Cop sentenced in shooting; Amber Heard settles lawsuit; Weinstein convicted – TCD Sidebar
In this episode of True Crime Daily The Sidebar Podcast
Joshua Schiffer joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss the sentencing of a former police officer following a manslaughter conviction, the settlement agreement reached between Amber Heard and Johnny Depp, criminal charges leveled against the father of the alleged Highland Park shooter, and the conviction of Harvey Weinstein.
Tweet your questions for future episodes to Joshua Ritter using the hashtag #TCDSidebar.
Joshua Ritter:
[00:00:10]
Hello and welcome to True Crime Daily's The Sidebar, taking you inside the courtrooms of high profile and notorious cases from across the country. I'm your host, Joshua Ritter. I'm a criminal defense lawyer based here in Los Angeles and previously an L.A. County prosecutor for nearly a decade. You can find me at JoshuaRitter.com. We are recording this on Wednesday, December 21st, 2022.
A lot to cover in this week's episode. It's going to be a good one. And we start with the sentencing of a former police officer after a manslaughter conviction for an on-duty shooting. Plus, a settlement agreement reached between Amber Heard and Johnny Depp that may finally end their legal battle, as well as charges brought against the father of the alleged Highland Park shooter after sponsoring his son's gun license. And finally, the conviction of Harvey Weinstein on three of seven possible counts in the former mogul's sexual assault trial.
Today is our last recording of 2022. So, we're very excited to have Joshua Schiffer join us, a former public defender and current private defense attorney with vast legal experience trying cases from municipal courts all the way through all stages of the federal system. Joshua, welcome back. Good to see you again.
Joshua Schiffer:
[00:01:26]
Great to see you, too. And thank you for the honor of the invitation, especially on a week where so much is going on. It is all getting packed in here at the end of the year.
Joshua Ritter:
[00:01:35]
It is funny how it seems like everything just kind of closed itself out right at the last couple of weeks of the year. So, we're very glad to have you because I know you've been following these cases very closely. So let's jump right in.
First, we go to Fort Worth, Texas, where a jury has sentenced former Fort Worth police officer Aaron Dean to more than 11 years in prison following his conviction for the 2019 shooting of Atatiana Jefferson. Aaron Dean faced a maximum of 20 years after being convicted on the lesser charge of manslaughter. The sentence comes nearly three years after the tragic shooting in which Dean and a fellow officer arrived at a residence at a non-emergency call regarding an open door. Neither officer announced their presence upon arriving and Dean fired the fatal shot that killed Jefferson in limited visibility.
Though Dean claimed self-defense as Jefferson was armed, it was disputed if the gun in Jefferson's possession was visible to either of the responding officers. Victim impact statements were given following the announcement of Dean's prison sentence of 11 years, 10 months and 12 days.
Josh, jump right in. First of all, I want to get your reaction to both the verdict and the sentence in this case. What do you think? Was justice served here?
Joshua Schiffer:
[00:02:52]
Man, it's there's so much in this because there are so many different perspectives for analysis, but I'm going to start off really with the criminal process because that's what everybody cares about. Is the conviction valid? Yeah. There was absolutely enough evidence presented. I watched a substantial amount of this trial, the testimony of the defendant. There was a lot of evidence presented. The jury was charged properly. I didn't see any giant red flags showing, oh, there's a problem here.
So, the jury's verdict is valid. And I think it's appropriate considering the evidence that they saw. I think that there's a lot of other issues that could have been dealt with differently during the trial. And certainly, the externalities of politics, local and national weighed heavily on this process, but the actual mechanics of the trial looked clean to me, verdict looked clean to me. And I believe that there will be a pretty solid appeal, but it looks good. It's going to stand.
Joshua Ritter:
[00:03:57]
Yeah, Texas is different, and I don't know if this is across all jurisdictions there. Pardon me. But it was interesting to me because I'm not used to it to see that the penalty phase or the punishment phase, they call it in Texas, is left up to the jurors. And so, the same jury that convicted him sits during this phase where they hear kind of mitigating and aggravating circumstances and then arrive at the sentence. So, this sentence of 11 plus years came from that same jury. What are your thoughts on one, do you think that's a fair sentence? And again, I know I'm trying to get you to answer really tough question here, but two, just the idea of jurors sentencing folks, because I'm not used to it. And at first blush, it's kind of scared me a little bit.
Joshua Schiffer:
[00:04:47]
Yeah. No, it's a very rare opportunity. Not very many states have anything like that. And in most states, like my home states and the other states I'm barred in, every single one of them exclusively leaves punishment to the judge. And there's a really strong policy reason for that. Punishment is a separate and distinct issue than culpability or guilt. And punishment can be just run up the flagpole with emotion. It's why we want dispassionate people, like judges who see the horror and trauma that is the currency in criminal defense every single day to be that steady hand when it comes to consistent sentencing across a giant system.
Trusting a jury to do that, sure. There's a lot of reasons I think that's great and it's responsible, it gives a louder voice to the people. But the risks involved, I feel, make it an inappropriate solution for sentencing issues because the jury can be manipulated so much. And that's really their purpose. It's not to enact the revenge of the community. No. They're there to judge whether a law got violated or not. And if a law was violated, then the rest of the system needs to apply the appropriate remedies, allowing emotionally charged jurors who may have an undisclosed connection that was raised during the trial or something like that. I find that to be very dangerous and leading to inconsistent sentences and the injection of a lot of politics into something that I don't think politics needs to get injected into.
The purpose of the penal system is thoroughly academically studied, disclosed, and pointed through policy. And while punishment is a portion of it, it's only a portion. There's a lot of other considerations that go into how and why our states and governments and federal government actually incarcerate people in the purpose of that incarceration.
And this allowing the jury to decide just runs afoul. It makes my spidey sense as tingle as being inappropriate, because I know that I would have leaned on jurors in very specific ways if that was going to be part of the process they were going through. Like you could almost use the ability to sentence as an inducement for a conviction. Hey, you guys really need to convict so that you get to punish them as not going to feel good and tickle your dopamine receptors and all this stuff. And that's dangerous stuff.
And then you get to this issue of this was a police shooting and every single police shooting is bad. Every single one, justified, not justified. Any example of the state using violence is a last resort, bad moment for the community at large. And here we have a cacophony of errors and a totality of the circumstances that certainly permitted a jury to find a conviction.
But at the same time, I know a lot of defense members, as well as members of law enforcement, who are up in arms about a prosecution of an officer who was upfront, who cooperated, who testified in his own defense in a very clear way about his fears and the situation that he was in, being convicted for doing his job. And a lot of law enforcement officers and defense attorneys and plaintiffs' lawyers were like, man, that officer, he was acting morally but within the bounds of not being criminal in discharging his weapon. You're never going to get away from the completely innocent death of a child, though. And the community demands that there's a remedy, demands responsibility, and demands that their leadership take action.
So, the DA's office got stuck in a really bad position. I don't think they wanted to prosecute this case. I think that there might have been some sandbagging involved with some of how the state proceeded, because traditionally they would have gone maybe a little bit harder in a few areas, maybe not. Maybe objected a little bit more and they didn't do that so there's that asterisk as well in the analysis. It would have been a very different situation had the officer been acquitted. And there's a lot of reasons to acquit him, but that would have clearly struck a dangerous tone with the community at large who's sick and tired of police shootings.
Joshua Ritter:
[00:09:36]
Yeah, such excellent points you make there. Getting back to kind of that question about the jurors playing a role in sentencing. Again, you're not used to, I'm not used to. I remember being a prosecutor, I would specifically explain that to jurors because you want them to arrive at a verdict based upon the facts and evidence before them, not with this idea of, oh, okay, well, I'm going to actually convict him, but I'm going to sentence him to something very lenient because I don't agree with what he did, but I want to play a role in how he's sentenced. And it's just a bunch of things that they should not be considering.
Joshua Schiffer:
[00:10:14]
Yeah.
Joshua Ritter:
[00:10:14]
And I agree with you that you want a judge who's seen hundreds of cases and kind of has an idea of what is the mean here? What is the right thing to do in this type of case, given the background that I have and all the other cases I've seen? The only kind of point I've heard made that I thought was an interesting kind of pushback in a defense of this was that judges sometimes are held accountable by the community. Judges have to run for re-election, that these jurors can remain anonymous, and they don't have to answer to anyone. So, they can give a sentence that they believe is free of any kind of political pressure that a judge may have. I don't know. I mean, there may be something to that. But at the same time, if they're not in any way accountable, that could lead to kind of runaway sentences like you mentioned. Yeah. So, it's -- go ahead.
Joshua Schiffer:
[00:11:15]
There's not a perfect solution because everything you just said is absolutely correct. As a lawyer, you want the jury focused on the job. What's the job, man? Listen to the evidence. Listen to the charge. Follow directions and decide whether a law got broken. That is why you're here and you shouldn't be considering punishment during the culpability determination, because if he's innocent, it doesn't matter. And just thinking about those punishments and having that analysis that you so eloquently were illustrating, that really affects the role of jurors and makes them less effective, less accurate as actual practicing jurors. You don't want someone sitting back there going, oh, I get this, he's guilty, but he ain't getting no time if I've got no time on it. That's a super valid thought process.
And by adding the punishment phase, you've expanded the role of the jury outside of what the vast majority of states do. And I think that that over time causes problems. I also want to note the big exception to this, and it's kind of nationwide is death penalty.
Joshua Ritter:
[00:12:26]
Right.
Joshua Schiffer:
[00:12:26]
The application of death penalty, as with all things death penalty, all the other rules out, they do it their way. It is very common, if not more common than not. But the jury specifically is involved in the application of death penalty because of the nature of the ultimate punishment.
Joshua Ritter:
[00:12:46]
Yeah, important distinction to note. So, thank you for bringing that up. Let's switch gears. This is a case that dominated the year, finally kind of coming to its conclusion if you want to call it that. Following a highly publicized trial in Fairfax, Virginia, Amber Heard and Johnny Depp are reportedly ending their legal battle after the parties have agreed to the terms of a settlement.
After a jury awarded Johnny Depp over $10 million in damages and Amber heard $2 million in her countersuit, Depp's attorneys are reportedly settling for only $1 million. Depp's legal team has stated that they hope this will formally close the door on this painful chapter for Mr. Depp.
The trial, which played out this year dates back to 2018 with a Washington Post op ed penned by Heard, alleging she was a survivor of domestic abuse. Though the article never mentioned him by name, Depp sued her for defamation, and she was ultimately held liable. Heard maintained that this settlement was not an admission of guilt while calling it an opportunity to emancipate myself from something I attempted to leave over six years ago on terms I can agree to, wah, wah, wah in a recent Instagram post.
Josh, I think we can both agree that this lawsuit has never been about money for Johnny Depp, yet he was awarded over $10 Million in settles for only a million. Does that say anything to you?
Joshua Schiffer:
[00:14:14]
It says that he doesn't care about money, but I already knew that. Defining the win is something that guys like you and me talk about because we're oftentimes dealing with facts that are immutable. So, you've got to figure out what your best and worst-case scenarios are, what your risk analysis looks like. And this case was absolutely the case of the year.
I can't think of any other legal issue going on considering how many big political ones also, that move the cultural needle so much because it was international, it was civil, it involved criminal issues. It had the subject of domestic violence, which the nation is rightfully focused on because it is a scourge. And how we deal with the idea of domestic violence is something that our nation and the rest of the world is really working on every day because it's changing the idea of emotional abuse, verbal abuse, physical abuse, how all that intersects in the legal system. There's a lot of unanswered questions and inability to predict what should or should not happen.
So, if we step back and talk about how winners and losers were decided in this case, I'll be right out front. Johnny Depp's team kind of mop the floor, especially now that we're months out. And I imagine in 12 more months or 48 more months, Johnny Depp will have walked away with a victory of unimaginable size. He walked away the victor in the court of public opinion and actually appears to have revived a multihundred million, if not billion-dollar career that was laying on in the gutter, gasping for breath.
Man, no one wanted to touch this guy until he availed himself of the system, deftly won the majority of what he needed to win but it was never about the money. And these million dollars, it's a set off. She owes ten, he owes two. There's a whole bunch of more uncontrollable stories and press and angles that they don't want to have to deal with, they don't have to deal with anymore. They get some privacy back. They own the narrative more. And Johnny Depp's large and in charged with all that.
And at the same time Amber Heard, and I know people just despise her. I'm not in the I hate Amber Heard camp because I believe there was enough smoke and fire about mutual abuse in this relationship that it's pretty clear to me both of these people were abusive to each other in different ways. And she has made a mark. She has a legacy. And I believe if she does the right stuff, makes the right choices, she will continue being a prominent name. She will have big channels to discuss her issues on. And I won't be surprised at all if we see her maintain a larger and larger public persona and make the money that goes along with this. She will successfully craft a recovery. In a couple of years, this will just be a cultural footnote.
Joshua Ritter:
[00:17:33]
Well, I do think it's interesting, and I agree with you,. It's never been about money, but I do think it was interesting. It's almost as if this is another win for Depp in the sense that he could say this was never about money. You imagine if they drag this out and he was trying to squeeze every last dime out of her. But from a P.R. perspective, it looks like he's even gracious in victory to allow this to settle.
But there's something to me about it being a million bucks that still says, but I may be settling this, and I may be giving you a break, but a million dollars is a win any way you look at it. And I think whoever made that decision on his team or the team as a whole made a great decision there.
I wanted to ask you, though, something else about Heard and the comments that she has made since then. She's been very critical of the U.S. legal system. She said in her statement on Monday that she had lost faith in the American legal system, noting that in the UK, she was "protected" from having to give the worst moments of my testimony in front of the world's media. Comparing the two trials, Heard went on to say that in the U.S., my unprotected testimony served as entertainment and social media fodder. I was exposed to a type of humiliation I simply cannot relive.
What are your thoughts on this? She's taking kind of pot shots at the American system here saying that she was unprotected in her testimony. What do you make of all this?
Joshua Schiffer:
[00:19:04]
She makes a very valid point. But you and I would agree that lawyers regularly, as their career evolve, their view of how well-efficient, effective our legal system, and it changes. And most of the time, it changes for the worse because we've been exposed to something that didn't fit right and violates our traditional norms of fairness and justice. But the system is what the system is, and it's an aspirational system that's theoretically always getting better by precedents and doing stuff and researching, and we all reach to be a better system.
Lots of places have a better system where Amber Heard's case would not have been put in the press. The selection of the site of this trial had to deal with the fact that it was going to be available for the media to cover. And I'm a lawyer first, but I'm a member of the media as well, like you. We can only cover and talk about what we have information of. And there are court programs and systems that would absolutely have prevented everyone from learning about this case, ostensibly to protect the integrity of the system as well as the privacy of victims.
Same time, Sixth Amendment stuff, confrontation. You got the First Amendment stuff about freedoms. You've got the open, the necessity of sunlight and open operations for an effective due process. And if the public isn't allowed to observe the courts, we will subject ourselves to deep abuse. Any time you've got a private secret system, you're going to get somebody that pushes the bounds and abuses it.
So, she makes good points. Britain has apparently a more protective system for her particular claim at that point. There are several states that would have done the same. The federal system would have done the same. So, her complaints about publicity have to be directed more appropriately at Virginia, where it was calculated. This is where it was going to be tried, because that's the site where the publishing computers of the op ed were located.
And so, civil procedure ruled there. And I understand the concurrent victimization that happens any time a victim stands up for anything. I'm also going to say this was a civil case and not a criminal case. Criminal victims in the criminal justice system are afforded a lot more rights than people who are civil litigants.
Joshua Ritter:
[00:21:43]
I'm going to push back on you a little bit. And I appreciate everything you just said, but I agree with you. First of all, that there were a lot of evidence of kind of mutual abuse in this relationship here. And certainly, we don't want to be doing anything that would discourage people who are victims of abuse from coming forward.
But there is something to be said about having your accuser take the stand, and if you're going to say everything that you said and you're not going to be able to back it up and you're not going to be able to prove it and you're going to withstand the crucible of cross examination, I want everybody to see that. And I think that's exactly what Johnny Depp got out of this. Putting that million dollars aside, it wasn't so much that she won or lost the case, it was to me how she performed on the stand, because you had the whole country watching. And I think the vast majority of the country agrees she wasn't believable in a large part of what she was testifying to.
And so, if she's talking about, well, I got away with all that BS in the UK because they didn't broadcast it all over the media. And now she's claiming boo hoo because the whole country got to watch her nonsense. That to me is a criticism that is unwelcome for Miss Heard against the American system because part of what makes this system great, I think, is the idea that we do have the media in there and the press and maybe cameras you could go back and forth on, on having them and live broadcasting it. But the idea that the people were able to see her actual accusations and how they withstood or didn't withstand cross examination, I think was important. So, I take her crocodile tears with a little grain of salt.
Joshua Schiffer:
[00:23:27]
I find that every time she opens her mouth, she's showing why she should be paid less attention to because of the unforced errors and kind of thoughtless things that have come out about a system that affects all of us. And I think that she got chewed up pretty solidly and is dealing with that because accountability is real. And you're right. Her testimony, I remember it's hard to forget it. The flow of people going, are you kidding me? This is so obviously manufactured, contrived practice. It is like a movie that is being done in court.
That's why we have open court. It is the importance of being able to really feel truthfulness. It's why the transcript and an appeal is never as good as real testimony because there's only the way we communicate. We have verbal, we have oral and audio, we have visual, we have touch. You can only sense some things by really watching someone and arguably watching them through the screen is another bear that gets to the confrontation issue in criminal cases where there's big questions about virtual proceedings.
And I've objected to certain kinds of virtual proceedings and there have been court rulings that certain kinds of virtual proceedings just can't happen because of the uniqueness of creation. You are a person. There's a vast difference that is irreplaceable between being in person together and looking you square in the eyes and anything else.
Joshua Ritter:
[00:25:11]
Yeah. Well, fascinating case any way you look at it. Well, let's turn to another case that I think presents some really interesting and novel criminal questions. We're talking about Robert Crimo Jr, the father of the suspected Highland Park shooter, was charged with seven felony counts of reckless conduct on December 16th. These charges are a response to Robert Crimo sponsoring his then 19-year-old son's application for a gun license.
According to prosecutors, Crimo helped his son, Robert Bobby Crimo III secure weapons despite the 21-year-old's history of mental illness and threats of violence. In the state of Illinois, 18, 19 and 20-year-olds may only own a firearm owner's identification card with parental sponsorship. Robert's son, Crimo, has been charged with 21 first degree murder counts, 48 counts of attempted murder and 48 counts of aggravated battery for the attack.
All right. Josh, in bringing these charges, State's Attorney Eric Rinehart said parents and guardians are in the best position to decide whether teenagers should have a weapon. In this case, the system failed when Robert Crimo Jr sponsored his son. He knew what he knew, and he signed the form anyways. Tell us what's going on here. What are your thoughts about the theory of criminal liability?
Joshua Schiffer:
[00:26:36]
This is the most fascinating part of this case, and I'm very blessed that I know many of the lawyers involved with this and have followed it from the beginning, having trained and work with them before. The charge against the young men who's the shooter, tragic, horrible. Pretty straightforward, I don't think that there's going to be a lot of defense unless this goes the death penalty route.
And I won't be surprised, following some other recent major crimes, if he takes a plea so early in the process as to dull the threats and the exposure of going through a trial process. He's done, he knows it. So therefore, what more justice can be done? And the DA sat back and said, hey, the issue is not guns, right? It's access to guns. So, let's look at access to gun issues in this case. And what do they find? They find a loving parent and you can critique him and the wife for their parenting skills, but a parent who knew about stuff yet still made the affirmative choice to sponsor the otherwise legal acquisition of a long rifle on behalf of the son.
And as for liability, I can argue both sides of that really effectively, in how that case is presented is going to go from coast to coast when it comes to the evolving issue of firearms liability, both criminally and civilly, which a lot of people don't think about the civil angle on firearms. If there were more civil remedies, such as the ability to sue, chase people for access issues, a lot of people indicate gun violence and gun ownership and loose guns and things like that would be dramatically affected. So, this is a giant case in how that evolution is going to take place.
And the state's got a pretty straightforward argument and they're going to convince or work to convince a jury that the mere act of sponsorship was reckless with these predicate issues that they and only they would have known about. And by signing that sponsorship, they were taking responsibility for putting a firearm in this young man's hands and therefore are culpable criminally and civilly for the damages he did. And I think that has a really strong logical pathway how the court instructs the jury and what the pretrial motions are, are going to be very determinative and guaranteed if there is a conviction.
This goes gets appealed all the way to the top because recklessness is the standard they're going to be working with. Luckily, recklessness has been litigated millions of times in our nation, but it's the recklessness combined with firearms that's going to send a lot of people into the realm of public opinion, talking about how this is a Second Amendment issue, and this is a chill on gun ownership or is this the only way we're going to be able to regulate firearms which are constitutionally protected? And do we need to regulate firearm ownership more by doing these civil and criminal liabilities for what happens with that firearm after you've acquired it or allowed somebody else to acquire it? Because that clawing back for criminal liability, big threat, really powerful but also could be abused and be really unfair at the same time.
Joshua Ritter:
[00:30:18]
Yeah, it's a really fascinating question legally and it's hard to kind of discuss this against the backdrop of this horrible, horrible tragedy and loss of life.
Joshua Schiffer:
[00:30:32]
Awful.
Joshua Ritter:
[00:30:33]
But it does present kind of just from a purely scholastic point of view, really interesting questions. And listen, I completely sympathize and understand with the frustration of any time something like this happens, we keep on going. Where can we stop this? At what point, how many steps back can we go to make sure that we prevent something like this from happening again?
And so in this instance, it's not a surprise to me that a target is, well, how did he get the gun? Are you telling me somebody had to sign off? Are you telling me the same person who signed off on him getting the permit to purchase the gun knew that he had mental problems, knew that he had threatened people's lives before and still signed off on that. I get all of that, but it still doesn't sit well with me, not from a civil perspective, because I understand where you can go with that. But from a criminal perspective, it doesn't sit well with me to say a crime was committed in what is otherwise a legal thing that the father was doing. Right. Signing a document, no one's saying he was illegal in doing that. They're saying that because of how this ended up, you committed recklessness. And it just -- I feel it presents all this and I hate this kind of slippery slope type of argument, but it presents all these problems with at what point do I separate myself from another person's very independent actions?
Joshua Schiffer:
[00:31:57]
And you nailed it. Yeah.
Joshua Ritter:
[00:31:59]
We talked about this a lot with the Ethan Crumbley case, the Oxford school shooter where his parents in that case were charged with involuntary manslaughter. Not even recklessness or whatever the charges are here in Illinois but holding them responsible to in some way for those deaths. Talk about that. What do you think the difference was there? Are we getting to this world where parents are going to have to worry about the liability of independent people? I realize they're their children, but they are -- carry around their own brain in their head and make their own decisions. At what point do you say that that can't extend to criminal liability?
Joshua Schiffer:
[00:32:42]
Really, let's take the parent-child relationship out of it and step back one more layer and say, under what circumstances could someone do something that would then make you guilty having nothing to do with the actual act? Stepping far away, not present, could then make you guilty or criminally liable for their actions, and that it gets into the trustworthiness and the sponsorship issue and the permission issue.
We go over to civil law and very clearly, if you promise to pay the debt on a cosign, that liability is clear, if they don't pay and you're the cosigner, you're going to pay so you can share liability. Clearly, contractually, what about criminal? And this is a firearm. What happens if it's a car? Hey, you didn't buy your kid a four-cylinder econobox, you bought them an electric 0-60 and three second super car and they cause direct that killed somebody. Are you -- where's the logical connection, the nexus, terrible lawyer word, the nexus of proximate cause and connection between operating a vehicle and murder, killing someone with it and then buying the person gift.
Same with the firearm. We know firearms are ultrahazardous instrumentalities. Another pretty key concept that a lot of people don't ever consider. Firearms are meant to be deadly. They are meant to cause harm. I can't ever get away from that. So, we treat certain things differently when we've disclosed them as being ultrahazardous instrumentalities. But is that just firearms and bomb making equipment, or does that stretch down to cars or knives or brick? And it gets pretty ridiculous. Speaking of slippery slopes, I think that the state, though, is going to do really well, focusing on the knowledge, prior knowledge of existing risks that were ignored specifically by dad and proving the recklessness standard.
Joshua Ritter:
[00:34:59]
I've been trying to find a analogy, and you made me just kind of think of it when you talked about vehicles. We have seen cases in the past where if you're a bartender and you overserve someone obviously, and you know that you've overserved that person and that person walks away and you know they're getting into their vehicle and going to drive home, that you do carry some certainly civil liability. And there have been cases of criminal liability that extend to that person overserving someone knowingly.
But this is a little bit different. This to me is like buying a vehicle for you, for someone that you know has a drinking problem. So, you're not -- if the father had put the gun in the hands of this young man while he was in the midst of a mental breakdown saying he was going to kill people, you're not going to hear any quarrel from me.
Joshua Schiffer:
[00:35:49]
Yeah.
Joshua Ritter:
[00:35:49]
But this idea of this person was had a predisposition to perhaps violence, but no immediate, the breakdowns that he had had were in the past was my understanding. So it's, to me again, it's that analogy of, you know this person may have a predisposition for a drinking problem. Are you liable if you buy them the vehicle because that they then go out and drink and kill someone? I'm not saying we need an answer to that right now, but that's the best kind of working analogy I can think of. And you're really beginning to stretch the limits of that, like you say, nexus in what did they do that then led to the death of these people and why should they be held criminally liable?
Joshua Schiffer:
[00:36:37]
Yeah, that causal connection is really a struggle because everybody can see how that could just result in ridiculous conclusions and ridiculous results, which we want to avoid. But at the same time, there's a demand that if you're doing something that fits reckless, that then causes harm to others, that wouldn't have happened had you not taken whatever your action is, there's a criminal issue there.
I think that legislative drafting is going to be the solution to this, but that's only going to happen after these cases are tried and we see how the public reacts to it, that there are so many potential issues moving forward with firearms acquisitions, state to state differences. You talk about sponsoring someone for a firearm under the age of 21. And in some states, they'll go, what do you mean, you can't give anybody under 21 this versus other states who are like, why would you put such a ridiculous barrier in front of an 18-year-old? And really, the diversity of valid perspectives matters. And it'll be interesting to see how liability attaches. Lots of insurance companies looking at that, because if we're moving towards using the civil liability remedies as a big part of the gun problem in America, that's billions, if not trillions of dollars in economic activity, that's going to get considered.
Joshua Ritter:
[00:38:12]
Yeah. Like I said, fascinating stuff. It's awful that we only consider these questions in these types of horrible, horrible cases. But we'll continue to watch this and see how it plays out, because it is going to have a huge impact on the landscape of the law.
Now, we're going to turn to a clay case that we've been following for a while. We're finally able to close out the year after 41 hours of deliberation. A jury has convicted former Hollywood mogul Harvey Weinstein of rape and sexual assault in his Los Angeles trial. Weinstein was ultimately convicted on three of the seven counts he face with all the convicted charges related to one of his accusers, known only as Jane Doe one, who alleged an assault she suffered by Weinstein in a Beverly Hills hotel in 2013.
Weinstein was also acquitted of one count of sexual battery alleged by a massage therapist. The jury was hung on counts of rape, sexual battery, enforceable oral copulation alleged by two other women, one of whom was Jennifer Siebel Newsom.
On Tuesday, Los Angeles Superior Court Judge Lisa Lench declared a mistrial on the remaining issue of sentencing enhancements after the jury reported it could not agree on special allegations that Weinstein planned his assault on the model actor in 2013 and whether she was "particularly vulnerable". Weinstein will now face 18 years in prison for the conviction. In this case, this is in addition to the 23-year sentence he is already serving in his New York conviction. That case is currently under appeal. What do you make of this? Because this was kind of a mixed bag of verdict here. What were your thoughts on this?
Joshua Schiffer:
[00:39:59]
I come from this from a lot of perspective, so I'm going to run through a couple of things really fast. First of all, I blame the DA for being not necessarily the most responsible elected official with the limited law enforcement assets, especially in a jurisdiction as crowded as L.A., something you know a lot about. There are a lot of crimes that don't get attention because of the lack of resources.
And this mentally high-profile person certainly want to honor the victims, 41 hours of just juror. The amount of money that got spent prosecuting this broken down, previously convicted, virtually guaranteed to die in prison, sex criminal. I don't weigh that conviction value as heavily as the DA obviously did, and that's critique number one.
Critique number two was trying to go apparently too aggressive with the facts because a jury, even after hearing about the prior conviction, even after hearing the multiple repeated similar allegations, it wasn't enough. And if it's not enough, man, somebody messed up in the evaluation of how to bring this case forward at the beginning. Because if you've got stronger facts and weaker facts, one of the hardest things to do as a prosecutor, you know this, is not pursue charges that you're pretty sure you could win but focus on the ones you know you're going to win.
Go get the justice you can, not necessarily the justice you want or is aspirational. Go get the convictions you can in an efficient and responsible manner. That didn't happen here. That might have to do with the fact that Mr. Weinstein has excellent defense counsel and they really put the state under the gun with some of these allegations, clearly was effective in splitting the jury on many of them to create a hung result and then the absolute acquittal on others. Those witnesses were not viewed as being reliable and their testimony was discarded by a jury.
DA's office needs to figure out who was in charge of that and go reconsider some things because they made the wrong call, caused enormous additional trauma to these victims who have now been victimized again. They went out there, Harry carried themselves in front of the whole world. And for what? Like, yes, he's going to die in prison still, but that personal justice I really worry about.
I appreciate a jury being willing to be open, considering how much evidence there was of Mr. Weinstein's criminal behavior. And I think that the conviction is going to stand. It's kind of now everybody just standing around going, all right, are we going to keep working these issues, fighting, trying to do the right or are we all just going to realize that this problem is going to solve itself unfortunately, due to the decline of Mr. Weinstein's health.
And I believe in compassion and even for awful people, I will say that repentance and forgiveness happens in your life before you die. And I believe that that's between Mr. Weinstein and his maker, because the people of America, mostly in New York, going to make sure he doesn't enjoy freedom ever before he meets that maker, but very troublesome to see how this went through.
Proud that more victims, men and women, are going to have the confidence to move forward while also at the same time, we're going to be talking about these high-profile cases in defending our own clients forever and ever. I've already started using Amber Heard in arguments. I'm going to be using Weinstein in arguments because they're culturally relevant and as a touchstone that other people know about, I can then attach to their emotional connection and use that to promote whatever I'm advocating for at that time. Same with Johnny Depp. They're all players in the drama that are my cases.
Joshua Ritter:
[00:44:26]
Yeah. The thing that struck me is how these this jury proved me wrong because I had been looking at this case and I am so used to never seeing a case involving sexual assault that doesn't involve more than one victim. And the reason for that is that one of the most powerful tools that they have here in California at least, and I'm curious if they have similar in Georgia, but you can argue propensity in these types of cases where is in normal character evidence, you cannot say, listen, this guy committed a liquor store robbery before. Therefore, you should believe he's the type of person who likes to rob people. Therefore, he committed this armed robbery outside of a bank on this date that you can't argue that, you can't argue character evidence.
But in California, in sexual assault cases, you can. You can say listen, this person committed sexual assaults in the past. You're hearing from someone who's uncharged, but they're going to tell you that it happened to them. And therefore, you can believe he's the type of person has the character to commit these types of crimes and believe that he committed this crime here.
And so, that's why in my jurisdiction, you see almost every single case involving sexual assault, it involves more than one victim so that they can make that kind of powerful argument. And I thought, okay, they've got four victims here who are going to testify, plus another uncharged person who testified. And it's just going to be a pile on and they're going to cross corroborate themselves and they're just going to convict this man.
And this jury proved me completely wrong because the same jury who voted unanimously to convict him of one accuser, all 12 of those people also voted unanimously to find him not guilty on another person. And then some of them were half and half on two of the others. So, they made these very independent assessments of each victim and didn't allow that kind of crossover effect, which I found to be remarkable and I found to demonstrate this jury to be very conscientious.
One thing I wanted to ask you about, Josh, is that according to reports, the jurors had made a point of saying that they put a lot of weight on the conduct. And this kind of separates, if you followed this case closely, the first Jane Doe from the others, because she never had contact with him again. And they talked a lot about their conduct after these alleged incidents where they did have contact with him again. Especially going down to Miss Newsome, who apparently emailed him asking for favors from him, and they made a lot about that.
What do you think that says as far as, one, if you want to just keep it to this case or two, in general, people being able to just assess what they expect it should be the behavior of a person who may have suffered an attack and how they expect them to act and how they expect they would not act?
Joshua Schiffer:
[00:47:24]
Man, so many awesome issues in that. So first of all, you've got the power of corroboration. And you're right, you get multiple sets of allegations that are similar. It should be, and most of the time is, just a layup for the state. Same in the Masterson case, which had similar multiple pile on, and the original Weinstein case. In Georgia, we have similar transaction analysis, and we have a set of rules like most states where you go by the alleged character issues and a judge is going to determine their relevance when it comes to where this case goes and how the jury -- I agree that jury was very conscientious, very thoughtful and very cynical. And I think that that's a theme that we see more and more of.
People are less trusting of institutions now than at any point in my life. And I'm in my mid-forties. It used to be that if a certain organization or if a certain agency sets up, man, that was the truth. You were not going to question some of these stakeholders. Now, we'll do jury selections and talk about the state as a state actor. And more and more people actively question the intent and actions of stakeholders than ever before. That specifically includes district attorneys. That specifically includes the witnesses that they've put together to support the cases, because every prosecution is an inherently political act, especially when you add all of the issues that were going on with Weinstein.
You've got the governor's spouse involved in this. The jury roundly rejected that roundly, would not consider a conviction for three of the four. That's very telling and informative and educational for all criminal defense prosecutors and defense attorneys, because juries can smell when someone's trying to pull something on them. And they smelled that this DA was trying to bury them in evidence of similar transactions so they just convict anything. And they were offended by that and took their time bluntly. What you want?
Joshua Ritter:
[00:49:48]
Yeah. Fascinating stuff and a fascinating way to close out the year. It has been an incredible year as far as these legal issues go. Joshua, thank you so much for coming on this week. Where can people find out more about you?
Joshua Schiffer:
[00:50:03]
I'm kind of available all over the Internet if you search Schiffer. There was a model in the '90s named Claudia Schiffer who was absolutely dropped dead gorgeous. I'm not her or related to her, but our last name is spelled the same way. So, if you Google me. But yeah, I'm on Facebook, LinkedIn, Twitter @lawyerschiff.
I also do a lot of media appearances. I'm loving my time with some of our mutual friends, Josh, over at Court TV. I regularly appear on Monday afternoons with Jack Rice and Ashley Willcott along throughout the rest of the week, and I'm findable on podcasts and other places here.
You can also always look me up at my law firm, Chanco Schiffer. We're located in Georgia, but we have another office in the U.S. Virgin Islands, and we're barred in a few other states. We do a lot of partnership work on criminal defense, civil rights, major injuries, and other complex litigation for individual people. That's our big rule. We don't represent corporations or things like that. It's people's justice.
And Josh, I want to congratulate you on a very successful year.
Joshua Ritter:
[00:51:13]
Oh, thank you.
Joshua Schiffer:
[00:51:14]
Your podcast is absolutely top quality taking off. I know that people are very fond of the news that you bring, your presentation, your guests. And thank you so much for inviting me for this special interview, Josh.
Joshua Ritter:
[00:51:29]
Oh, that's very sweet of you. Thank you so much for the kind words. I appreciate it. I'm your host, Josh Ritter. You can find me on Instagram and Twitter, @JoshuaRitterESQ. And you can find me at JoshuaRitter.com. You can find our Sidebar episodes wherever you get your podcasts. And we want to hear from you. If you've got questions or comments you'd like us to address, tweet us your questions with the hashtag #TCDSidebar. Please have a safe and happy holidays. Have a great New Year. And thank you for joining us at the True Crime Daily Sidebar.
