Velasquez out on bail; New Masterson accuser; Weinstein’s defense takes bold approach – TCD Sidebar (Copy)
In this episode of True Crime Daily The Sidebar Podcast
Gene Rossi joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss a judge granting Cain Velasquez bond, an aspiring country singer receiving no jail time after shooting a man suffering from homelessness, a fourth accuser brought to testify in Danny Masterson’s sexual assault trial, and a questionable tactic employed by Weinstein’s defense team.
Tweet your questions for future episodes to Joshua Ritter using the hashtag #TCDSidebar.
Joshua Ritter:
[0:00:11]
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 Thursday, November 10th, 2022.
In this week's episode, former UFC star Cain Velasquez has finally been granted bond after nearly eight months in jail. Plus, an aspiring country artist avoids jail time after shooting an unarmed homeless man. As well as testimony from a fourth woman accusing Danny Masterson of rape and an unexpected development that could spell real trouble for his defense. And finally, a bizarre tactic employed by Harvey Weinstein's defense in their cross examination of a witness.
Today, we are delighted to be joined by Gene Rossi, a former federal prosecutor, a criminal and civil litigator with nearly three decades of experience and a legal analyst, you can catch on the Law and Crime Network. Welcome, Gene.
Gene Rossi:
[0:01:18]
Well, thanks for having me.
Joshua Ritter:
[0:01:20]
Before we jump in, I was hoping you could give us a little bit about your background and your current practice today.
Gene Rossi:
[0:01:27]
Well, on June 12, 1989, I took the oath, and I became a federal prosecutor with the U.S. Department of Justice. And from June of ’89 until July of 2016, 27 years plus, I was a federal prosecutor. My first few years, I did a civil tax cases which sounds very boring and a little bit of bankruptcy.
But after that for five years, I then went into criminal prosecutions and ended up being an assistant U.S. Attorney in the Eastern District of Virginia, also proudly known as the rocket docket. And had about 110 trials and I'm still trying to find somebody who worked at the Department of Justice that had more trials than I did.
Joshua Ritter:
[0:02:18]
Wow. Wow. No, that is as far as – and explain this to people a little bit. In the U.S. Attorney's Office, they are not doing a bunch of trials. It's about one a year on a pretty good pace, right?
Gene Rossi:
[0:02:33]
All right. You threw a softball at me. If you work in the U.S. Attorney's Office in D.C., you know, D.C. Superior Court is basically a state court. You’re a state prosecutor with the title of assistant U.S. attorney. And you'll have a lot of trials there, a lot of misdemeanors but several felonies.
But the average U.S. attorney, assistant U.S. attorney, the other 93 U.S. attorney's offices, on average, for every 20 years of being an AUSA, I would say on average they probably have 15 to 20 trials. You just don't have that many. The ones you do have may be bigger, but you don't get a lot of trials. I had people in my old office in Virginia EDDA, they would go four or five years without a trial and then you would have a big one. So, it’s a lot different.
Joshua Ritter:
[0:03:33]
We appreciate you coming on the show because we're going to dive into that vast amount of experience of yours to talk about some of these cases. So, let's jump right in. First out of San Jose, California. After eight months in custody, former UFC heavyweight champion Cain Velasquez has been granted bail at $1,000,000.
Velasquez has pleaded not guilty to attempted murder and other gun related charges after engaging Harry Goularte an 11-mile chase through the streets of San Jose as he fired into Goularte ’s truck. Goularte had been charged with inappropriate sexual contact with children, including Velasquez’ 4-year-old son, but was released by a judge only two days later. When Velasquez saw Goularte the next day, he was shocked according to court filings, which prompted Velasquez alleged attack on Goularte.
A judge had previously denied Velasquez’ bond on four separate occasions. As a condition of his release, Velasquez must wear a GPS tracker and stay away from the alleged victim, Goularte and his family members.
Gene, talk to us about the bail situation here. Do you think the judge had it right to begin with in setting no bail or was that inappropriate? And I guess the reason I'm asking that is if you could explain to us kind of the concerns about the threat to the safety of the community given the allegations of him, you know, in this 11-mile chase and firing a weapon and everything else.
Gene Rossi:
[0:04:59]
Right. At the federal system and most state systems, when you are asking for detention or making a recommendation on bail or bond, in any criminal case, you look at two things. You look at risk of flight and you look at danger to the community. And risk of flight is, are they going to show up at future proceedings, including their own trial? Danger to the community is, what are the personal characteristics and the background with this individual so that if I will resend, is he a danger to the community?
And this gets into the weeds. The prosecutor has the burden of preponderance 51 percent for risk of flight and has the burden of proof of clear and convincing about 70 percent for danger to the community. So, for any defendant, those are the two things you look at. You may not have one. You may not have both.
But for this case to impose no bail, that means the judge has determined you are a risk of flight and or a danger to the community. And I'm not even going to allow you to put up one million, two million, 10 percent to security, you are detained. And in my experience, for the low hanging through the misdemeanors or the non-violent felonies like failure to file tax return, you're probably going to get bail or bond without any security, could be personal recognizances, I give my word to show up. But for something like this, because it was such an alleged violent occurrence in the background of the defendant may give the judge pause, that's why no bail was imposed for a steep steep hurdle for him, like one or two million fully secured.
Joshua Ritter:
[0:06:51]
Yeah, I mean it is pretty incredible. Yes, it – what is being alleged sounds really dangerous to the community if you're firing at someone kind of indiscriminately, you know, going down city roads and people and pedestrians and everything else. I understand all of that. But at the same time, a judge had to make a determination, right, that there was no other way to protect the community but to keep this person in without any kind of bail whatsoever. Is that right?
Gene Rossi:
[0:07:18]
Absolutely or that the prosecutor proved by clear and convincing that he's a danger to the community. I don't think there was a risk of flight here but – and the other thing is this, even though they're not supposed to look at this, the judge may be sending a message. Hey, this guys, superstar, I'm not going to play favorites with this guy. Yeah, this is a pretty egregious act and they won't express this on the record, but I bet subconsciously judge as far as saying, you know what, you're going to jail before trial. This is just too much for me to release you.
Joshua Ritter:
[0:07:54]
Yeah, that's a – hey, judges are people too and sometimes these factors play into their head is how is this going to be perceived in the media and by the community and everything else, things that they should not be considering, but they consider nonetheless.
This is not the end of the troubles for Velasquez as trial date has still yet to be picked. But let's talk a little bit about the fact that the person he was chasing was purportedly had committed sexual assault on his son multiple times. If this goes to trial, do you think jurors would be sympathetic to Velasquez’ reaction to this man? One, the horrible things that he allegedly did to his son, which he himself is going to face trial for? And to the fact that he sees this person on the street a mere two days after his arrest. That kind of emotional response do you think will will benefit him in his defense?
Gene Rossi:
[0:08:50]
Oh, you've represented a lot of clients. Let me tell you that. I have a daughter, 31. I have two sons one’s 30 and 21. And I gotta tell you, if there was a person who was alleged to have violated any of my three kids when they're four years old, when they’re four years old, I got to tell you, I don't know what I would do.
So, Mr. Velasquez, he has a lot of jury appeal whether on the merits, you know, just looking at the elements of a crime may not be there, but we are approaching what could be jury nullification or classic manslaughter where he just lost it, he to passion, and he became temporarily insane and he couldn't control himself. A juror may bite on that.
Joshua Ritter:
[0:09:46]
Yeah. No, I agree with you. And in fact, it's probably the only real strong defense that they have and to kind of dovetail off of what you just said. They've already presented some evidence that he might suffer from CTE from all of the kind of blows to the head he took as a UFC fighter. And I was thinking about this because – and let's – talk me through this, because if you're the prosecution, you're going to say I don't have to prove motive. Therefore, the reason he went after this person is irrelevant. And therefore, I don't want to get into all of this stuff about this other person being released after two days who allegedly abuse his son.
But I wonder if the defense brings in this CTE defence and talks about his mental condition and his impulse control. Do they – are they able to kind of find a backdoor way to get that evidence in to show why he responded the way that he did?
Gene Rossi:
[0:10:37]
Well, I got to humbly, respectfully correct you. If Gene Rossi were the prosecutor, I would embrace the motive in my case in chief and in my Albany, because even though motive is not an element of a crime as you know, element is a – motive is always relevant. What makes a person commit an alleged crime?
And this guy, this defendand Velasquez, he became enraged. He became angry. Why? Because naturally his four year old child, his son or child was molested allegedly. That's the motive. That is loaded. And what they're going to say, the prosecutors, if they know what they're doing, is you can't be Charles Bronson in death wish. You can't be a vigilante. You cannot take the law into your own hands, no matter how angry you are.
And that's what they have to do and they have to embrace that. You can’t – this is not the wild wild west. This is a system in rules of law that you have to conform with.
Joshua Ritter:
[0:11:43]
Yeah, and that takes the sting out of the defense’s argument, right? If you're the prosecution and you're trying to hide it every step of the way, and the jurors see that you're not entirely being truthful with them, and somehow the defense gets this in front of a jury, they carry all the power and impact of it. But if you, like you had pointed out and I think it's a good tactic too, I don't know if the prosecution will do it because it's probably a little too clever for them. But if they do embrace it, like you said, they take a lot of the sting out of that vigilante, how can you blame this guy attitude but instead focus on, listen, he had every reason to be upset, but you don't start firing indiscriminately through the neighborhoods of San Jose.
And you said it before, if I am the defense, I am making sure that every single one of those jurors, either has a child themselves or a nephew or niece that they're really close to, right. Because I think anyone can sympathize, at least with the incredible emotional impact of hearing what had happened to your son or daughter. And then maybe like you said, you're shooting for some jury nullification, and the idea that they got to listen.
This had gone too far. The justice system had failed in allowing this man to be out because I think that's an important point too. It's not that he just saw this person after he had served his prison term of 15 years. He saw him just two days after the arrest, and he lost it under those conditions. And I think there's an argument to be made that the justice system kind of failed in that respect.
Gene Rossi:
[0:13:12]
Right. And there was no cooling off period. And you see passion cases, if you have a cooling off period of say three or four months, then you're getting into premeditation land. But this was one or two days and he just – he was so enraged, he couldn't control himself.
But here's the other thing, you're not shooting for a complete acquittal. You just started shooting for a hung jury. And I had a lot of trials, I lost some, but I'm the master of a hung jury. I've had a 1101, ten to two. So we only need one.
Joshua Ritter:
[0:13:45]
That’s very true. That's very true. And they might get it under these circumstances. We'll keep a close watch on this case.
Moving now though to Nashville, Tennessee where aspiring country artist Katie Layne Quackenbush will avoid jail time after shooting a homeless man in August of 2017. The victim, Gerald Melton, was reportedly sleeping when music and exhaust fumes from Quackenbush’s Portia SUV woke him up.
Melton-Quackenbush reportedly got into an argument and Quackenbush asked the man if he wanted to die tonight before drawing a gun from her purse and firing two shots. After the incident, Quackenbush and a passenger went to Taco Bell, I love this part of it, while Melton survived his injuries, but required multiple surgeries.
Quackenbush was originally indicted on felony, attempted murder and assault charges, but was found guilty by a jury of the lesser charge of misdemeanor reckless endangerment after a trial lasting only two days. A judge ultimately sentenced the women to 11 months and 29 days of probation. Gene, what's what's going on here? What's your reaction? Are you shocked by this sentence and how this all played out?
Gene Rossi:
[0:14:53]
Yeah, my reaction is that jury was off the reservation, number one. And shame, shame on that judge. Shame on that judge because at a sentencing, as you know Joshua, you know, you can look at a lot of conduct beyond what you’re convicted of? And to get probation, as I understand, got probation for almost killing somebody, that's ridiculous.
Joshua Ritter:
[0:15:19]
Yeah, I agree with you. I wish I knew more about the facts and details of this case and I did a little bit of research and nothing really convinced me to understand one, how the jury came to the verdict that they did. And then two, why the judge saw it that the way that they did in the sentencing.
I mean, yes, you're dealing with the person with kind of no criminal record and everything else, but you like you said, somebody could have ended up dead here. I mean it could have been a matter of inches between where we're at now and a dead person on that same evening. Apparently, she testified at trial and said that she closed her eyes before firing blindly and attempt to scare Melton away. Talk to us about the theory of self-defense and the idea of an imperfect self-defense and how that works.
Gene Rossi:
[0:16:06]
Well, I can tell you this. Her closing the eyes may have been the ticket for that jury to cut her abreak because you know, she – the defendant, Katie probably realized if there was evidence that I pointed it, I aimed and I clearly intended to kick his life, I think she would have been convicted. But the jury was looking for something to latch onto. She's a celebrity. It's a Nashville, I understand, Memphis and the jury was looking for a way to cut her a break.
The other thing, and that would be part of self-defense but there also had to be testimony that the victim was probably a little aggressive and she could have been petty and there was probably an argument that they made the defense that she was a little fearful for her life and that this was a reasonable response.
The other thing is, I'd like to know if the background of the victim came into the trial or sentencing. You know, what were her – what were his personal characteristics? Did he have a criminal record? Was he an addict? Was he alcoholic? Had he caused problems in the past in that area? We don't know.
Joshua Ritter:
[0:17:22]
Yeah. No, really important stuff that it might have played into, like you said, the sentencing on all of this. Obviously, you've got 12 people who saw it a certain way, and then you have the judge on top of it who saw it a certain way.
And to kind of touch upon your point you had made earlier about a hung jury, the way it works in California, I'm not sure if it works the same way in Tennessee. But tell me how it works in your jurisdiction, but they would have had to acquitted her of the attempted murder before they could have even moved on to consider the lesser crime.
In other words, if they had hung on the attempted murder, then that's all you would have had is a hung jury in this case. But they literally have to start from the more serious crime, acquit you of that crime first and then move on to lesser crimes if they want to consider those which was incredible to me here that they did acquit her of that attempted murder rather than one or two jurors feeling like this was too much.
Gene Rossi:
[0:18:18]
Absolutely. You have to answer no to the higher part. And once you answer no, you then go to the second question, was it reckless endangerment? It's like murder versus manslaughter. And you know it's -- her testimony greatly affected the jury.
And as you know this, Joshua. a lot of times you don't have your client testified. I can't divulge attorney-client privilege, but you prep for trial. You do a cross, a practice direct and cross. Your client is horrible. Plus, you have landmines that the door will be open because of their, you know imperfections if you will.
And you don't put him on a stand. But when you do, if that jury does not like your client, you're done. You are done. So, it sounds like that she had no criminal record and she really helped her self when she testified.
Joshua Ritter:
[0:19:16]
Yeah. And it was one of those situations or one of those cases I should say too where you really do have to think seriously about putting them on the stand because it is a self-defense case. Otherwise, you have a situation where somebody just fired two shots at an unarmed person. How else are you going to explain that but having her take the stand. And I agree with you, she must have knocked it out of the park that convinced the jurors.
Gene Rossi:
[0:19:37]
And the other thing, Joshua, she must have had a good reason why she went to Taco Bell.
Joshua Ritter:
[0:19:43]
Or good enough reason to explain to jurors? Yeah.
Gene Rossi:
[0:19:47]
Maybe she had a coupon or something, who knows?
Joshua Ritter:
[0:19:51]
Yeah, that's the part that if I'm the prosecution, really, after this traumatic thing that you had to fire at someone, you don't go immediately to the police and tell them what took place. And oh my God, by the way, you might want to check out if that person’s still alive, I'm so traumatized. But you stopped for a Bell grande beforehand. Pretty incredible stuff.
Let's move now to Los Angeles, where we have our dueling trials that we've been following for the last couple of weeks. First, Danny Masterson’s defense was faced with a huge setback as a fourth accuser alleging sexual assault against the actor was allowed to testify in his trial. Masterson is facing three charges of rape for the alleged assault of three different victims between 2001 and 2003.
The actor is not charged for this fourth alleged assault. However, unlike the other three accusers, this alleged victim has no ties to the Church of Scientology. Masterson’s defense objected and said that they felt sandbagged by the decision to allow the witness to testify and called for a mistrial, which was denied.
The judge had initially and this is the part here that kind of kills me. The judge had initially denied the prosecution's request to put Jane Doe 4 on the stand but changed her mind Monday after the prosecutor argued that Masterson’s Defense Attorney Phil Cohen had opened the door by suggesting that all three of Masterson's accusers had colluded against the actor and the Church of Scientology. Okay, Gene, how big of a misstep is this for Masterson's defense team here? Explain to us how this played out.
Gene Rossi:
[0:21:26]
Oh boy, this fourth victim if you will was a classic 404B witness. Other crimes that are consistent that show intent, plan, motive and and other things. So the defense attorney was probably told of guarantee it. Government, I'm going to deny your motion pretrial to have this fourth accuser. But defense attorney, if you open the door, even one tiny 100th of an inch, I'm going to let it in.
And as a defense attorney, you walk on crushed ice because you don't want to open that door even a bit. I had a trial in March and I was in the same situation. If I open the door, there would have been three or four other people testifying. So, it sounds like that argument that the three colluded gives the impression that there's nobody else out there other than the three who colluded, number one. and that anybody else didn't collude, so, or could have colluded. That opened the door. And I think the judge made a proper ruling. I think the motion for mistrial should be denied because it sounds like to me that the defense attorney kind of got a little bit too cute and opened the door.
Joshua Ritter:
[0:22:50]
Yeah. No, I agree with you. It This – just so listeners can understand this. This wasn't some sort of surprise witness that the defense had no idea about. You're absolutely right. They litigated this heavily beforehand because you can be sure the prosecution wanted to bring this in. You call it a 404B. Here in California, would be an 1108 witness, I believe it, but it's that same concept that you're bringing in prior bad acts that are uncharged.
And a judge has said no which is pretty surprising in this type of a case, specially in a sexual assault case. Judge had said no, but you're right at that point, the defense – this is a third rail issue and you don't get anywhere near it and they got close enough. And I agree with you and I agree with the judge’s decision, they got too cute by half and had to make this argument prematurely because they could have saved this argument for closing, right.
They could have just cross examined these witnesses and then brought up this issue of collusion later on, once the case is closed. But they gave the prosecution that upper witness to bring this person in, and I think it's devastating evidence. What are your thoughts on the actual testimony of now a non – a person not connected to the church testifying about sexual assault?
Gene Rossi:
[0:24:03]
A couple of comments. It's federal rule of evidence 404B for the listeners. But here's why this is a beautiful moment for the prosecution. I gave a lecture to Arlington County State Prosecutors Virginia yesterday and I said to them, as a prosecutor, you always try to underpromise and overperform. So, think about this. The prosecutor said members of the jury, we're going to call three accusers, one, two, three, Sally, Susan, and Olivia. All right, SSO. And they told the jury three accusers.
And then at the end of the day before closing, they're able to say members of jury, I misspoke in opening. We were going to call three accusers but then we had this third accuser, you know, Barbara. And the jurors are going to say, oh my God, they had three, then they were allowed four. There must be more.
They can't express that, but that's the impression a jury gets. It's not just three, it's not just four, it's likely more. That is very bad in a sexual assault case. And if the allegation is rape and not, you know, fondling or object penetration, it's rape, they're going to probably have a quick verdict of guilty in my view.
Joshua Ritter:
[0:25:27]
Yeah. Yeah, I agree with you. I think this is just devastating to the defense too because Scientology had become such an issue in this case and the prosecution was using it to their benefit to say this explains the delay in reporting because we're talking about a huge amount of delay in reporting these crimes to actual law enforcement. And they could say, well, the church made them feel that they couldn't do it. They were intimidated by the church.
And the defense just couldn't help themselves, but had to attack that and say this isn't the church prevented you, you're trying to get revenge against the church. And aren't you all just working together to, you know, I don't know, say – I don't know exactly what their theory was, but somehow they included it as being about the church and not about Masterson himself.
And then to open up this door and it was, you know, the prosecution was just waiting for this opportunity. And now you can say, like to what you said, not only could – did I underpromise, but now I can show you, hey, by the way, the church had nothing to do with this. The church – this is another fourth person unrelated to the church who is now accusing him of the same things. So their whole collusion argument falls apart, yeah.
Gene Rossi:
[0:26:37]
And it's beautiful and it gets stuck. Really, when you underpromise and then you overperform, the juries respect you. I have been the opposite where I overpromise, underperform, and that's why I have a few of my 110 trials, I have a few hung juries and a few acquittals. And it's impart because I overpromised, underperform.
Joshua Ritter:
[0:27:02]
Yeah. Well, I hope out of 110, there were a couple of it you didn't bring home. I would be surprised.
Gene Rossi:
[0:27:10]
There were a few cases where I snatched victory from the jaws of the fee and vice versa. Vice versa.
Joshua Ritter:
[0:27:20]
Moving down the hall of the same exact courthouse, still in Los Angeles, California. We have Harvey Weinstein's defense has taken what I'll call a unique approach in their cross examination of Jane Doe number two, also known as Lauren Young, who has alleged that Weinstein assaulted her at what was supposed to be a business meeting.
And in an effort to dramatically act out part of Young’s story while picking it apart, one of Weinstein's attorneys pounded on the podium at one point and pushed a chair across the floor at another. These antics even prompted a reaction from Weinstein himself. In Young's testimony, she alleged that the former Hollywood mogul had cornered her in a bathroom before disrobing, groping the woman and masturbating in front of her.
When questions about her recollection of the events, Young testified that Weinstein had undressed himself and got into a shower so quickly that she had trouble processing the events as they were unfolding. The defense attempted to demonstrate the alleged speed Weinstein could have undressed with Attorney Alan Jackson taking off his suit jacket in front of the jury. Jackson told the witness he wouldn't undress any further, to which Young responded, please don't.
What do you think about this approach by that defense? Do you think this kind of stuff – how does it affect the jury? Is it – do they view it as zealous advocacy or is this may be a step too far?
Gene Rossi:
[0:28:40]
I think that move was as dumb as Christopher Darden. Having OJ trying a glove before OJ had tried on the glove because he could have gotten a court order to make sure he doesn't pull any shenanigans. This is stupid. And don't go any further, is that what the witness said? Don't go further or don't do that?
Joshua Ritter:
[0:29:01]
Or please don't, please don't, yeah.
Gene Rossi:
[0:29:02]
Okay. Okay./ And if I'm a juror, I'm going to go that's a trick that backfired. Here's a thing on demonstrative activities in the courtroom, Joshua, as you know, don't do anything that's cute. Don't do anything that's stupid. Don't do anything that's irrelevant and test marketing. I don't think this person is attorney practiced what they did in the courtroom. Was it on TV? Was it recorded?
Joshua Ritter:
[0:29:31]
No, no, there's no cameras in the courtroom right now.
Gene Rossi:
[0:29:36]
Good for that attorney because I'm sure it looked really bad.
Joshua Ritter:
[0:29:39]
Yeah. Well. talk to us too about, you know an understanding for kind of the trial that you're dealing with too. You know, it's one thing if we're, you know, dealing with a fraud case and it's another thing if we're dealing with a murder case. But here we're talking about sexual assault. You've got a male defense attorney vigorously cross examining a female alleged victim. How about the optics of all of that? How do – how does an attorney handle that?
Gene Rossi:
[0:29:39]
Well, I can tell you this. In any sexual assault case and I've had two now, one went to trial. If – number one, I highly recommend that your cocounsel be a woman, okay . That's number one. This is just reality. You're trying to defend your client in the best manner. And if it's two older white guys defending a person accused of rape or sexual assault, that's a tough road.
Second is you really have to make a good judgment call about who's going to cross examine the alleged victim. Should it be your female counterpart or should it be you? If you make the decision that it’s you for whatever reason, maybe you’re more skilled and experienced, cross examining a female victim is incredibly hard because you have to worry about insulting the women and the men on that jury because of your aggressiveness.
In the trial, Joshua, you just referred to where the attorney is making believe he's taken off part of his clothes, and in fact he took off his jacket, you have to be careful because what you're going to do is you're going to give the impression you're mocking your allegation. You're not taking it seriously, and you're questioning her credibility but you're doing it in a disrespectful way.
And that's the important thing you gotta do when you're a guy or a gal cross examining a female victim, you have to respect their allegation, believe it or not. You got to respect it, but you also have to respectfully challenge it. And if you don't respectfully challenge an allegation, a jury is going to hate your guts.
Joshua Ritter:
[0:31:55]
Yeah, yeah. Listen, I'm not saying it's an easy job that these attorneys have. This is a very difficult case. They're dealing with, you know, a client that by all accounts I think most people see as a monster. They want to be as zealous in their advocacy as they possibly can. But I also wonder too about the optics of essentially recreating some of what the alleged victim is saying took place in front of the jurors. Do you follow what I’m saying?
Gene Rossi:
[0:32:28]
Yes. Listen, let's just say somebody was raped, allegedly raped in the back seat of a car at a drive-in movie which don't exist anymore. Okay. And you’re the defense attorney, you're a guy and you're making believe you're crawling over the sea and you're taking your clothes off, you’re almost – by reenacting that, you're doing two things. You're mocking what she's alleging. And number two, you're trying to embarrass her because the last thing you want to do is act. The last thing you want to do is act like the person who's on trial and reenact what but she says was a horrific incident. That's the last thing you want to do.
Joshua Ritter:
[0:33:12]
Yeah, yeah. One more point on this and I'm curious to hear your thoughts. The defense, I think one of their strongest arguments is they've been attacking the idea that a lot of these alleged victims came back to Weinstein after their – these acts of assault or alleged acts of assault, either consulted with him, asked him for help, saw him again in a business type relationship. Do you think that has a strong impact for the defense or do you think that we live in a time where people don't view the actions of alleged victims of sexual assault the same way that they might have 10, 20 years ago? What are your thoughts?
Gene Rossi:
[0:33:55]
Okay. I got two answers. We did a mock trial one of my cases. And the argument that after this violent sexual assault, the alleged victim continued to see this defendant. It was a medical professional and the jury thought that that was a very negative thing for the accuser. Because if you're raised, you don’t need to be a psychologist, psychiatrist, or an expert, you're not going to go back to the person who just violently attacked you unless you're in a relationship of power and trust. And it's like a parent or it's a brother who's molesting you and your sister or it's a priest and you’re an altar boy. People get that.
But if you're in your 20s, 30s and 40s, and you're assaulted and you keep going back, that's a big negative. And that's where I would be aggressive respectfully because you don't go back to your accuser who just raped you, unless you're in a certain situation. Now, let's get back to 20 years ago versus today. I think, today, rightly or wrongly, people are now accepting that individuals can compartmentalize horrific events.
Okay. I'll give you an example. I'm seeing a pain doctor. I’m getting a lot of oxy. I have pain. I need those pills. So I put up with a lot of baloney with the doctor, so I'm going to keep going back. And what I did is I just compartmentalized those incidences because I needed pain relief. I think now people are starting to realize you can do that and it's a tough balancing act going back when you shouldn't go back versus people are now taking the argument they can compartmentalize. And it's up to a jury to say I don't believe one, I believe the other, and that's where voir dire is crucial finding people who are sympathetic or unsympathetic to either side.
Joshua Ritter:
[0:36:01]
Yeah, absolutely. Well, we will continue to watch this case and the Masterson case very closely, because they they both are really demonstrating a lot about, you know, trying these types of cases in now the Me Too era and how that all plays out. But in the meantime, that's our show for today. Gene, thank you so much for coming on this week. It was so great to hear your thoughts and insights. Where can people find out more about you?
Gene Rossi:
[0:36:27]
Okay, you can go to carltonfields.com. It's my law firm in Washington, D.C. and I want to stress my comments are of a personal nature. I do not represent the firm in this podcast. But if you want more on me, go to carltonfields.com and there's a little link for the attorneys, and that's the best way to reach me.
Joshua Ritter:
[0:36:49]
Fantastic. And I'm your host, Josh Ritter. You can find me on Instagram and Twitter, @JoshuaRitterESQ and 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.
