DNA allegedly links Lori Vallow to children’s slayings; Ed Sheeran wins lawsuit – TCD Sidebar
In this episode of True Crime Daily The Sidebar Podcast
Brian Buckmire joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss the first forensic evidence revealed in Lori Vallow’s murder trial, a jury ruling in Ed Sheeran’s favor in a copyright lawsuit, and changes that could affect Danny Masterson’s retrial on three counts of rape.
Tweet your questions for future episodes to Joshua Ritter using the hashtag #TCDSidebar.
Joshua Ritter:
[00:00:10]
Hello and welcome to The Sidebar, presented by True Crime Daily, 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 in Los Angeles and previously an LA County prosecutor for nearly a decade. You can find me on Instagram and Twitter at @JoshuaRitterESQ and at Joshuaritter.com. We are recording this on Friday, May 5th, 2023. Happy Cinco de Mayo.
In this week's episode, breaking news, a jury rules in Ed Sheeran's favor after a lawsuit alleging copyright infringement of a 1973 all time classic record. Plus, the retrial of Danny Masterson as the actor faces three allegations of rape with a couple of key differences that could influence the outcome this time around. But first, the ongoing murder trial of Lori Vallow as jurors heard testimony from a DNA analyst who alleges that DNA matching Vallow's was found on duct tape used to wrap the body of her youngest child, JJ.
Today, we are very excited to be joined by Brian Buckmire, a former Brooklyn public defender assigned to the Homicide Defense Task Force. Brian is now a legal contributor at ABC News and host on the Law & Crime Network. Brian, welcome back.
Brian Buckmire:
[00:01:26]
Thanks for having me, Josh. Always a pleasure.
Joshua Ritter:
[00:01:29]
Since the last time you've been on the show, I know a lot has changed for you. So I want you to update us on all of that, not the least of which is that you have a new book out called Come Home Safe.
Brian Buckmire:
[00:01:41]
Yes. Gave birth -- well, two things new. One being a father. But two, the book, Come Home Safe. So two new things in the world of mine, I guess. Yes. Thank you for mentioning that. I'm a new author. It is a book about the difficult conversations that parents and young people have about being safe around police officers.
After the death of Elijah McClain, my younger brother asked me how do I not become a hashtag? And I found it was interesting that people have these conversations after seeing people shot who are unarmed. So I spoke to a number of parents in the criminal justice field, created this book. And I think it reveals a lot and is a good conversation starter at the very least.
Joshua Ritter:
[00:02:23]
Absolutely. And such an important topic and important book to have. And you have a little one.
Brian Buckmire:
[00:02:30]
Yes. A nine-month-old son, Reid Buckmire named after my late grandmother. The book is great. Don't get me wrong, but fatherhood is my favorite hat to wear of all the many titles and hats that I have these days.
Joshua Ritter:
[00:02:45]
Oh, fantastic. I know one of those hats is as a legal commentator. And I know that you follow these cases that we're about to talk about today very closely. So we're excited to hear your insights.
So let's jump right in out of Boise, Idaho. In the ongoing trial of alleged doomsday killer Lori Vallow, jurors were provided a potential forensic link between Lori and her children's murderers. According to testimony from a DNA analyst, a hair was found on duct tape, which was used to wrap the body of Lori's seven-year-old son, JJ Vallow.
The hair obtained at the scene was described as a match for the DNA profile provided by Lori Vallow. The DNA analyst testified that the probability of randomly selecting a random individual in relation to that profile is 1 in 71,000,000,000. And I love this is how these DNA analysts always talk about it is what is the chances of another match? And it's these astronomical figures essentially telling the jurors this is the person.
So far in the trial, this is the first DNA evidence to be exhibited which could link Lori to the crime scene. Lori is accused of the murders of her son, JJ Vallow, who was strangled before his remains were wrapped in plastic. And Tylee Ryan, who was murdered and dismembered shortly before her 17th birthday. The children's bodies were found on the Idaho property of Vallow's fifth husband, Chad Daybell.
Jurors also heard disturbing testimony from a former friend of Vallow's who claims she was threatened by Lori after the woman attempted to end their friendship. The former friend gave emotional testimony that Vallow threatened to cut her up and bury her in a place no one would ever find her. Vallow's trial is ongoing, with the prosecution expected to end their case in chief as early as next week.
Brian, analysts have made much of this DNA evidence, this hair that has been found. How crucial do you think this is actually to the prosecution's case?
Brian Buckmire:
[00:04:48]
So to kind of answer that question, I got to explain my thoughts of this case in general, because to answer directly, I would say it's not that crucial. I mean, if we're being honest with each other, I don't know about other people in professions, but I know you and I wear suits a lot. I have a wife. Statistically speaking, if I leave the house, I have hair on me somewhere. I think anyone who works an office job is not like getting their hands dirty, so their clothes aren't getting scuffed up or whatever. Anyone who works a nice, pretty job like you and I and has a spouse that has long hair, you know you're going to find their hair.
So if you tell me that Lori Vallow Daybell's hair is found where her husband and brother probably murdered someone, I'm thinking it looks bad. But we also know how specifically women's hair operates in this kind of context.
Joshua Ritter:
[00:05:40]
I don't mean to interrupt you, but I'm so glad that you're saying this because I've been thinking this, too, that everybody keeps on talking about it like, oh, it's DNA. Yes, it is. But it's the type of DNA that we discard all over the house, like you're pointing out.
If this were a fingerprint, I think I would have a little more eye-opening response to it or something else. Like blood would also make me think, okay. But a hair, I agree with you, it's not the kind of jump out of your seat thing that some folks seem to be making of it. Sorry to interrupt. Please continue.
Brian Buckmire:
[00:06:14]
No, no, a hundred percent. But the way this case is going, it's like grain of sand by grain of sand, stick by stick, however you want to put the analogy, just a little bit more that she seems more and more guilty. And so does this one individual grain of sand make me think, oh my God, her hair is there, she must be guilty. No. But the other 40 million grains of sand that they put on beforehand and now this one more makes me just think, all right, that much more guilty.
And I think it's also, my other point would be, it's the uniqueness of this case. From day one, from what I understood in this case, and I still haven't really changed my mind, I thought to myself prosecution can't prove this case. There's no way they can affirmatively say that Lori Vallow Daybell either, one, did the crime or two, conspired and agreed with to have these crimes committed because there's no paper trail. Right.
But what a phenomenal job of is locking up every other reasonable explanation that could have happened, but that she committed these crimes. And so don't forget, the prosecution can, yes, prove their case to win, but they can also eliminate every reasonable doubt to also win. And I think they're doing that second one or even myself as a defense attorney, trying to give analysis to people being like, I wish I could find a way to beat this case as defense attorney, but I don't see a reasonable doubt to give to the jury.
Joshua Ritter:
[00:07:34]
Yeah, that's a really interesting way of putting it. And I have not heard people talk about that before. But sometimes, I've seen cases where it's not so much that the prosecution proves who done it, but they prove who else could have done it. And then you're left with the defendant.
And that's kind of the situation I think you're describing here, is that they've eliminated any other innocent explanation for her kind of behavior and knowledge and statements beforehand and afterhand that you believe that she was somehow involved. Though I agree with you, they haven't yet shown us that phone call or that text message or that piece of forensic evidence that somehow, without a doubt, proves her involvement beforehand, which is really the crux of it.
And you mentioned the defense here, and I wanted to kind of dovetail into that. What are they doing? I thought that we had kind of a clear outline from their opening statement, and it's become less clear throughout their cross-examination. What do you think they have in store? What are the arguments you expect them to make?
Brian Buckmire:
[00:08:42]
I want to give some sort of insightful, guys, my experience of doing this for almost eight, nine, almost a decade, they're going to do this. I actually think they're kind of figuring it out as it goes because I think their initial standpoint was, guys, they're not going to be able to prove this. It's reasonable doubt. Listen to the facts. We're not going to hear this. You're not going to hear that. It was what a lot of people call a non-opening opening because it didn't lay out this fantastic plan as to why their client was innocent. It just kind of really hugged the burden of proof.
And I think the reason why I say they're figuring it out not in any kind of negative connotation, because oftentimes it's like a boxing match. The prosecutor may swing and you see an opening that you didn't see there before. So you're going to swing to connect. And I think that's what they're doing.
I think the prosecution's laying their case and where the defense can see an opening. And I don't think there are a lot of them. They're trying their best to make those hits in their cross-examinations what's often seen confusing, where are you going with this? Are you searching for something that you can find? Did you not find it here or are you looking for it here? Because the cross-examination doesn't seem directed at a goal. It looks like they're looking for it.
Joshua Ritter:
[00:09:49]
Yeah. Sometimes, you have a case where there is a theory presented by the defense. It's an affirmative defense. They have their alternate narrative of what took place. And they're kind of weaving that throughout their case.
Other cases, and I think that's what you're describing in this one is it's what we call like a reasonable doubt case where they're essentially going to get up closing and say, listen, we explained this to you in voir dire. We don't have to do anything. This is on the prosecution. They carry the burden from beginning to end and they haven't proven it to you. And here's the reasons why. But they didn't reach that burden.
I don't know if that's the most convincing of closings, and I don't know if that's the most convincing. But you might be right, that might just be what they're left with. I want to turn to this other piece of evidence that came out this week, which is the friend who talked about the threat that Lori made.
And if you've heard the audio, it's unfortunate we don't have in court video of this, but if you heard the audio, it's very emotional. She's disturbed by what she's telling. This isn't some offhand comment that her friend made. You can tell that she felt troubled by it. What do you make of that? How do you think that will hit the jurors?
Brian Buckmire:
[00:11:03]
The thing that really stuck out to me, and I'm going to be interested to see if the prosecution really lays into it, it's not so much the disturbingness of the statements, it's how close they reflect what happened to JJ and Tylee. I'm going to chop you up. I'm going to light you on fire. I wrapped him up like a taco.
I mean, think about how JJ was wrapped up, right? Think about how Tylee's body was found. If I said, hey, Josh, anytime someone steps to my lady, I'm going to knock him in the mouth, right? And then five months later, you hear that I knock someone in the mouth, they're going to be like, hey, Brian, he's told us he's that kind of guy. Like, that's probably what happened.
And it seems like Lori Vallow Daybell is that kind of woman that if she's casting out spirits, the process is by chopping up, burning, and wrapping like a taco. And I think if the prosecution makes that connection, I think that's devastating for Lori.
Joshua Ritter:
[00:11:56]
Yeah. No, I agree. And I also think that we're at the point in this case where she has become so unlikable to jurors. I mean, you have a woman who's sunbathing in Hawaii while her children are allegedly still missing. I mean, it's just so heartless, her actions that I think that even these small things that might otherwise not be so impactful in a different type of case. In this case, I agree with you. I think these might be those little pushes that get them over the edge of beyond a reasonable doubt.
Let's turn to Chad Daybell for just a moment. His case is going to come up either later this year or next. And there's been reports that his defense attorneys have been watching this case closely, even being present in court for some of the testimony. What possible advantage do you think that gives them? What are they taking notes about?
Brian Buckmire:
[00:12:49]
I mean, the only analogy I can give is I played college soccer. And so if you played any sport and you were at a tournament and you knew who the next team you were going to play is playing a game on the other field or the other court, what do you do? You go and you watch. Because especially in a case like this, I think Lori Vallow Daybell's case is the circumstantial evidence case to Chad Daybell's direct evidence case.
So if they can show footprints in the sand or in the snow with Lori Vallow, then Chad Daybell's attorneys are looking for the fee because they're coming in his case. And I think what any good attorney probably is or should be doing is looking at this case, clipping whatever kind of media you can for your client, and bringing it back to your client and be like, you see, every time they mention you, you see every time they talk about your movements, this is going to be your case but on steroids. And you want to see that.
And we might not see a second trial. I could see Chad saying, hey, guys, they got Lori dead to rights. And look how they mentioned me. They've definitely got me. And so maybe there's a plea or maybe he's galvanized and says, look at all the times they mentioned Alex and Lori and not me. Maybe I can kind of thread the needle there. It can go both ways, but I think that's what they're doing.
Joshua Ritter:
[00:14:10]
Yeah. And he's got a lot to be worried about with death penalty still on the table for him. So that might be a compelling negotiating tactic with the prosecution's office. I love that analogy you made about these footprints in the sand and I'm going to steal it.
But another point I wanted to make about this, his attorneys in court and an advantage that might give them is that you and I have been doing this long enough that we've all had either prelims that have been done beforehand where we may not have been present for that testimony or even a retrial where you get the second part of a retrial. And you're going through transcripts and that is helpful to understand what people said, but there's so much different with how they actually perform on the stand.
And I'm wondering if that's a big advantage for his team to see not just what these people said, but how they responded to certain questions and cross-examination. What do you think?
Brian Buckmire:
[00:15:11]
Yeah. I would even, Josh, take it to a higher level than that. What is your personality like? How personable are they in front of the jury? Is this -- because I could read the transcript of a 23-year-old woman who witnessed a crime of my client. And I don't know that she's petite and sweet and lovely, and the whole jury loved her. And I come in hot and heavy being like, you didn't see anything and like, oh my God, this is going to look horrible.
But if I see this person on the stand, I see how this jury reacts to them, I see how they respond to questions, now I know how to speak to them in a way that doesn't make me look like the bad guy here, just trying to help my client. So there's so many strategies just to watching rather than just the transcript.
Joshua Ritter:
[00:15:56]
Yeah. A perfect example being this witness who was her friend talking. Yeah, it's awful to read. She said she would cut me up and then she said she would bury me. And then she said she would like me on fire. But to hear this woman say it through sobs and barely able to get those words out, very different thing and very different for the attorneys to know going in.
So this case, like I said, we expect it to be wrapping up soon. That's all. Not knowing what the defense is going to do. But we will continue to obviously watch it and keep an eye on it.
Now, let's turn to Manhattan, New York, with a case that I know that you have been following very closely. A Manhattan jury has found that Ed Sheeran is not liable in a lawsuit brought against the Grammy winning singer songwriter, delivering their verdict in under three hours. The lawsuit alleged that Sheeran's 2014 hit Thinking Out Loud, borrowed heavily from Marvin Gaye's Let's Get It On, released in 1973.
The plaintiff's attorney alleged that the melodic and this is a quote, "melodic, harmonic, and rhythmic compositions in Thinking Out Loud are not the product of independent creation". In stating their claim, the plaintiffs pointed to a 2014 live performance of Sheeran's, in which the singer performs a mashup of the two songs. Sheeran had maintained that Thinking Out Loud is his own creation, alleging that any harmonic similarity similarities, pardon me, are largely due to the fact that most pop songs are built on similar chords and structure.
The singer, who publicly called the lawsuit insulting, told jurors that should he lose the case, he would quit music entirely. This is not the first time the singer has faced allegations of copyright infringement. Last year, in a lawsuit surrounding the singer's 2017 hit The Shape of You, a judge ruled in favor of Sheeran awarding the songwriter over one million in legal fees.
All right, Brian. I'm going to let you just jump right in. Share with us your thoughts about this case. And what do you make of the lawsuit and the outcome?
Brian Buckmire:
[00:18:00]
All right. So this case is very unique from other copyright cases. I think it is a case of first impression because we know copyrights when it comes to lyrics. We know copyrights when it comes to entire songs or melodies, but not to four chords, because this is what this whole case is about. It's about these four chords in a specific ascending progression and the anticipation or the spaces in between them that Ed Townsend, because it's not Marvin Gaye's estate, but the co-writer of Let's Get It On is suing Ed Sheeran.
But as you eloquently put, the question is, did he copy Let's Get It On's four chords or did he independently create them? And so when you pose it that way, it's a much different than can you listen to these two songs, and can you hear similarities or did one person rip off another?
I think it was fascinating from a factual standpoint. I mean, people got a free concert from Ed Sheeran on the stand performing and explaining how he made the song. But also from a legal perspective, the idea of let's put it this way, because I love analogies and they help my brain work as well.
I can say that I copyright. I'm Jamaican, so I'm going to go jerk chicken, right? No one can make jerk chicken. I copyrighted. It's done. But I can't say that no one else is allowed to use chicken. If I go say, hey, you person making barbecue chicken, you person making teriyaki chicken, you person making like chicken from all over the world, you can't do that because I copywritten jerk chicken. You'd be like, no, I'm allowed to use the fundamental ingredient to make my meal because you can't copyright that.
But what Ed Townsend was almost saying was, hey, I raised this chicken this way. I fed it a certain ingredient. I cultivated the meat and I massaged it appropriate way. And Ed Sheeran did the exact same or came up with the exact same way of treating the chicken to get that certain taste. And that's what I want to copyright.
And it was those two arguments of can you copyright fundamental ingredients that everyone is using? Because Ed Sheeran made an amazing argument through his musicologist saying there are 101 songs with this similar chord progression, 30 of them, before Marvin Gaye even had his song. We're all using chicken just in different ways. You might have used it a certain way, but this independent ingredient, we're all cooking with it.
Joshua Ritter:
[00:20:26]
Yeah, I love that. And it does really help you wrap your mind around the kind of fundamental arguments being made here. As you were talking too, I was thinking --
Brian Buckmire:
[00:20:37]
[Inaudible] lunchtime.
Joshua Ritter:
[00:20:39]
I was thinking, too, that they talked a lot about how music only has so many parts to put together. To use your analogy, there's only so many ingredients that they can use to kind of try to create all of this wonderful world of music that we know. But to even add to that, there's only so many kind of chord progressions that sound good, right?
You can't just randomly bang keys on a piano and expect something nice to come out, but it has to kind of follow a music theory that sounds good to us. So now you've even brought that universe down to even a smaller amount of combination of ingredients for music to exist. And so my question was, had this gone the other way, what do you think this would have been the impact on the music industry?
Brian Buckmire:
[00:21:30]
So, Josh, the narrowing goes even more because you got all music and then you have that specific musical genre, which is R&B or pop, which is what Ed Sheeran fits into. And his testimony is there are 12 chords, guys. I can't use the chords from pop rock. I can't use the chords from rock and roll. That's that's not my genre. I've only got these 12 chords.
And so to answer your question, this would have opened the floodgates. This would have got to the point where people said, hey, you've got these four chords, you've got these three chords, you've got this progression, you've got the same anticipation or the space in between the notes. These are the fundamental ingredients or the chicken that you're using as well. I want to sue you.
And Sheeran said, I understand. He said he would have stopped performing. I think that was a bit of hyperbole. I think he would have continued to to perform. I think you said the date, May 5th, his album releases today. He starts a tour tomorrow, May 6th. He's got to work.
And I think this case is going to do phenomenal for him in terms of the court of public opinion. But if Ed Sheeran had lost, the idea that ingredients of a song can be copywritten and therefore you can sue other people, you and I would be rich off of covering cases like this. Let's put it that way.
Joshua Ritter:
[00:22:48]
Yeah. Yeah. Well, I'm glad that it didn't turn out that way. Do you think there's something in particular about Sheeran that attracts this kind of litigation? Because like we said, this isn't the first time. And I guess my other part of that question is what can artists do or what can the industry do to kind of prevent these? Because he went through a lot to defend himself here.
And it seems from what I'm hearing from your thoughts on it, borderline frivolous, right? I mean, it just sounds like it was really troubling this artist, when it wasn't entirely necessary because we have seen cases which are successful for this, but this is not one of them. Is there anything to be done about that or is that just too big a question for you and I?
Brian Buckmire:
[00:23:32]
I think it's a number of things. So one thing I will say, I'm not 100 percent sure that it is frivolous. I think the idea of while I may disagree that you should be able to copyright fundamental ingredients of a song, we copyright colors, right? I mean UPS brown, the magenta from the T-Mobile, we copyright colors.
So with that in mind, I don't think it's that farfetched to say that you can copyright a melody. We've just never made that argument before. It's never happened before. It just so happens that Ben Crump and Ed Townsend lost. And for me, although I am unabashedly Team Marvin Gaye, I grew up with his music. I love it. My parents were always playing it. From a legal standpoint, I don't think that we should be allowed to copyright the ingredients of a song because of the slippery slope that occurs.
So I do think it is an argument that needed to be made. And like many things in courts, we need to find an answer. I think we found the right one, but I'm not quite sure I'd say it was frivolous.
In terms of what we can do going forward, I actually would like and maybe this is just the legal nerd in me, I would love for Ben Crump to appeal this to the Second Circuit. Heck, I might love for this to go to the Supreme Court just to get a bright line rule of saying, guys, we copyright this, we don't copyright this. Musicians go and make your music. People, go and protect your product. We all know what's good.
Like, that's what I would love. I think this needs a bright line rule. I don't -- maybe the legislature gets involved. I don't know. But then you got interests and money pulling the decisions one way or another. I think a bright line rule would help out here.
Joshua Ritter:
[00:25:10]
Yeah. And just so listeners understand what we're talking about, you're talking about the difference between kind of legislation and common law and that the law comes out and says you can't take, you know, steal somebody's copyrighted intellectual property in a song. And then you have to have many, many cases decide what that actually means. And they're going to go close to the line and over the line.
And as time goes by and as these things get appealed and even go to the highest court in the land, that line becomes, like you said, more of a bright line so we have a fuller understanding. And so what you're saying, not to put words in your mouth, is you want an appeal not because you feel the judgment was wrong, but you want a more clear understanding. And I think we all deserve a more clear understanding of where that line is.
Brian Buckmire:
[00:25:59]
Yeah. Because right now, unless -- and I know one juror spoke, but unless we go and we pull all the jurors, the question becomes, did these jurors think that you cannot copyright chords? Or did this jury believe that Ed Sheeran independently created this song and therefore he did not infringe on Ed Townsend's copyright? We're not --
Joshua Ritter:
[00:26:22]
Leaving the other question open. Right.
Brian Buckmire:
[00:26:24]
So right now, we might have another case like this, without a doubt. So that's why for me, it's like even though I think we got the right, and you're not putting words in my mouth, you're completely saying the same thing. Even though I think we got the right answer, I would love, and again it's the legal nerd in me, judge, put in the ruling right there in the conclusion, what can we do with four chords?
Joshua Ritter:
[00:26:45]
Yeah, yeah. Interesting stuff. Really a case that might otherwise not be so interesting. Really kind of comes fascinating when you dig into it like you just did. So thank you for that.
Finally, we turn to Los Angeles, California, where Danny Masterson's retrial for three counts of rape is underway months after a deadlocked jury favored acquittal for the actor. Masterson faces three counts of rape by three different accusers with the alleged incidents taking place between 2001 and 2003, so many years ago.
Scientology will again be a key factor in the case, despite objections made by Masterson's defense. As a judge ruled that victim's association with the church was a relevant factor in their delayed reporting of the incidents. All three accusers were involved in the church at the time the alleged assaults occurred, with some of the victims claiming the church discouraged them from coming forward with allegations.
This time around, prosecutors will have the ability to directly tell jurors that Masterson allegedly drugged the victims before the sexual assaults. However, no additional charges have been added. These allegations were suggested by prosecutors in the first trial with multiple victims reporting in their testimony that they felt confused or disoriented after being offered drinks by Masterson.
Additionally, there may be another accuser called to testify by the prosecution who is not named in the charges but has alleged that she also was drugged by the actor at a cast party for the 2000 film Dracula.
Brian, first of all, are you surprised that prosecutors opted to retry this case, given how heavily the jurors favored acquittal the first time around? And just to remind listeners, the breakdown of the jury was 10 to 2, 8 to 4 and 7 to 5 on all three charge counts, all in favor of acquittal.
Brian Buckmire:
[00:28:40]
I'm not surprised because of who it is. Not because of the numbers we saw. Josh, you and I know if you and I got those kind of numbers, with one of our clients, after a case, or we skip it and stroll into the office looking for that offer and be like, would you go with us? Because we need to get a far better offer than we've gotten through the life of that case because those are good numbers.
But when you present Danny Masterson and I think he's like the second or third person to be accused of sexual assault during the, I think the inception of the MeToo movement, you know you're in for at least another retrial. I would not be surprised if we get a mistrial on this case that we're definitely going to probably get a third one. The only thing I'm curious about is, is it going to get convicted now or are we going to have a fourth trial? Like they're going to keep going because of who he is.
Joshua Ritter:
[00:29:31]
Yeah. Yeah. And that's understandable, but perhaps unfortunate because, I mean we keep on talking about the law applies the same way to everybody, no matter who you are. But I agree with you that in this kind of a case, with the media scrutiny and public scrutiny, the prosecutor's office is far more reluctant to just kind of let it go. Whereas if this never made headlines, who knows how it would have ended up?
But it was surprising to me to some extent, because you're also talking about putting people through this, again, taking all those victims and putting them on the stand and everything else. It's an undertaking that should not be taken lightly. And given that the first time around, I don't think they had a poor case. I think they put on about as good a case as they're going to put on.
It wasn't like, you know, sometimes in these decisions it's, oh, a witness didn't testify, they were unavailable, or they were reluctant to testify, but now we've convinced them. Or we've found new evidence or something like that. But this might be just a redo of the first trial.
Aside from some important things, which I'm now going to ask you about, this time around the judge will allow prosecutors to directly refer to the assaults as drugging. The judge will also allow another alleged victim to testify that wasn't initially allowed the first time around. And the judge has allowed references to Scientology, in regards to, the late reporting. Do you think all these rulings are the difference maker this time around, or is this kind of a redo of the last one?
Brian Buckmire:
[00:31:01]
So my thing is, for lack of a better term, this seems more like lipstick on a pig than anything else. Because to your point, did you find another victim? Is there going to be more evidence directly to the allegations? Yes, the drugging is bad, don't get me wrong.
But as a defense attorney, I say, okay, were all your symptoms the same? Is he using different drugs? Is he using same drugs? Have you ever seen him with drugs? Have you ever seen him take drugs or give drugs anyone? So you're just magically feeling this way. And now we know that you had drugs in you. What were your symptoms afterwards?
And then if you can just find an expert to be like based on what she's saying, I don't know what drugs she had taken. Then that whole drug thing blows up in your face. And does it help you overall?
The other issue that I see is and we've seen in cases for retrials, you lose the first one. The judge gives you a good ruling where you're able to get stuff that you weren't able to get in the first trial because the argument was made. But you get to the second trial. Now you convict the person. Now you give the defense attorney the best argument at appeal and saying, I know exactly what is prejudicial, Your Honor. How do I know that? Because when we made the arguments and won the ruling and this evidence didn't come in, not only was it a hung jury, but it was 10 to 2, 8 to 4, 7 to 5 to acquit.
But then once this other judge allowed for all this prejudicial stuff that she originally or he originally said that was not allowed, you got a conviction. Surprise, surprise. What do you think is prejudicial here? Not a winning appeal. And that's why I think are we looking at a third trial or a fourth trial? What are we going to do here, guys?
Joshua Ritter:
[00:32:46]
Yeah, really excellent point. And to add to that, this is the same judge. It's the same judge who made those rulings the first time around and then now is making different rulings this time around. My question on appeal would be, what changed? What exactly changed? I'll tell you what changed is we wanted to push this over the edge, and now we did. And here's why I'm appealing. You're right. Well, we'll see. We'll see how this ends up.
We talked a little bit about this before, but let's talk about the perhaps advantage for the defense in a retrial and that, again, this defense attorney, same Defense Attorney Phil Cohen, is going to be cross-examining the same people. He knows their answers. He knows how they responded the first time around. He's now got transcripts from two prior prelims and prior trials and everything else. Do you think that's enough ammunition for a defense attorney, a skilled defense attorney, to really do some damage in cross?
Brian Buckmire:
[00:33:50]
I think it's additional ammunition because in any case where there's no video surveillance, it's all from memory, especially from a long time ago, your greatest tool is impeachment. And if you said it once under oath and the second time under oath and a third time under oath, and I'm here for you for the fourth time. Oh my gosh, Every discrepancy that you have between those four variations, I'm going to drive a Mack Truck between them and show the inconsistencies, because that's my argument that these are inconsistent stories and that you can't believe them to be true.
The downside, though, what I believe is a defense attorney's greatest tool is the art of surprise. You can pluck out something that the prosecutor didn't foresee, point to it as being reasonable doubt. And you can win. I've told people I have won more cases on surprises that I probably would not win a second time around because the prosecutor would be able to find out my argument, combat it with something, and then I'm left there without my whole razzle. Do you think that if they knew that the glove for O.J. didn't fit that to put it on a second time?
Joshua Ritter:
[00:34:59]
Right.
Brian Buckmire:
[00:35:00]
No.
Joshua Ritter:
[00:35:01]
Yeah.
Brian Buckmire:
[00:35:02]
And that's the point that was brought up to me. Like there's an advantage and there's a disadvantage. From what I understand, I think Shawn Holley, speaking of O.J., is joining the team. And so one advantage that I think, I'm sorry to bring gender into it, I'm sorry to bring, it might not be the most politically correct.
It is very different optically for a man to cross-examine a woman zealously who has been, whether you want to call her an alleged victim or an actual victim of sexual harassment. Those optics and that tightrope to walk is difficult. But if you get a seasoned, and famous even, female attorney to do it, it is perceptively and oftentimes practically a lot better for the defense attorney. And that, I think, is an advantage.
Joshua Ritter:
[00:35:47]
Yeah. And that was my last question. So I'm glad that you got to it. They did bring on Shawn Holley, who is a, if you want to call her celebrity attorney, who had become kind of famous for her connection to the O.J. case. She's now a defense attorney here in Los Angeles who handles a lot of high-profile clients. She was brought on to this case which some might have viewed as, boy, Masterson's really starting to panic if he's beefing up his defense for the second time around.
But I agree with you. I think there was a strategic decision made here as far as optics, maybe optics alone, not to take anything away from Shawn Holley and her skills as an attorney. But if you're a man accused of raping a woman and on your side of the table is you and your male defense attorney and you two going up against three female victims, that's a real tightrope act for a defense attorney to do to handle that appropriately where one, you can zealously advocate for your client. And two, at the same time come across as not trying to revictimize someone even. I mean, have you ever had to deal with this in your practice? And what are your thoughts on how that can be handled?
Brian Buckmire:
[00:37:08]
So you can't tell from sitting down. I'm a 6"4, 225 pound, black man. If I'm going to trial. And there's even a hint that I would have to zealously and aggressively cross-examine even someone smaller than me, regardless of gender, I'm sure, get a woman and a small woman because -- and I know it sounds bad to say out loud, but it's true. If you say I'm a big, gregarious, fun, loving guy, you're more likely to get a hug and a drink from me than anything else.
But if I turn around and I raise my voice at someone, an entire room of people will turn and be frightened because this giant person is yelling. And sometimes I have to yell for my client because the officer I'm accusing him of planting a drug, because the mother of his children, I'm accusing her of faking text messages to try to get my guy locked up when he's just trying to see his son.
I'm screaming at a female officer for improperly searching my client. There are times that I have to yell, but I don't think that 12 people on a jury are going to like me, this large, imposing person yelling at this small person. But if I know this person is a big, burly, like 600-pound, big, white captain or black captain or Hispanic or whatever, I'll go toe to toe with them. People are fine with me yelling at a guy my size. And so you've got to think about both the performance and the law when you're doing these things.
Joshua Ritter:
[00:38:35]
A hundred percent. And that is, I'm reluctant to talk about the courtroom being theater, but I don't mean that in a pejorative sense. It's in the sense that you've got to be cognizant of that you have an audience and 12 jurors. And that they are listening to what you're saying, but they're also watching how you're saying it and they're watching how you behave and they're watching the dynamic between your size and the size of the person on the witness stand. And they're making little micro judgments all along the way. And you have to be cognizant of that or you're going to fail as a trial attorney if all you're thinking about is just you and the witness and nobody else in the courtroom.
Brian, this has been an absolute pleasure. Thank you so much for coming on this week. Where can people find more about you and where can they find your book?
Brian Buckmire:
[00:39:23]
Yeah. So I'm on Twitter and Instagram at @the, T-H-E, buck, B-U-C-K, ESQ, like @thebuckesquire. I'm always posting clips there from Nightline. You'll see me on Good Morning America, if you're watching Good Morning America, Nightline. And also, of course, Law & Crime.
And the book Come Home Safe is available on Amazon, Barnes and Nobles, wherever you may get books either online. There's also an audiobook as well if you want to just listen to it. I think it's about a four and a half, five hour listen. So it's just perfect for a long trip. But thank you so much. I love talking law with you.
Joshua Ritter:
[00:40:01]
Oh, absolutely. And I'm your host, Josh Ritter. You can find me on Instagram and Twitter at @JoshuaRitterESQ or check me out 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. And thank you for joining us at The True Crime Daily Sidebar.
