Lori Vallow competent to stand trial; Newsom testifies in Harvey Weinstein’s trial – TCD Sidebar
In this episode of True Crime Daily The Sidebar Podcast
Renato Mariotti joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss the possible criminal charges following the collapse of FTX, Lori Vallow being deemed competent to stand trial, jury deliberations for Danny Masterson, and emotional witness cross-examination in Harvey Weinstein’s ongoing sexual assault trial.
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're recording this on Friday, November 18th, 2022.
In this week's episode, the historic financial collapse of Crypto Exchange FTX, after alleged diverting user funds for personal gain. As well as Lori Vallow Daybell, the mother accused of killing her two children for her doomsday beliefs, has been found competent to stand trial in a new ruling by an Idaho judge. We'll also discuss closing arguments in Danny Masterso’s rape trial as jury decides the actor’s fate. And finally, emotional testimony from the governor's wife, Jennifer Newsom, in Harvey Weinstein’s sexual assault trial here in Los Angeles.
Today, we are excited to be joined by Renato Mariotti, a former federal prosecutor, political writer, legal analyst and host of It's Complicated Podcast. Welcome.
Renato Mariotti:
[0:01:20]
Thanks. Good to join you.
Joshua Ritter:
[0:01:22]
Thanks so much for coming on. Before we jump right in, I want our listeners to know a little bit about you. So could you please tell us about your background and current practice?
Renato Mariotti:
[0:01:31]
Sure. I went to Yale Law School and was at a law firm, but then spent almost a decade as a federal prosecutor. I'm mostly prosecuting white collar crime, large scale frauds, high frequency trading, that sort of thing. Now I got to practice handling all sorts of not only criminal defense but also civil enforcement, lots of other civil cases. And as you said, I have a podcast and do a lot of legal analysis and all that good stuff.
Joshua Ritter:
[0:02:00]
Well, we are excited to hear your thoughts on these cases, especially this first case I want to talk about, given your background at the prosecutor's office. Let's jump right in. Talking out of Manhattan, New York, the Office of the U.S. Attorney's Office is reportedly preparing criminal charges against Sam Bankman-Fried, also known as SBF and his FTX Crypto Exchange.
This comes after reports that the company diverted customer funds to back a company named Alameda which act as a crypto hedge fund, also allegedly owned and operated by SBF. In regulated markets, the use of customer funds for proprietary trading is forbidden without investor consent. However, in unregulated crypto markets, the same protections don't exist. The company, which has since filed for bankruptcy, listed in the terms of its service that users owned the cryptocurrencies in their account stating none of the digital assets in your account are the property of or shall be loaned to FTX Trading.
John J Ray, who has helped oversee some of the biggest bankruptcies ever, including Enrons, said in the filing to federal bankruptcy court that he has never seen anything as bad in 40 years of restructuring firms. Ray said that FTX suffered a complete failure of corporate controls that culminated in an unprecedented dibacco. Pretty strong words there, Renato. Jump right in, what exactly appears to have happened here from what we've learned so far?
Renato Mariotti:
[0:03:27]
Wow. Well a lot. It’s almost impossible to sum up, but the bottom line is this, you know, FTX was an exchange where, like you said a moment ago, Josh, you deposit your money and you could use it to trade crypto. Just like if you went to, you know, let's say you're depositing your money to E-trade, you want to trade some stocks, right. Well, you assume when you put your $1,000,000 into E-Trade that they're not taking your $1,000,000 and off doing other things with it. You expect you can withdraw your money when you want, you can trade your stock.
And what happened with FTX is they were actually loaning them money to Alameda, that entity you mentioned. They were also using that money for other purposes. There's actually that Mr. Ray mentioned, there's a billion dollar loan to SPF himself, kind of bizarre. Other loans made doesn't seem well – they didn't seem to be well documented, but loans made to other executives. So obviously there appears to be a fraud to the customers of FTX. And also –
Joshua Ritter:
[0:04:22]
Putting it mildly.
Renato Mariotti:
[0:04:24]
Yeah, exactly. And also appears to be fraud as to the Alameda customers. It takes a lot of skill to do multiple frauds at once, but it appears the Alameda folks, you know, that was a hedge fund. You know, when you invest in a hedge fund, the idea is that these hedge fund wizards are going to be trading and investing in doing a great job making money for you. Instead, what they invested in was this token that is used, this crypto instrument that is used in FTX to pay for FTX transaction costs.
So basically, if you traded on FTX, you had to use this FTT token to pay for the transaction fees. And obviously SPF wants to keep the value of that up. So what they did is they took the Alameda investors money and poured that into FTT to prop up the price of that. So it really looks like you get fraud both of them at once that. We are talking here, Josh, like billions, like maybe $9 billion, a massive fraud that probably the biggest you've seen since the made off case.
Joshua Ritter:
[0:05:25]
Yeah. All that you explained sounds so outrageous and so also kind of clumsy, right? I mean, it's not like – it looks as though a lot of this fraud were taking place out in the open almost, right. How – one, how do you think they got away with this? Is this just lack of regulation and is this so fraudulent and so, you know, unescapable that they're going to be facing criminal charges here, what are your thoughts?
Renato Mariotti:
[0:05:54]
Well, the last question is easy. Okay. Yeah, SPF is going to be facing criminal charges. He's in real trouble. And by the way, this guy doesn't stop talking, right? He's given interviews the New York Times. He's tweeting his tweet threads. He's doing DMs where he's like, yeah, everything just kind of got away from me or whatever. My altruism was just an actor. You know all this stuff is crazy stuff he's saying.
Joshua Ritter:
[0:06:15]
Right, right, right.
Renato Mariotti:
[0:06:17]
But putting all that to the side, you know, well how this happened. I mean, certainly, you know, when – you quoted Mr. Ray time up the lack of corporate controls, then almost like understates it. I mean what they were doing there, like if you were an employee at FTX, you had an expense that you needed approval for, you would just put it in a chat that would disappear over time. They will put an emoji up or down. They were – and now –
Joshua Ritter:
[0:06:39]
Yeah. It was like can I buy a plane and it would be astronaut emoji, meaning go for it. I mean it's just insane the way they were operating.
Renato Mariotti:
[0:06:46]
Right, no board meetings. You know, these loans going back and forth. I mean the billion dollar loan is one thing, but there's hundreds of millions of loans to others, very bizarre. So yeah, look a lot of – there was just money flowing in. I mean, I definitely think that part of the issue here is a lot of money was flowing in based on trust and charismatic personality. You know, SPF is putting himself out there as like the next Steve Jobs or something. The first, you know, on path to be the first trillionaire, the world’s first trillionaire. All this stuff.
And I do think that's part of it. I think part of it is lack of regulation that the thing that the folks at SPF are going to learn very quickly, though, is whether there's regulation of some of these specifics or not, there's no question that fraud is regulated by a whole slew of entities, including the United States Department of Justice. And whether you defraud people in baseball cards, tulip bulbs, or crypto, you're in trouble if you end up doing that, and that's the reality of where they're at.
Joshua Ritter:
[timestamp0:07:42]
I'm glad that you explained that that way, that just because the industry isn't as highly regulated, doesn't mean you can't be committing crimes that don't run afoul of a whole bunch of other laws everywhere else. This is obviously going to have reverberations beyond just, you know, FTX. Talk to us about what do you think, you know, this may be beyond your pay grade kind of, but what do you think this has to do with the future of cryptocurrency?
Renato Mariotti:
[0:08:07]
Oh, it's a subject I've thought a lot about. You know, I was talking to financial institutions before this happened and I was talking to them. They were asking okay, where do you think crypto regulation is going? I'm like, well, you have the SEC who seems really interested in regulating. I don't know if you remember, they had this action against Kim Kardashian and the chairman of the SEC, Gary Gensler, had these like social media videos with cartoons where he's like, you know, this is what we're doing to regulate. Certainly seem super interested in regulating crypto.
And then yet, on the other side, there's a CFTC which is what, who the industry wants to be the regulator, a little smaller agency, smaller budget, a little bit less aggressive and German being, you know, maybe more in less anti-industry from their perspective. So there was this going to be this turf war and so on. I really think at this point, you know, that there was a caution that these regulators, they didn't want to maybe, you know, rush in there too quickly and they wanted to really figure this out. I think that there's there's actually going to be more intense and aggressive regulatory attention here. And I think there's a concern from the people in the industry who actually are trying to be compliant. Ironically, they may pay the price here. They're getting painted with the same brush as FTX.
Joshua Ritter:
[0:09:20]
Yeah, yeah. it's really going to, I think change that industry dramatically. Another kind of area of life its affected is politics because according to reports, SPF was the second largest Democratic donor outside of George Soros. Do you see any problems on the horizon for some of those politicians who may have accepted some contributions from him?
Renato Mariotti:
[0:09:45]
You know, maybe, maybe not. I mean, obviously people get, you know, contributions all the time from folks. I bet they're long since used. People's memories are short in politics, right? We live in an age where, you know, everyone you know, people are storming the Capital and then you know they try to remember it later on, but then you know everything changes, right? We're already got a new news story. We had the elections. Now, it's Nancy Pelosi, then there'll be something else that happened, right?
So I don't know about that, but I think that you know certainly a Democratic donor drying up. Obviously, it hurts the Democratic Party to some extent, but you know, I don't think that's going to save the height of Mr. Bankman-Fried.
Joshua Ritter:
[0:10:24]
No, I don't think so either. All right. We will continue to watch this. It's fascinating. I imagine going to get even more fascinating as more these details come out.
Let's turn to St. Anthony, Idaho where Lori Vallow Daybell has been found fit to stand trial in the last ruling on her mental health by Idaho District Judge Steven Boys. This is the second time that she has been declared competent in the trial after being released from a state mental facility. Previously, Vallow’s case was paused back in October after concerns about her mental state indicated that she was not ready for legal proceeding.
In other Vallow Daybell news, a judge has denied a motion to sever the cases between Vallow and her husband Chad Daybell, and the couple are set to be tried together, though no court date has been set. Vallow and Daybell are charged with the murders of Lori Vallow’s son, JJ Vallow, only nine years old and her daughter Tylee Ryan, 16, who disappeared in 2019 and were found buried in June of 2020 on Chad Daybells’ Idaho property.
They were also charged with murder and conspiracy related to the death of Chad Daybell's first wife, Tammy Daybell. Chad Daybell and Lori Vallow shared extremist doomsday religious beliefs, which are thought to be motives for the murder.
Renato, interestingly, Idaho abolished the insanity defense in 1982. The law prohibits any consideration of the defendants insanity in a criminal trial. Instead, testimony is restricted to issues of mens rea and other elements of the events involved.
So let's talk a little bit about that. How would this play out in court? So you have experts who are going to be allowed to testify, but they can't testify to anything dealing with insanity, only to mens rea. How do you see that playing out?
Renato Mariotti:
[0:12:12]
Well, I think as a practical matter, it may be somewhat some more. In other words, instead of fitting into the box of insanity, what's going to happen is the defense is going to put all these people up, basically saying she didn't understand, she didn't know what she was doing because of XYZ ABC. And they're going to get all of this in front of the jury about her mental state and her competence and so on and so forth.
And so basically, they're putting before the jury – I mean the jury, as you know, Josh, yes, they care about, you know the legal legalities and what the judge is instructing him. But they also care about doing the right thing, and they want to be fair to the person. And so you know if they contain a sad picture, maybe they can pick off one or two jurors and have, you know, have a hung jury. I would think that would be the goal on the defense side. But of course, there's also the issue, as I know you were flagging a moment ago of whether or not she's competent to stand trial in the first place.
Joshua Ritter:
[0:13:02]
Yeah. And we'll get into that. And I just wanted to kind of dovetail off at one point that you made that the defense will likely present experts I'm sure, to talk about her mental health. And they're not going to be able to make that ultimate kind of conclusion as to her being insane, nor will they be allowed to say that she wasn't able to have premeditated what she did here, because that's a question strictly for the jury.
But they're going to try to attack that, because that's really what it comes down to. Okay, she – you know, if she committed these murders, was she so affected by some sort of mental impairment that she couldn't perform or form the proper mens rea mental state intent, specific intent, most particularly for first degree murder. So that's really how this is going to play out, even without an insanity, you know, NGI type of defense here.
But let's go back to like you said, this idea of the difference between competency and insanity. So we've been dealing a lot of with her competency before now. What is that and how is that different from being an insanity defense?
Renato Mariotti:
[0:14:14]
And so competency to stand trial is like a super low bar. It's like, right, are you able to understand the proceedings, meaningfully participate and so forth. And so, you know, the way it – when I was a federal prosecutor, we always – I wouldn’t say joke but we would always remark that essentially if the person is incompetent, they basically would send them to some facility and put him, put drugs in them and so forth and make them competent.
I mean it ultimately rarely results in somebody not being able to stand trial, but the idea is so that the person's rights are vindicated, they're able to participate, they need to get to a spot where they're able to, you know, have conversations with their counsel, participate in the proceedings, testify if necessary, and so on.
Unfortunately that for Mr. Day – for Ms. Daybell, like that's probably not going to keep her from having a trial. And as you said, really ultimately, you know, what's going to happen is, you know this is going to play out in front of the jury. And, you know, the downside of not having the insanity defense is just that instead of arguing it straight up of, you know, hey, she was insane, they're going to have to try to dance around it and fit it within the mens rea elements.
Joshua Ritter:
[0:15:18]
Yeah. And it's, you know, you're dealing with such a tragic case here and the motives behind it appear to also, you know, make zero sense. I think it's going to be an extremely difficult case for the defense, especially dealing with, you know, the loss of children.
Now, we turn to Los Angeles in our ongoing sexual assault cases here. A jury of seven women and five men will begin their deliberations this week in Danny Masterson’s high profile rape trial here in Los Angeles. The former That 70s Show actor is charged with three counts of forcible rape, alleged by three different accusers with the incidents occurring between 2001 and 2003.
All three women belong to the Church of Scientology of which Masterson is still a member. The women claim church officials intimidated them into keeping their claims secret. Recently, a fourth accuser who’s not affiliated with the church was allowed to testify after Masterson’s defense suggested the woman had colluded against the actor – the women, pardon me, had colluded against the actor and the church.
Closing arguments were delivered on Tuesday, November 15th and now a jury will decide on the charges which could carry a sentence of up to 45 years if Masterson is convicted on all counts. First thing and people always ask me about this, Renato, is that Masterson opted not to testify at this trial. How do you think that strategy paid out for the defense in this type of a case? Or is this one of those things where you just can't put your client on the stand?
Renato Mariotti:
[0:16:55]
Wow, that's a great question, very profound question. It comes up in many, if not most criminal trials. So the way I would I think of it is as follows. If the defendant testifies, it really changes the calculus, that the trial changes the question before the jury the trial. In other words, if the defendant doesn't testify, then the question is simply, okay, you have all this evidence in the government, is it enough, does it meet some hypothetical, you know, proof beyond a reasonable doubt standard? And that's really the whole question before the jury.
If the defendant testifies, then the question is, is this guy telling the truth or not? Do we believe his story or the government’s story? There's literally two options, whereas if the guy doesn't testify, there's a hundred different possibilities. The jury can insert whatever they think the most likely potential scenarios are.
So what's better or not? Well, if you don't testify, I do think the jury, whether they're always instructed not to do this, but the reality is they're thinking themselves, well, why didn’t this guy come forward and testify? You need to – I will tell you, my last criminal trial against the Justice Department, I did not put my client on the stand. And in closing argument I explained why and I argued it to the jury. And I, you know, I got 10 out of 12 jurors in that trial. I probably would have gotten all 12 if he testified, but I didn't want to take the risk there, okay, because there's a risk.
If your guy tanks on the stand, then you lose, right. If they think he's a liar, then you've automatically lost, right. You're giving a second life to the government. So it can be, in that case, there's an expression of confidence on my end. I thought I was going to win no matter what, but it can also be the opposite. It can be that, well, your guy’s got so many questions that he can't answer that your only hope is to not put him on the stand and deal with. In this case, several accuser which I think is going to be a real big problem for Mr. Masterson.
Joshua Ritter:
[0:18:43]
Yeah. I'll go step further. You say is as long as your client doesn't tank, I don't even think your client has to tank. I think they just have to do a little bit poorly. I mean, one little mistake, one little error, one little, you know, something that could be perceived as not being entirely truthful. And jurors will latch onto that because they're just waiting for something to kind of hang their hat on. Really, a defendant has to knock it out of the park I think if they're going to testify because otherwise, you know, jurors are looking for some sort of excuse from that person to say oh, they're not being truthful with me. Therefore, I'm going to side with everything else the prosecution has put on. That's just kind of my experience.
Let's talk a little bit about this fourth accuser that was allowed to testify who is not part of the charges but did allege, you know, prior sexual misconduct and was not connected to the church. The judge originally was not going to allow this witness, but said that the defense opened up the door by making the argument that the other witnesses had colluded with each other because they were against the church. I guess my question was, was this unavoidable for the defense or do you think they really dropped the ball here?
Renato Mariotti:
[0:19:59]
Well, yeah, it's certainly not unavoidable. I think it's at worse a screw up, a major screw up. It's at best a very calculated decision by the defense. So just as a backdrop. In court, you're not allowed to have evidence about other potential misdeeds that someone has committed that are not part of the charges, are not allowed to be – to come into evidence for good reason. Because the point is whether the evidence is there to prove beyond a reasonable doubt what the charges are, not to render judgment on a person’s full course of a person's life.
And so, right, so this ordinarily, all this other stuff, all this other conduct, whatever send the rest of his life wouldn't come in. And you know, I imagine if everyone was doing this right, this kind of was laid out in advance and effectively for the defense. In other words, the prosecution, they had to know the prosecution had other evidence out there or how to be concerned about it. Usually, in a case like this, if I was prosecuting it, I would put a marker down for the defense, saying, okay, Judge, you know we tried to get this in, you said no but, you know, they could open the door, you know, whatever. If they argue XYZ, I'm going to be arguing that they open the door to basically put him in a box, so to speak.
Joshua Ritter:
[0:21:07]
Give him a warning, yeah.
Renato Mariotti:
[0:21:08]
Give him a warning.
Joshua Ritter:
[0:21:10]
Here's the line in the sand, yeah.
Renato Mariotti:
[0:21:11]
Yeah. And basically, so the defense then had a choice. I mean, assuming that that was done here, they had a choice. Do you keep yourself in this box, and your defense in this box and an entire trial, which is not, you know, sometimes not an easy thing to do. Or do you just take the fact that you're going to get this other evidence in? Like I said, at best a calculated choice here because the downside of making that argument which maybe they felt like they had to make is that of course, now there's a witness and that makes them look like they were misleading the jury.
Joshua Ritter:
[0:21:47]
Yeah, yeah, I agree with you. I think it was a mistake. I think it was a mistake that may end up being fatal. I mean, I'm saying that now we'll see what the jury actually thought of it. But to me, you know, letting this other person who's uncharged come in as this kind of surprise witness moment could have been devastating to the defense’s case.
We had talked a little bit about this before we started to record. And I was really interested in your thoughts because a lot of these allegations are very old, 15 plus years old. And there was some testimony provided that, you know, they were prevented from coming forward to law enforcement by the Church of Scientology. But talk to us just a little bit about that idea of our modern kind of understanding of sexual assault victims and how we expect them to behave versus how they sometimes behave.
Renato Mariotti:
[0:22:41]
Yeah, I think that there's an expectation that a lot of folks have, that if you're a victim of a crime, particularly a serious violent crime like sexual assault, you're going to immediately report that to the authorities. There's a lot of evidence out there that actually a very large percentage, if not the majority, of sexual assault victims do not report that right away. And that's – there's a lot of anecdotal evidence. I think part of the power of that the Me Too Movement for example, was just, I think a lot of us seeing wow, all these people around us who we know all the time, actually were victims of something and many of them didn't report and weren't, you know, ultimately didn't bring cases, but I think that's powerful.
So, I think you know there's a lot of times what happens is in trials, prosecutors put in evidence to disobeys jurors of assumptions that they make. I used to do this with fingerprint evidence all the time. I’ll put in fingerprint examiners and say hey, there's no fingerprint on this gun, and here's why, because we usually don't find dingerprints on guns and yadda yadda. Basically, just to explain to the jury that their assumptions are incorrect. And so I think a lot of times I think prosecutors are doing that in sexual assault cases now and saying hey, just because she didn't come forward right away, doesn't mean that she wasn't a victim of a sexual assault.
Joshua Ritter:
[0:23:54]
Yeah, that's a really – I like that tactic of kind of attacking your, presenting your perceived weaknesses upfront and taking kind of the wind out of it for what the defense might attack. And the prosecution did have a pretty strong reason here when they're dealing with the Church of Scientology, which brings me to my last question on this. In his closing arguments, Masterson's defense attorney said that Scientology was mentioned some 700 times during the trial. He said “it became about Scientology”. What do you think his point was there? Like what is this? Is it just a diversion or what is the tactic behind this you think?
Renato Mariotti:
[0:24:37]
I think it's a smart and obvious tactic, which is to basically say this is religious persecution. You always want to – when you're in a criminal trial, your clients been accused of serious crimes, you know, the jury despite what the rules say, they're going to basically presume your client’s guilty, not presume that the client’s innocent if there's an indictment out there. That's just the reality.
And so basically we're just trying to say is how do you explain what happened here? And it's the explanation, the ready explanation is religious bigotry that there's discrimination against his religious beliefs, and he's trying to, you know, he or she, the lawyers got to convince at least one juror of that.
Joshua Ritter:
[0:25:15]
Yeah. And we'll see how it turns out. It was apparently a very short by most standards closing argument, got straight to the point, and the jury is still deliberating. So any day now we should hear the results of that case.
Now moving down the hallway of that same courthouse, we turn to Harvey Weinstein. Jennifer Siebel Newsom, the wife of California Governor Gavin Newsom, endured an emotional cross examination from Weinstein's defense. The former actress testified about an alleged encounter that took place at the Beverly Hills Peninsula Hotel in 2005 in what was supposed to be a business meeting.
Newsom alleges that Weinstein manipulated and penetrated her before she faked an orgasm to end the encounter. Weinstein's defense attorney asked Newsom to demonstrate how she indicated pleasure in front of the jury in his cross examination of the witness. Newsom, visibly annoyed, retorted this is not when Harry met Sally. I'm not doing that. Later, Newsom added what you're doing today is exactly what he did to me in regards to the defense attorney cross examination.
Newsom also testified that Weinstein’s unique anatomy, testified rather about his unique anatomy, which has become a focus of this case. The defense went on to drill down about Newsom’s contact with Weinstein after the alleged assault, including thanking the former Hollywood mogul after he got her and a friend into an Oscar party. An emotionally shaken Newsom responded I was just hustling.
Renato, let's first talk about this defense line of attack when alleged victims have subsequent contact with their abusers. So we've talked about kind of delayed reporting. Now, let's talk about when they go back and even have contact with their abusers and how people perceive that? And is that a persuasive argument by the defense?
Renato Mariotti:
[0:27:15]
You know, can be. It's definitely an argument that's very frequently employed. I, at times, had handled cases where there was sexual trafficking, trafficking of minors and so forth. And the perpetrators would convince the minors that, you know, that person was looking out for, the defendant was looking out for their interests and they would have an intense intense feelings about him because that was effectively, these were minors, right, who were being groomed and cultured by them.
And so actually a huge issue in a lot of cases would be almost getting them to testify against the wrongdoer and constant issues like, well, she said this to me, she did that to me, she was doing all these very positive things and saying all these wonderful things about me after the assault so it couldn't have happened.
I think the common issue in sexual assault cases, here of course there's a power dynamic. It's a different kind of power dynamic, but it's similar in the sense that Mr. Weinstein was allegedly taking advantage of the power that he had. And, you know, at the time, Ms. Newsom was not the first lady. She was somebody who was relatively, I mean some minor actress who’s not super powerful actress and Weinstein was a powerful producer who's taking advantage of her. And so she couldn't afford to be his enemy and blow him off. She had to find a way out of the situation that would preserve that relationship and so the defense is trying to take advantage of that.
Joshua Ritter:
[0:28:44]
Yeah. We don't have cameras in courtroom on this case, which is unfortunate because it is – there's a lot of national attention on it for many reasons. But from according to reports of people who have watched it, the defense has taken the tactic of kind of no holds barred on this. And they're not holding any punches and being very aggressive of their cross examination of women who are claiming to be, you know, victims of sometimes really awful sexual assault. Including with Ms. Newsom who testified asking her to demonstrate how she allegedly faked an orgasm in front of the jury. That had a pretty visceral response from her.
Tell me what are your thoughts on that. Is this kind of the only path to go in these types of cases or is there a different tactic? How do you think that's received by a jury? Just kind of jump right in.
Renato Mariotti:
[0:29:40]
Yeah, sure. So first of all, I mean it's certainly not the traditional playbook. The traditional playbook with a sympathetic witness, a hostile witness like a victim or a young woman or someone like that, is to actually have kid gloves and approaching for gently and to slowly work into, you know, difficult questions, but do so in a way that doesn't appear hostile, doesn't appear like you're accusing the person of being a liar or something like that, but you're walking through the limits and their testimony showing how they could be mistaken.
I've had to do that many times. It's often challenging, even – it works – and it’s the same when you’re a prosecutor and you're crossexamining the girlfriend of the bad guy or something like that who is just, you know, kind of up there and everyone knows that she's not really the wrongdoer. You know, the thing that I think is potentially going on here, the strategic choice that they're potentially making is, they may decide that, well, if we do that to all these witnesses in this case, where basically it's a slow please, so to speak. We're basically pleading guilty. We've got to take him down. We've got a challenge and we've got to knock him down a peg.
It's very distasteful though, and it's extraordinarily high risk and it's more likely than not going to piss off the jury and get them to find him guilty. And I think the only time that a strategy like that makes sense is when you're very desperate and you're likely going to lose anyway and so you are basically taking a very high risk strategy in the hopes that you will, you know, convince one or more jurors, you know, whether it's because of misogyny or just they don't like the the witnesses or whatever it may be to vote not guilty.
Joshua Ritter:
[0:31:19]
Yeah. And it's difficult to kind of play, you know, Monday morning quarterback on some of the ways that the defense team is handling this because we haven't seen how these witnesses are actually behaving in court. Because sometimes these witnesses, as sympathetic as they may start out sounding, can turn very hostile and kind of give the defense permission to go back after them. We saw that, I think recently and fairly famously in the Amber Heard cross examination, where the attorneys there didn't really hold back, but Amber Heard was kind of giving them permission in the way that she was behaving and answering questions. And we don't have that benefit of having the cameras in the courtroom here to see how it all turned out. It appears as though she was very emotional, but we'll see how the jury reacts to all of it.
Last question on this, the defense, part of their theme has been that they claimed that this was all transactional sex and it was part of a time in which, you know, Hollywood was, when Harvey Weinstein was at his most powerful. And it was all about being being granted access and, you know, to powerful men and powerful men in exchange for sex. It's hard to deny that that was a culture that existed in Hollywood. Do you think that this argument is persuasive? Does it hold water?
Renato Mariotti:
[0:32:44]
Well, I think that some of the best defense arguments often appeal to the non-reasoning part of our brain. In other words, the sort of whether it's a bias, whether it's a pre-existing idea, something that just hits people in their gut. And for people who have, I would say, you know whether it's a prejudice or they have just longstanding views, it may appeal to them. I think, you know, there's a lot of good reasonably, it's maybe a distasteful strategy, but they're, you know, they’re aggressively doing what they need to do for their clients, so I get it.
And I think what they're trying to appeal to is a certain brand of juror who's going to think it's their fault, and it's the victim's fault, and they were asking for , and they – this is what they wanted. She knew when she went up to his room what she was doing, and so on and so forth. And so I think, I think it may make sense as a defense strategy, but it's understandably, you know, controversial and condemned by me.
Joshua Ritter:
[0:33:42]
Yeah. Certainly not, like you said, the typical strategy that we see employed in these types of cases. But maybe this high risk will have high reward. We shall see.
I appreciate so much your comments, Renato. Thank you so much for coming on this week. Where can people find out more about you?
Renato Mariotti:
[0:33:58]
Well, definitely everyone should check out my own podcast, It's Complicated, with my friend Asha Ranggapa who also does a lot of legal analysis, my former Yale Law School classmate. And then you can also find me on Twitter, @RenatoMariotti. Very hard to spell, but R-E-N-A-T-O is my first name, Mariotti. And you could find me all over the place. If you Google, you'll find a columnist in Politico and elsewhere.
Joshua Ritter:
[0:34:22]
Fantastic. And I'm your host, Josh Ritter. You can find me on Instagram and Twitter, @JoshuaRitterESQ, and at JoshuaRitter.com. 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.
