There might be all sorts of ways that they impressed juries with their case that don't come across so well in print. So some of the best lawyers don't look that great in a transcript and some of the mediocre lawyers look perfect.
Speaker 4:[inaudible]
Dr. Shepp:speaking of transcripts and impressions, um, I know many of Michael Jackson fans talk about the difference between the way Jackson is portrayed in the media even currently and the way he was portrayed after the trial, after his not guilty verdicts and what the trial transcripts actually reveal in 0.2. I recall watching the verdicts come in and, and um, and as anyone was in, in, in the country. And it actually crossed the globe really being interested in what was happening in this very high profile case. But we would hear snippets from the media, um, on, on the news. Everyone watched the news in those days. We didn't have the social media that we do now. Um, but so we would hear a little snips of snippets about that and get an impression about what was happening in the courtroom. And it turns out it was often not really what was happening in the courtroom.
Tom:Well, first of all, um, my experience with the media in that case for the most part was dreadful. Um, there were some very seasoned and very ethical professional journalists who covered the case, but very few of them in my opinion, there was Linda Deutsch from associated press, a total pro. There was Mike Thai AB from NBC complete professional ethical. There was Don Hobbs in the sand, Santa Barbara news press. She was just the perfect professional. Those three names come to mind and I want to make sure I don't lump them into the rest of the group. But by and large, the media was atrocious. The media was arrogant. They were self serving. You know, they wanted to see this, the most famous man in the world who took everything to great Heights, dance, music, choreography, uh, they wanted to see him splatter because it made a good story for them. It would bring revenue and ratings to them. And you know, I had always been a court TV fan. Court TV was on TV in those days. It's now back. Um, but I was always a court TV fan. I love to turn on it. It was 24 hours throughout the 90s, you know, and that you could watch, we wake up at two in the morning and if I felt like watching what a lawyer was doing and I could turn it on and there was a lot of commentary and uh, it, it really was to me, a great resource. But the turning point was the Michael Jackson case where they appointed someone who was anti Michael Jackson who had a history of being sued by him and she claimed she had revealed, she was the first journalist revealed that he was a pedophile when she worked for a TV show. They assigned her to cover the case, which I thought was atrocious. They should've had a neutral objective experience lawyer doing it, not someone with a history with Michael Jackson. So, uh, I didn't think much of her to begin with. And I would come home from court and we had a schedule where we'd start around eight o'clock and be out by I think one 30 and we wouldn't have a long lunch break. We would have 10 and 10 minute breaks and 15 minute breaks. So I would get back mid-afternoon to my condominium and I would turn on the TV for a little while to see what people were saying. And I would see the most biased, you know, slanted coverage. And what happened was the prosecution would typically call a witness. It would say something very scandalous and I would get up to cross examine and the media representative would run out of the courtroom to report the direct examination and not even watch the cross examination. And I got to tell you, I was able to demolish so many of their witnesses and cross-examination. I remember every day I would come back saying, God, they're just getting a drubbing in this case. Um, but it wouldn't be reported or it wouldn't be reported as much as the salacious material on direct examination was reported. So, um, I developed a very, very negative view of the media throughout that case. And then the, during the week of jury deliberation, the major networks were showing the jail cell they expected him to go to and talking about the routine he would have when he had to get up, what he would be served for breakfast. Uh, would he be on suicide watch? What would it be? What would he be allowed to read? How many visitors could he take? I mean, they were showing this everyday of jury deliberation. Like it was gospel. I mean, it was just irritating and infuriating to see that level of biased, uh, journalism or if you want to even call it journalism. But that was a very negative experience for me.
Dr. Shepp:Do you find that it varies case to case how the media might portray a criminal defendant?
Tom:I think, I think it does. Um, I haven't thought of that question before. Um, I think unfortunately there's something salacious about seeing someone convicted and hold off the jail and, and sent me away and, and come back and jail house orange or jailhouse yellow with chains around them. There's something salacious about that. Um, I don't think the media, thanks very much about showing innocent people. People wrongfully charged, wrongfully convicted. You'll see a few shows like that. You won't see very many[inaudible]. I mean, let's face it, the last I checked, over 300 people had been freed from life sentences, death sentences, enormously long sentences through DNA technology. I mean, that's over 300 people whose lives and his family lives were devastated by wrongful convictions. Now think of the people who haven't had DNA to test, who were wrongfully convicted based on faulty eye witness identification. Think of the people where there was DNA, but it wasn't tested for a variety of reasons. So our system is the best system in the, but it's far from perfect and law. Innocent people are destroyed and the people around them are destroyed through wrongful conviction. So if the media does cover some of this, um, but I think in general, my perception is the media would rather just cover people convicted and sent to prison and uh, look like they're on the side of, uh, of, you know, crime prevention, that kind of thing.
Dr. Shepp:We find ourselves in a new situation as well in contemporary times where things can be said about a person who is deceased and there's, at least in California, there isn't protection for that person's reputation or character once they've passed on.
Tom:Well, I'm especially bothered by it because one of the two accusers I spend a lot of time with and was so impressed with his zeal to help Michael Jackson in the trial. And I'm talking about Wade Robson. I spent time with him before the trial. I spent time with his mother, with his sister. They were zealous supporters of Michael Jackson. They were adamant that nothing wrong had ever occurred. And I was so impressed with Wade Robson, uh, in the way he presented himself. He was very likable. He was intelligent. Um, he was very articulate and very adamant and forceful that I was never improperly touched. I was so impressed with them that I made in my first witness in the defense case. And you know, I had to think long and hard about whether I wanted to put on a defense case because I felt the cross examination of prosecution witnesses had been so effective that I felt 99.9% of criminal defense lawyers in America would have rested their case right there. But the problem was I knew in my heart of hearts they wouldn't get a conviction at that point, but I wasn't sure I would get acquittals on every count and I didn't want them retrying Michael Jackson. So I decided to put on a defense case, which meant taking risks because every time you call a witness, you've got to give the prosecution a chance to cross examination that witness and do whatever they want to do. So if you're going to put on a defense case and take the risks involved, you want to start strong and you want to end strong. I started with what I thought was my strongest witness for the defense, Wade Robson. And I ended with one of the strongest witnesses for the defense, Chris Tucker, the comedian. And my second witness was Macaulay Culkin who was very powerful and said I was, he's my friend. He never improperly touched me at all. But I started with Wade, who was a terrific witness and withstood, withering cross-examination by a really good prosecutor, uh, Ron zone and one of the best prosecutors I've ever seen. Great. Cross examiner, passionate, you know, detailed, committed. Uh, he couldn't but make Wade Robson budget inch. So when years later when Michael's dead and can't speak out on his own behalf, suddenly mr Robson changes a story that's very upsetting to me cause I'm a direct participant, direct witness in what I'm talking about. Um, plus I think it's a cheap to start coming after the dead when they can't speak up on their own behalf. I have not seen the four hour documentary leaving Neverland and I don't intend to see him.
Dr. Shepp:I know you've spoken favorably about Mr. Jackson is as your client and said that he is very likable and that you um, you, I'm not sure if I could say you enjoyed working with him. I'm not sure if that's the right phrase, but you found him to be very likable. I imagine though that there's times that you work with clients that aren't as likable.
Tom:Well, sure. I mean it's a very stressful period to begin with. I mean the state or the federal government are trying to take away your freedom, trying to in a sense destroy your life and, and that can impact all sorts of people, children, cousins, parents, you name it. You know, families are involved too. So it's a stressful, ugly time to begin with. Um, and add to that the fact that some people are nicer than other people and some people are more stable than other people. And you do sometimes represent people who are not the nicest individuals on the planet. Uh, they don't particularly trust lawyers, uh, given their experiences and some of the things they've heard, lawyers aren't necessarily their favorite people and that's just part of the business.
Dr. Shepp:So how do you manage it when you might have a client who is into antagonistic toward you, even though you're doing your best to assist them?
Tom:I do my best to keep focused on what's important, not let their individual frailties or poor habits or, you know, poor behavior affect me. I do my best not to, uh, let it get in the way.
Dr. Shepp:And do you have clients that challenge you in their fame? So for example, a client who is a high profile client and brings that sense of presence, their fame into their conversations with you. Um, is that something that you have found to be the case?
Tom:[inaudible]. You do represent sometimes people with big egos for sure. Um, and you represent people who are used to calling the shots in their life. They're used to telling their agents they want this, their managers, they want that. Their lawyers who do real estate or business or tax or entertainment, they'll tell them what they want. They'll call the shots and suddenly they're in a, in a world they know nothing about and some realize they know nothing about it and others want to behave the same way and you have to let them know this is a world unlike any world you've been in. You know, things don't work the same way they do and these other legal specialties or in the rest of your life, uh, as you've been running it, you know, you better listen to me because a lot of what goes on in the courtroom is counterintuitive. It goes against the grain of what you've been taught. It's not like these trials you've seen on television. It's very different being in there yourself when you're the accused. So you better let, uh, let the lawyer tell you what to do in certain situations or you may regret it. Later on. I had here just remind me, I had a murder years ago, was a woman sitting in LA County jail, grew up in a poor neighborhood, had no money. Uh, she was charged with murdering her ex husband coming up from San Bernardino County to Los Angeles County and murdering her ex husband. And I got a call asking me if I would be willing to talk to her. And I said I would and I agree to represent it for free. And I noticed in the relationship from time to time, she seemed rather distressful. Why are you helping me this way? I don't think she was used to anyone helping her this way. And we tried the case. I was against one of the top prosecutors in Los Angeles, a very highly respected and skilled and experienced prosecutor. And uh, at one point with the jury out of the room, she said, your honor, I want to tell you all the things that mr Mesereau is doing to me that aren't right. And she started, uh, out loud to list things that I think some of the people in the jail that told her he should be doing. You know, you've got a lot of jailhouse geniuses who don't know what they're doing but think they do. And I stopped her right away and said, stop that right now. You're not helping yourself. And she stopped. And to make a long story short, she was acquitted and she still calls me periodically, uh, thank me and hasn't forgotten. This is, you know, that 20 years ago. But I mean, uh, people are suspicious of lawyers. And on top of that, I was doing something very generous to her that she wasn't used to. So she was suspicious of that. You know, I've done my share of pro bono work in my career. I had another, uh, former gang member charged with murder in the Compton courthouse. Uh, and a friend of a friend begged me to help him. He had no money. I did. And he got suspicious. Why are you doing this for me? What were you, he'd look at me, why are you doing this to me? Why are you being so nice to me? He didn't know what was going on and wondered one time that the da had planted me, you know, I said, you know, and he was acquitted of murder. Um, and it was a, a very, very ugly gang shooting with a number of eyewitnesses and a prosecutor who had never lost a, a gang homicide case. He'd went over 70 of them. And, uh, he realized I was, you know, I met what I told him that I really believe in justice and I, you know, was brought into this case by a friend of a friend who I respect and that's how I met you. You know, and I'm here to do my very best with you. So, you know, people's perceptions of lawyers are not always the greatest. And sometimes they're very incorrect. I may, in our public defenders get a very bad rap in the jails and prisons that, you know, they call them dump trucks, they call them public pretenders. Um, and some of our public defenders are the best criminal defense lawyers in the country. They're dedicated. They're unsung heroes and heroines. Uh, and they do a great job. And, and much of the time they do a great job, uh, with no whatever, with no understanding whatsoever with great suspicion coming from the jails. And I've seen them do such a good job and not be appreciated. Um, but they will still, you know, defend whoever they're told to defend, regardless of how difficult the cases, regardless of Ellen popular their, their client may, it may be regardless, so unpopular. They may be. Um, and there's the, they're the unsung heroes and heroines of our justice system, the public defenders around the country.
Dr. Shepp:I imagine you've seen different kinds of responses among attorneys, your peers, those who handle it admirably like you're describing and, and work because of the passion they might feel or the conviction they might feel or, or doing the right thing. However they might describe it. And those who, whose motives are more about fame and glory. And you've talked before about the perils of fame.
Tom:Well, I think fame is an addiction. I think it's an a, it's a very, very addictive, powerful drug. And you just give a tiny bit of fame to your average human being and the act like different people all of a sudden. And that really applies to lawyers. Lawyers get in a high profile case and a couple of cameras around them, a couple of reporters, one comments, and you see a glow in their eye and you see a different demeanor and suddenly they start beginning to think it's all about them. It's not all about them. It's about the client. And fame is a very, very well fame can kill. We all know that. I mean, the last I checked, the three most lucrative dead celebrities estates were number one. Michael Jackson, you know, dead at 50 number two, Elvis Presley dead at 42 and number three, Marilyn Monroe dead at 36 so fame can kill you. Fame will make you think things about yourself that are not realistic. Fame, well get you treatment that no one else would give any that no one else would get. I mean, look at poor Michael Jackson being given propofol to help sleep. If you are, I had an insomnia problem and went to a physician, they'd never give us propofol for that purpose. A look at the medications that were given to Elvis Presley and I perhaps Marilyn Monroe, I'm not quite sure. Um, some people think that was a suicide. I may have been an overdose. But nevertheless, celebrities are treated differently because they're celebrities and sometimes they're treated differently in ways that are fatal. And all of a sudden everybody wants to be your friend and everybody's got something you need and everybody wants to remind you of what they did for you when you were coming up. So you'll owe them something and everybody wants a loan and everybody wants this favor. And if you give them a loan, they resent you. And if you don't give them a loan, they resent you. I mean, I can talk about fame forever. It's a very dangerous, addictive commodity. And you've gotta be very careful with the lawyers who've had a fair amount of fame because they may think it's all about them and not you, the client.
Dr. Shepp:Have you ever witnessed, and you wouldn't have to say who of course, but have you ever witnessed an attorney who was addicted to their own fame and then you've seen that addiction costs their client?
Tom:Well, it would be my opinion that it cost the client. Oh yes, of course. Of course. I've seen things that are very unacceptable, very disturbing to me as a a, as a criminal defense attorney. I've seen lawyers clearly think it's all about them and get completely enamored by the media. I've even heard of one who was entertaining the media every, you know, most nights during a very high profile trial. And even the media people who told me about it thought it was foolish, but they were going to take advantage of it if they could. And the media know that lawyers can be manipulated and the lawyers are suckers for fame. So, you know, I've had media representatives, you know, suggest to me they could do all sorts of things if I would help them in a certain way. And, uh, you know, for most people, I think what their approach probably would've worked. It didn't with me.[inaudible]
Dr. Shepp:well, your, your conviction is very clear, the way that you're true to your own principles and, and your own approach. And I know that you, you developed that over over a number of years of your experience. Just the willingness to take risks, the willingness to be unconventional. You talk in many of your writings about the fact that you approach things sometimes very unconventionally.
Tom:Yes. And I think that the product of taking my profession very seriously, and as I said before, at one point early in my career, I said, why are some lawyers better than others? You know, we all go to law school, we all pass the bar exam, we all take trial practice classes, we all take refresher classes that we're required to take, uh, to continue to be a practicing lawyer. We all go to seminars. Um, why are some better than others? What is it? What made the difference? And I would read biographies. I would read autobiographies. I would go down to watch lawyers try cases. I would look at video tapes and audio tapes in the old days, you know, now of course it's on the internet, but, um, I would do whatever I could define some kernel of something that may be is people different or better. And I decided that, uh, you know, knowing yourself, number one was critical. Uh, experience was critical. But trying to find where the heart of a case was and what story really resonates from the facts and taking risks to get witnesses to help you, uh, or conversely to get witnesses to hurt the other side, uh, that it was an art, not a science, that you'll never completely master it. You're always learning if you're lucky. Uh, and I looked at some of the lawyers who were considered good, but maybe not that great. And a lot of them basically stop learning. They reached a level of experience and success that made them think, you know, my over, you know, I'll teach you how to do it. An arrogance and narcissism that, uh, in my opinion, stop their growth and didn't help them.
Dr. Shepp:So a willingness to learn is important. Yeah,
Tom:very important. And a willingness to try hard cases. Cause there are a lot of lawyers out there who handpicked their cases. They're afraid to lose, they're afraid of loss, will Turners the reputation or will hurt their sales pitch, uh, to unsuspecting clients. And I've always said try the hardest cases. Try them your whole career. Don't shy away from anything, you know, every case teaches you something new and do your best under the worst circumstances and make our system work.
Speaker 5:[inaudible][inaudible][inaudible][inaudible]
Dr. Shepp:you've said the same thing about adverse experiences and situations in the courtroom to not shy away from those, but, but to really face those head on,
Tom:I think a, you should embrace the things that are most difficult and find a way out of them that helps your client and you know, helps you help your client. Um, you know, we all know as you walk through life, you know, there's the, the half full glass example, you know, the optimist looks at, uh, how much is in the glass and the pessimist looks at how much is not in the glass. Well that can apply to any tough experience in the courtroom. You know, a, you try to find what you can that will help your client and help you get the job done.
Dr. Shepp:Are there days when you're not at optimist? Are there days when, when you, you feel as though you, you don't have what it takes to, to face the courtroom that day? Or, or would you say that you just trust yourself enough? Um, and you're on self efficacy enough to make it through?
Tom:There are tough days because if you're a caring person, if you're a sensitive person, you're going to have ups and downs. You're gonna have good days and tough days and you just can't overreact to them because the story hasn't been completed yet. But I think that any really conscious caring lawyer has a sensitive level, uh, emotionally that will insist that you have some bad days. There are callous lawyers out there. They don't care. They're burned out on jails. They're burned out on violence and blood and guts and, you know, difficult clients. They're burned out. They're just making a living. So they tune out to some of the areas I'm talking about so they don't get bothered as much. Um, but if you really care, you are going to toss and turn. Should I have put that witness on? Should I put my client on? Uh, there are times you put a client on what you don't have to in a criminal case and the client will have some bad moments and heart[inaudible] as you're watching drop into your stomach. You know, you're just trying to keep a, a, a very even keel persona and you're trying not to look like anything's bothering you. But I mean, inside your, you're, you're doing somersaults and after a loss, you know, if you care, you, you have what I call the dark night of the soul. You toss and turn. But you know, should I have done this? Should I have done that? Um, but you have to have tough moments if you care. I think
Dr. Shepp:I'm sure people who are listening can really relate to what you just described because it's part of the human condition. To have those moments where you've experienced things from on a spectrum, from regret to just second guessing or questioning yourself to just the, the, um, inner turmoil of things that, that are challenging and sometimes don't go your way.
Tom:Well, I mean that, that, that's, that's just true. I mean, and, and sometimes you have to understand that what you think is a victory, uh, may or may not be a victory. And what do you think is a loss being or not be a loss? I mean, it may be that you walk into a courtroom defending a murder case where you're hoping you can get a manslaughter conviction cause the facts are so bad. Um, and you come out with a manslaughter conviction and you, you feel very, very good about it. I mean, um, uh, you'd like to get an acquittal on every count, but sometimes getting convicted of a lesser offense is still given all in all the facts and given the situation is actually a win.
Dr. Shepp:It's interesting because you bring up the lesser offenses. Uh, and I remember in the, in the Jackson trial, um, something occurred in, in that trial which gave the opportunity to the jury to find Michael Jackson guilty of lesser offenses. This, I don't think even was something that was present when the trial began. I think that was something that occurred as the trial progressed.
Tom:That's true. The judge Michael Jackson was indicted by a grand jury on 10 felony counts. That's the way we began the trial. When the judge gave the charge to the jury, which is a fancy way of saying he told them what their to consider. He on his own volition, he and his own motion decided to give them the option of convicting on for lesser included misdemeanor counts. What the judge said to the jury was, if on any of those last four accounts, you find Mr. Jackson not guilty, you may still convict on a what is called a lesser included misdemeanor count, which is giving alcohol to an underage person and they came back with 14 not guilty. He's not guilty on the 10 indicted felony counts and not guilty on the four lesser included misdemeanor counts of giving alcohol to an underage person. We walked into that trial. Nobody gave us a chance. In fact, some of my close friends warned me, don't take the case. They said it's going to be the most watched case in, in American history. Um, it's gonna be watched by millions of Jackson fans around the world. A, you can't win it. Um, everywhere you go for the rest of your life, you're going to be the one who sent Michael Jackson to prison. And I know some lawyers who strongly urge me not to take it and said they wouldn't take it.
Dr. Shepp:How did that pressure get to you?
Tom:Not really. I thought about it and that's not who I am. I'm a criminal defense lawyer. Listen, there are lawyers who, if they want a case like that would be very careful what other trials they did, um, because they'd want to retain this aura of invincibility. And I don't do that either. You know, I'm a criminal defense lawyer. I try challenging cases. I try cases that people warned me not to take this as who I am, take it or leave it. I'm proud I'm not a cherry picker. Like some famous lawyers I know who stick their toe in the water to see what the temperature is, to see if they really think they can win it. I'm proud to not, uh, not operate that way.
Dr. Shepp:Well, it's clear that you know yourself very well, which I'm sure helps you in your work. As I said, when we met last, I really could talk to you for hours and hours because it's fascinating. It really is. But I don't want to keep you much longer. I'm, I'm just gonna switch gears if you don't mind and ask you some questions that I ask of everyone that I speak to. Uh, so we'll jump into that if that's okay. So, Tom, what in life are you still curious about?
Tom:I'm curious about all kinds of things. I mean, I'm curious about a, my family that I love dearly. I'm curious about myself. Uh, I feel like you're always learning and always, you know, developing if you're lucky. I'm curious about, uh, life in general. Our justice system will always be of curiosity to me because it's always changing. It's always trying to evolve into something better, but it never is perfect. Um, I'm curious about people and how complex they are and how they change with the times and how what we prioritize seems to change with the times, particularly the age of social media, which I don't know that much about, and I'm not a social media person, but the impact on our youth, the impact on our society or civilization is fascinating to, uh, to try and work through.
Dr. Shepp:And it impacts the courtroom, I would imagine too.
Tom:Well, yes, because you're always worried about what's going to impact a jury. And, and even though judges tell jurors or potential jurors not to look at social media about the case, you don't know if they're really doing that or not.
Dr. Shepp:Oh. Which is more distracting to you in, in the courtroom or as you do your work praise or criticism?
Tom:Well, I'd rather take the criticism than the praise. Praise doesn't teach me very much. Uh, we all like it. We all smile a little bit when someone praises us. Um, uh, but it doesn't teach you very much. I like, I love to talk to jurors after trial and, uh, whether I win it or lose it, I always like to ask them, did I do anything that upsets you or irritated you? Do you use, can you think of any area where I can improve? I always do that. I've noticed that a lawyer is just loved to get praised out. You know, when a trial's over by jurors and if there were smart, they say, well, tell me somewhere I can improve anything. I do irritate you. Did the way I treated any witness, upset you and find out whatever you can.
Dr. Shepp:You're willing to make yourself vulnerable enough to receive criticism. You're, you're soliciting it in order to make yourself better at what you do.
Tom:I think that's a, I think that's a better way to live. Period. Let alone just, you know, how to try a case. I think we should always be looking for constructive criticism to help us evolve as people and, and do a better job with, uh, with our short lives. A certain level of success, uh, gives people a narcissistic, you know, shell and can actually shut them out of constructive criticism, you know, helpful suggestions how to improve themselves and I hopefully don't live that way.
Dr. Shepp:Tom, as a, as a courtroom attorney, you obviously prepare for every trial, which we've spoken a little bit about and yet the unexpected can happen. Is there a time when something unexpected has happened to you and you felt like it threw you off? Like it, it really, um, set some of your progress aside.
Tom:Part of being a trial lawyer is to be prepared for the unknown, for the unexpected witnesses you thought would collaborate. You end up helping you. What is you, you thought would help you end up collaborating? You? Um, the unexpected is a continuum in trials and you don't really know who those jurors are. You know, you, you, you, you see them for the first time in a courtroom setting, you get a little information about their background. Um, you, you're able to question them a little bit depending on what courtroom you're in. Some federal courtrooms, judges won't let you question them at all. They will do the questioning. But nevertheless, uh, you have these people up there who you don't really know and who may not even know who they are themselves. I mean, so you're dealing with all this uncertainty. You don't know what's gonna resonate with them. You don't know who's going to take control in the jury room, who's going to have more staying power, who's going to be more locked into their positions. And, and all of this is uncertain. It's unknown. Um, the only thing that's certain is uncertainty as you walk into a trial. So, um, you have to be ready for that. Sometimes you react better to it some days than other days. Um, but I've had witnesses shock me with, um, with things they said and things they did. Um, and that's just part of the game. Yeah.
Dr. Shepp:So you control what's controllable. And
Tom:you do your best. You do your best.
Dr. Shepp:You're taught how to control situations in the courtroom as best you can. Um, but again, you don't know how any of this is impacting jurors. If you try to restrict a witness and control them and don't let them go off on tangents, a jury might say, that person's tricky. They're just manipulating the juror. We want to hear everything. We want to hear everything they have to say. You just don't know how that will impact. If you object too much, you don't know if some jurors will say, that person's a trickster, that person's a technician. You know, they're trying to block the truth. You just don't know you do your best. Uh, in the situation you're in, what is one comment that still stands out to you because of its impact, whether that's good, bad, or for whatever reason?
Tom:Well, I tried a very ugly death penalty case about probably 18 years ago, I think, uh, in the state of Alabama. I did it pro bono and my client was a white man who had been on Alabama's death row for six years. He had been convicted of a double homicide. Um, two young men were innocently just shot to death in a park and there was evidence of drug use and, and devil worship and other things, and the jury convicted them and sent them to death row. The conviction was reversed on a pure technicality and it came back for a retrial and I was asked if I would help defend them and I said I would. And uh, it looked like an extremely difficult case. Uh, just on paper say that he had testified in the first trial that he was using these different drugs. Uh, any rate, uh, I agreed to defend them. Um, part of our defense was that one of the prosecution's main witnesses was actually the one who did the murders. And he had been a friend of our client. He had been a main witness against him in the first trial. Um, saying that basically our client had admitted doing all of this to them and told him what happened. So I'm cross examining this person on the stand and he doesn't realize what I'm doing, but I'm asking him very detailed questions about the crime scene and he claimed that everything he knew he had learned from the client. So I'm asking him about the distance between this factor and that factor. I'm asking him to describe how this body was positioned and asking him to describe how another body was positioned. They asked him about shell casings. Were they on the ground? Where were they? And he was answering in precise detail all these questions and at one point, and he didn't realize what I was showing the jury was that he didn't learn this just from being told, you know, you can't remember this from just, you know, having a normal, normal conversation with a friend. So at in Alabama the courts permit what are called speaking objections. And a speaking objection means you object and you give the reason for your objection in front of the jury. In most States like California, you can object, but you can only give a very abbreviated description of what the objection is. Otherwise you have to do it at sidebar outside the presence of the jury, you know, uh, in other words, you could say, objection, relevance in California, but if there's any more to discuss, you say, your honor, may we approach? And then you discuss outside the presence or hearing of the jury why you're thinking it's irrelevant. But in Alabama they have speaking objections right in front of the jury. So at one point I asked this person, I switched gears and said to him, isn't it true that on one occasion you particularly, you took a hand gun and put it to a baby's head? And the prosecutor jumped up and said, objection, relevance. And the judge said to me in front of the jury, what's the relevance, mr misery Allen? I said, your honor, the relevance is, and I pointed to the witness, that's the killer. And he had an expression on his face, which was almost, he was almost agreeing with me. His head sort of went up and looked like it was going up and down and he was smiling. And I think that may have been the key moment in the case. My client was acquitted. Uh, my co counsel says it was the most Perry Mason like moment he's ever seen in a, a in a criminal courtroom. And he does lots of capital murder cases in Alabama. He's, he's the best Capitol defender in, in city of Birmingham. But that was where someone didn't say something, but their demeanor and their reaction in my opinion spoke volumes. And of course in our closing arguments, we talked a lot about that.
Dr. Shepp:That really is a Perry Mason moment for sure. Yes, yes. My goodness. Wow. And I know you had some of those moments in the Michael Jackson case as well, which, um, we spoke about but didn't actually make it onto the recording because of my recorder last time where you were questioning one of the main accusers, um, if a member of the, of the family of one of the main accusers about the pornography that he had alleged that Michael Jackson had shown him and it turned out, I'll let you explain it.[inaudible]
Tom:well, that, that, that was the brother of the primary accuser who claimed he had seen his brother being molested. And the both of the brothers had claimed that Michael Jackson was showing them pornography. And the prosecution's theory was that this was designed to condition them, uh, to be molested. Um, so the prosecution had introduced into evidence a lot of pornography, but it was heterosexual pornography was Playboy and penthouse and things like that. Uh, they introduced a edition of Playboy that this witness said Michael Jackson had shown him,
Speaker 4:um,[inaudible],
Tom:you know, the, the word is grooming the, basically the pressing was saying this was part of the grooming process to prepare these children to be molested. So I got up on cross examination and said to him, you know, words to the effect that I remember exactly what the question was that you're sure he showed you this magazine? And he said, absolutely. And then I proved that the magazine wasn't even published until after they had, the family had left Neverland. And that was a, a good moment for us. But the prosecution kept showing to the jury one naked picture of naked women after another. And I was thinking to myself, do they really think this is helping? And I don't think it did. And I think the verdict showed it didn't.
Dr. Shepp:So this is a different kind of question now on the, on the heels of that one, but, but how do you move on from failure?
Tom:You, uh, you're depressed for awhile, you're down, uh, you're upset, but you realize it's part of your business and it's part of your profession. And your, I say if you care, if you're sensitive of it, it, it sticks to you for a little while, but then you move on and you bounce back. Like we all have to do in life in many different situations.
Dr. Shepp:Have you ever had what you would say was a transformative moment in your work and if so, what was it?
Tom:A transformative moment in my work?
Speaker 4:Um, well,
Tom:you know, I w when I was coming up I did a lot of low pay and pro bono cases, um, which I'm very proud of and I still do a pro bono murder case in Alabama every year. Um, I have a small free legal clinic where we twice a month at a African American church. We counsel people, lawyers and law students and volunteers, paralegals donate their time. I'm very proud of this kind of work. I, I, I marched with a women of Watts every year for the last 16 years, 17 years, uh, against gang violence, through the projects with the children to try and help the situation as best I can.
Speaker 4:Um,[inaudible]
Tom:these I often tell lawyers cause cause we live in such a society to me is becoming more greedy. The cost of living is high, the cost of education is high. The cost of housing is impossible. A young people come out of school feeling like they're, they've got a mortgage without a house, you know. And in a situation like this to tell people they should do something pro bono or charitable is often falls on deaf ears. Um, but I always tell people, you're going to get more out of it than the people you hell. You watch what it does for your spirit and your soul. There are so many unhappy, unhappy lawyers who would feel better if they did something like this. But I took a case in 1995 or 96 I represented a former city council woman in Compton who had been indicted by a federal grand jury for various counts of corruption. And they had that the FBI had infiltrated her life in very unsavory ways. They had an informant, she was African American. They picked an African American man who was a convicted felon who was working with him, had him approach her with flowers in her office. Uh, he gave her a card saying he was a success, was essentially presented himself as a successful businessman who would get her involved in the company. Took trap trip, traveled to Mexico with her. Uh, I thought it was very unsavory what they did and they taped her for over a year, allegedly taking bribes and they admitted that it took them about a year to get her to take one, which I thought was unfair, but then they tape, they tape recorded her for another year, you know, in their minds taking improper payments. I took the case pro bono. There were about over 600 tapes, audio and video in the case, massive amount of documents. Um, and a one point I, it was a Saturday night, I was in my office at the century city just weary from listening to tapes and I heard this tape and something sounded off and there was clanking in the background. There was discussion about Notre Dame football and I realized that two FBI agents and their informant were waiting for her to arrive for allegedly the first payment. And the informant says words to the effect, they are greedy. Every black one's coming from everywhere. Let's put her on ice and get another one. And I was appalled by this discussion and it was clear to me they were accidentally taping themselves. Now, I had been given transcripts prepared by the FBI of these conversations. The government had already tried the mayor in the same investigation. They had tapes of him, he had, he had resources. So he hired private counsel who clearly didn't just listen to the tapes, they read the FBI transcripts. I looked at the FBI transcript and it left out this stuff. So I made a motion to dismiss the indictment for a selective prosecution based on race and mentioned that a FBI agents and the informant had a discussion and filed a motion and the government was just indignant. And the prosecutor was a very good prosecutor, said he had talked to the agents and they had done this. And then I just pull this tape out of my pocket and said, why don't we listen to this? And it was a pretty dramatic moment. A, they were horribly embarrassed. The judge would not dismiss the case, but, um, she was not impressed with their behavior. But I say she wouldn't dismiss the case. It was a moment, you know, a lot of people said to me, why are you doing this case? She's been on the news. They've showed these tapes with her taking money. And I said, look, you know, um, their behavior was deplorable. Putting this man in her life to become her lover, to travel to Mexico. Whether he became her, one of her campaign managers. I said, this is absolutely, you know, beyond the pale. Then I found another tape where they were talking to a former mayor who was African American. They were talking about offering him a white blonde woman in a hotel. And of course he doesn't know he's being taped or set up. And I just thought this was very unsavory behavior even though she was convicted, but she was acquitted of a lot of accounts, which I'm very upset the government tremendously and she got a very minimal sentence below, way below what they wanted. I felt very good about exposing this in the way I did. And this is another example I hope of what criminal defense lawyers do. We make them think twice about bending the rules. When I say them, I mean government, prosecutors, FBI agents, police, whatever agency is working with the prosecution. We call them to task when they do things that are improper, we may not totally win the case, but we went a lot for Liberty and for freedom for all of us when we expose this kind of stuff. So you say transformative. That was a, something I was very proud of. It burned a hole in my bank account. I will still tell you that
Speaker 1:it transformed more than one aspect of your life. Well, finally, Tom in, in brief, what have you learned about yourself from your particular work as a trial attorney?
Tom:I think I've learned that I can be effective in this particular setting. I think I've learned that I combine, I hope a certain level of toughness with compassion and empathy and kindness. Um, that works, you know, um,[inaudible] I certainly have learned that, uh, we live in a very difficult society where greed and callousness towards others is alive and well. And you know, the late Clarence Darrow, one of my heroes, uh, who was one of the greatest trial lawyers in American history, tried very difficult cases in very difficult settings and saw the worst of society and saw the worst of government oppression and misuse of power. And he could be fierce in the court room and snide and sarcastic and going after the other side. But I think people also who watched him knew there was a compassion and a kindness. And a humanity to him that you rarely saw. I would like to think that I have an empathy and the compassion that that comes out. Uh, I think it's a strength, not a weakness. I think there's a misnomer about tough lawyers. Tough lawyers sometimes are the worst and least effective lawyers and sometimes decent, honorable lawyers who are human and not perfect are more effective. Um, I think I've learned that I'm compassionate and kind and that that can be a strength. I hope.
Speaker 1:Well you very kind to spend your time meeting with me and I have learned a lot from you, so I really appreciate you taking the time to chat.
Tom:Well, it's been my pleasure and I'm very much appreciate that you ask great questions and thank you for thinking of me. Thank you so much, Tom. Thank you.
Speaker 6:Okay,
Speaker 1:this has been managed the moment with dr Shep.
Speaker 6:Okay.
Speaker 1:Life is a collection of moments. It's how you manage the moments that makes the difference. Wow. My sincere thanks again to Tom Mesereau for joining me for this conversation and thank you for listening. You can subscribe to the manage the moment podcast for free just by clicking the subscribe button wherever you're listening to this podcast, and then you'll be sure to get the newest episodes as soon as they're uploaded. And for more information about the manage the moment podcast, you can see the episode notes for this broadcast. You'll also find us on social media, and I'm on Twitter and Instagram at dr Shep. Thanks so much for listening and taking the time to share these moments with us. Until next time. Right.