Steve Palmer: All right, here we are. Lawyer Talk. They don't teach you in Law School. Special edition. We got two guests, Troy, usually with me, but, uh, here we have Bella. Bella, why don't you do. What's your. What's your name? What's your last name?

Bella Mata: Bella Mata.

Steve Palmer: Bella Mata. So we have, uh, two law students here for my or this ongoing Lawyer Talk series. They don't teach you that in Law School. Uh, you can check us out, by the way, @LawyerTalkPodcast.com or on all the socials. You see what I did there? All the socials. I'm cool. You, um, can leave comments if you have your own questions or if you're a law student and they're not teaching you something that you want to learn. Uh, shoot us a comment, shoot us a question. We'll address it, but we're going to jump right, uh, to it here. They don't teach you this in Law School. And you guys, everybody's learning law now through Netflix, the series, the Menendez series. I've gotten tons of questions about this stuff, not only in my upstairs life, my personal life, and now here at the podcast life. So go ahead, guys. So in Law School, Look, I remember being completely confused by all these terms in Law School. Like, what is probation, what is parole, what is clemency? What are pardons? You know, how does, what. How does this all work and how does it all go down in the men? Uh, the Menendez brothers case is probably a good enough place to start. So shoot. What's. Uh, let's kick it around.

Bella Mata: Do you want to start?

Troy Henriksen: Sure, why not? So the first thing would be. We kind of talked about this earlier was the resentencing. How resentencing is a thing in California, but, like, not in Ohio.

Steve Palmer: Yeah, resentencing. So look, first of all, you're onto this. So a lot of this stuff is governed by the individual State law. So we have two general big pictures of jurisdiction in our country. You have the federal jurisdiction, then you have the states. And within the states, you have all the different localities from, uh, down to municipal and local courts. So this is a California law thing. In Ohio, for instance, um, well, let's back up. You have the, uh, da, the district attorney out there saying he is going to petition, uh, for a re sentencing. No such thing would occur in Ohio. There is no procedure in Ohio to allow a prosecutor to petition to have somebody resentenced, particularly in this, this situation after serving, I don't know how many, 20 some years in prison. These, uh, Boys have served. So there wouldn't really be any procedural mechanism for this. So what is a resensing? From what I can tell, it's a chance for the prosecutor to go in and sort of change things after the fact. So, you know, in law, the fancy Law School words might be something like nuncked pro tunct. Have you ever heard of that one?

Troy Henriksen: No, never heard of her.

Steve Palmer: All right, so check out your blacks. So we have. There's something in Law School called a black's law dictionary. These people don't read it, apparently. Um, but nunct pro tunked. I think it means this for that, where you go back. It's in Latin. You go back and you change something after the fact, and you amend a sentence. Or it's a. You've heard the term legal fiction? No. Yes. Maybe. Lawyers create legal fictions all the time where it's really one thing, but we're going to act like it's another thing, and it's called a legal fiction. So, Troy, you've seen this upstairs in our law practice where we go in and we amend a charge to something else. Uh, so we just say this is really going to be a trespass instead of maybe an aggravated burglary. And the trespass elements don't quite fit, but we're going to make it up and act like it does. Uh, that's illegal fiction. As long as everybody agrees it's okay, we can do it. We do it all the Time. Uh, and this sort of resentence or this resentencing is sort of something like that where the prosecutor is coming back and saying, we are going to resentence these boys on my motion, and we're going to resentence them, it looks like on. There's a couple different ways they can do it. So the resentencing. Let me. Let me stop there. I do not profess everybody to know the California procedure, nor do I care to know the California procedure, but I'm giving my Ohio take on it. The prosecutor is asking the judge to change what the charge is to a straight murder case instead of their more enhanced murder case, whatever they were convicted of. What that does is that changes the, uh, statutory or the legal sentence that can come from there. So in Ohio, there are murder charges or aggravated murder charges that carry as much as the death penalty. Um, or you can have a lesser murder. That would just be 15 to life. So if you are sentenced to. In Ohio, to something called life without parole on an aggravated murder, m. And if we're going to apply the Ohio or the California procedure to Ohio. Uh, the prosecutor could in theory come in and say, judge, I want this person resentenced on straight murder. That makes them, that makes the sentence 15 to life and makes them eligible for parole. All right, we'll get to parole in a second. But that's the procedure. Now. It looks like Garrigos, their lawyer, you have Gasson, Gascon and Garrigo. So we have these, you know, these, these crazy, uh, names, but the defense lawyer saying, I want him resentenced on manslaughter, because then they get out right away. Then the sentence could be just, uh, done, Time served. They get out. The prosecutor is sort of suggesting now, let's have them resentenced on straight murder, then they're eligible for parole. The difference being, obviously, if it's a manslaughter charge and say the max was 15 or whatever years, they've already done it. They get out. If it's a, ah, straight murder charge, uh, it just may, from what I'm reading, it makes them eligible for parole or eligible for release. Then these boys have to go through, I presume, the parole board in California or whatever reviewing body to determine whether they should be released. Um, so that is. And we'll go, we'll sort of Circle back to how that happens later. The other thing that's going on in the Menendez is something called clemency. Um, and everybody, when they hear clemency, I don't think anybody knows what it means really, but, uh, I'm going to tell you what it means. So clemency is when the governor of a State changes the sentence or modifies the sentence or does something to, uh, uh, lessen the impact of it. Uh, and what they're looking for is clemency so the governor can come in outside the criminal justice system. The executive branch is coming in and say, I'm just going to change this on my own authority and I'm going to grant clemency. So everybody, if you've ever read a Grisham novel or watched a movie where there's a death penalty about to be imposed, and they're petitioning the governor and they're waiting on the phone call from the governor of the State. There's a great Clint Eastwood movie. It was written, actually a Book by Andrew Clavin. But anyway, there's a great Clint Eastwood movie, um, where he's a reporter and he's trying to stop this. And they're waiting on a phone call from the governor, uh, to grant clemency. To basically either stay or postpone the death penalty until they figure it out, or just get rid of the death sentence altogether and reduce it. That would be clemency. Um, a pardon is something different than that. A pardon is when the executive branch says, I hereby pardon you, and we're about to see a bunch of pardons. If, uh, Biden or if Harris or whoever loses the election on Biden's way out, he's going to pardon a bunch of people. Trump did it, Obama did it. They all do it. They've got this list of people they pardon. That means there's going to let him go. Presidential pardon. The president can't pardon somebody in State court, though. Everybody confuses this. So the president can pardon federal stuff, but not state stuff. Um, and certain states will have, uh, I'm sure, procedures for a governor to pardon state folks, state prisoners, but not, uh, the exit, not the presidential side of it.

Troy Henriksen: So is clemency like a national thing? Every state recognizes that.

Steve Palmer: I don't know. Um, my guess is every state recognizes some version of it, but it may be called something else.

Troy Henriksen: Okay. In Ohio, we have one.

Steve Palmer: In Ohio, we have a clemency. You can petition DeWine or the governor, whoever it is, and ask for, uh, whatever relief you're looking for. And, you know, we've tried. I've tried for pardons, and I've tried for clemency, and I've tried for various things. I've never successfully. It's a rare bird. Uh, but it does happen. And in this case, in the Menendez case, it is happening. Um, so the. Of the. There were. I think when Troy and I talked about this initially, there were two or three different possibilities. Um, one was we had some newly discovered evidence. So the lawyer there was, I guess, the uncle of the two boys received a letter, or the boys wrote the uncle a letter, and then they found it in some storage unit or something, and it verified the abuse that they alleged at trial. Um, and, you know, that would be newly discovered evidence. That would be evidence that, in theory, was not available at the Time of trial. That's a. That's a tricky definition because, you know, not available at the Time of trial is how Ohio would define it. That means that you. It's almost like if it didn't exist at the Time of trial, then it's new evidence. It gets dicey. When it did exist, but the lawyers didn't discover it, then you would have to ask why they didn't discover it. Um, would it be reasonably likely to be, uh, upended or you could find it in some reasonable investigation. Sometimes the prosecutor hides the evidence. I hate to say that, but it happens. Uh, so you see reversals on this kind of stuff all the Time, where the prosecutor, uh, all of a sudden the defense lawyer finds evidence that the prosecutor should have disclosed under Brady versus Maryland. Stuff that helped the defense, and they hit it. Um, that would be newly discovered evidence, but stuff that was available reasonably and readily available at the Time of trial, but the defense lawyer didn't use it. That's not new evidence. It might be ineffective assistance of counsel, which would be a different claim, but it's not new evidence. So there was some thought that they could get these Menendez boys could get back into court on new evidence, newly discovered evidence. But in the meantime, you had, um, Gascon talking about, uh, I love saying that. So you have Gascon saying. Talking, uh, about resentencing. And then you also have this possibility for clemency. So let's talk about parole for a second and probation and all. I just had this conversation with somebody, a, uh, client of mine and their Family, because it gets so confusing. We have parole, we have probation. Ohio has something called community control. And what the hell does all that mean? And they don't teach you this in Law School, because Law School tends to use sort of these generic terms. And maybe there's a good reason they don't teach you, because in practice, there's different definitions for each jurisdiction. But parole basically is somebody has gone to prison, and then they get released on some supervisory conditions. Meaning, um, all right, you've got 15 years to serve in prison. We're going to let you out after 10, but we're going to monitor you. You have to either report to a parole officer, you have to do or not do certain things like get a job, not get in trouble, not hang around with criminals. Um, those would be conditions of release on parole. Probation happens at the trial court level. So I'm going to put you on. I'm going to order you, Troy, to serve five years in prison, but I'm going to suspend that prison term and put you on probation. So you never actually make it to prison. Uh, you're just on probation, uh, from the beginning. Now, the difference is who supervises you. If, if it's the trial court level, it's local, the County or the city or the jurisdiction locally, or if it's federal court, it would be the local federal court, or the federal probation department would supervise you on probation. You would, um, report to a local probation officer. If it's parole, it's in State court. It'd be the State system. It would be, um, a State parole officer or in Ohio we have the Ohio Adult Parole Authority. That's their job is to monitor people released, um, from prison early. Now Ohio sort of eliminated and then brought it back. They eliminated these long tails. It used to be we would, when I first started practicing law back in the 90s, we would get a sentence of like five to 25 years and somebody would start their five year sentence and after five years they would start getting reviewed for release on parole. And we had the Ohio Adult Parole Authority that would come in and make recommendations, have hearings, do whatever. And then we had truth and sentencing, I think around 96ish, 90 somewhere around there. Um, and we all, everybody thought it would be a great idea just to have the stated prison term be the State of prison term. So 5 to 25 went away. So you just had the max sentence of, on a felony, the first degree. The most serious in Ohio would be three to 10 years and then eventually became three to 11 years and you would just do the number. Um, now it's gone back. We've changed that because the powers that be think it's better to have a tail again. And in Ohio we had something called Reagan Toques. Have you. We had to deal with this yet.

Troy Henriksen: I've read a ton of in the green books, the toques. Um, they call it a Toques issue or something like that.

Steve Palmer: A Tokes issue. Yeah. Right. So there was a guy who was released on from prison and then he went out and killed somebody named Reagan Tokes. And everybody, uh, got up in arms about this, maybe rightfully so, and they decided, all right, we got to change this again. We shouldn't just release everybody from prison. We should evaluate to see if they're going to be a, uh, danger to the community. So then we started to have this, these uh, obscure sentencings again. So you'll hear sentences like 5, uh, to 10 to 15 or something like that. And that's under Reagan Tokes. It's too complicated to get into it, but it creates these unknowns again. And that employs, uh, the Ohio Adult Parole Authority yet again to do what they do, which is decide whether somebody should be released or not. So I always wondered back in the 90s when they got rid of the Ohio, when they got rid of parole, basically got rid of the long tails, like why do we even need an Ohio Adult Parole Authority? Well, they found a reason to bring it back, right? So now it's back and they decide through hearings and whatever review process they employ whether somebody gets to be released, uh, from prison at the end of their term or whether it has to be extended.

Troy Henriksen: Uh, when these guys apply for parole, what role does a lawyer play in? Like, is there anything that the lawyer helps out with their applications, or is it all they do on their own accord?

Steve Palmer: Yeah, I mean, I've done some parole work. Generally, what does a lawyer do? Well, what we would do is we would, uh, we've done something, and we'll talk about this in a second, called judicial release in Ohio. It's a lot like that. So what we do is we gather character letters. We do, uh, we interview the client's families. We figure out if they have. If they were released, what would their lives look like. They would be. Have a job because, you know, Uncle Bob's got a painting company. We'll give them a job. They have a place to live because their wife and children are still at home and they still love them and they want to bring them. They'll be happy to. To let them live at home. Uh, there's a stable environment, whatever it would be. Then they'll. Then we would get a, uh, report of their institutional record. We would see what's on what they've done. How many infractions do they have? Have they been in trouble? Uh, have they, um, been in fights? Whatever the situation is, anything obviously bad is bad. Anything, anything not there is good. Uh, and we present a written motion or document or memorandum. I guess in Law School, he called a memo outlining all these things and sort of arguing why, uh, parole. This guy's parole eligible, legally speaking. In other words, done the requisite Time period. And then, generally speaking, uh, is a good candidate. And there's some. I don't know. I'm off m top my head. But there's some regulatory factors you can look at, like, um, what's his record before he went to prison? What's, uh, the danger to the community? What's, uh, the risk of recidivism, meaning is this guy going to commit a crime again, Those kind of things. And we sort of plug our arguments into those factors and submit it. Uh, sometimes you sit at hearings and it gets reviewed. There's different types of review, too, by the way. They have something called halftime review, where it's just paper. You submit a request and it's just paper. Then they have full board hearings. Um, it all depends. I don't do much of that work. Uh, I don't know how effective it is, but you could have a lawyer if you wanted one. Lawyers do get involved on parole revocations. So after you've been sentenced, after you're released on parole, uh, and you get in trouble, they want to send you back, then we can get involved and try to help with that process.

Troy Henriksen: You mentioned earlier that presidents can only pardon in a felony court, the federal court.

Steve Palmer: So a president has jurisdiction over the federal system.

Troy Henriksen: So they didn't really. I don't know if they toss this at all. I don't know the difference between why somebody's going criminal. I understand civilly why they're going the federal court. That's all they teach us right now. But what is the difference between sending somebody criminally to federal and State court? Like what, what factors have to exist?

Bella Mata: Yeah, I'm not in Crimpro yet.

Troy Henriksen: Uh, I'm not either. Maybe they do teach us that.

Steve Palmer: So look, they probably don't. And it's a good question. So federal courts have jurisdictions over anything involving interstate commerce. You know, you've learned this in constitutional law. So like it used to be in the old days, in the 30s, well, you crossed State lines, so now it's federal. Well, that's sort of true. But really what happens is you have Congress, the United States Congress passes laws, and those laws prohibit or make things a crime under the federal system. And if you violated one of those laws, then you can be prosecuted in federal court. It is also true that most state courts have similar laws. Take bank robbery is a perfect example. So bank robbery is a federal crime. Bank robbery is also a State crime. Somebody could be charged in Ohio with bank robbery and in federal court at the same time for the same conduct. With bank robbery, um, jeopardy is not going to get in the way of that. Ordinarily we can work it out. Ordinarily, I'll call one or the other and we'll just run them together. Or one will take it, the other will not. But what makes it federal? One has to violate a federal law, and two, the federal prosecutor has to be interested. In theory, every single low level marijuana case could be a federal case. But they don't have time for that nonsense. They just don't have the resources that's better handled at the State court level. Um, another big one is child pornography cases. And a lot of times you'll have these joint task force task forces, tasks for whatever it is you have these joint task forces where it's like federal and State officers get together and they investigate online for child predators. Um, and then they catch people. Everybody's seen the Dateline stuff where they grab people. I mean, that stuff happens and there's cops that actually do that stuff. And, uh, then they have to decide where the case is gonna go. Sometimes you have the federal prosecutor will pluck it up, sometimes the State court prosecutor will pluck it up. And sometimes it's better in State court, sometimes it's not better in State court. It all depends. Um, so you just have to. And you know, a lot of the work I do in those types of cases is figuring out who's gonna take the case, the feds or the State. And is it better or worse? Sometimes a dope case is far better in the feds because the. They have sentencing guidelines and other things that aren't going to make it as, uh, as severe. Other times it's the opposite. So it really all depends. But I don't. It's not that I get a say, so I don't get to pick it. Sometimes I just have to try to manipulate it.

Troy Henriksen: So the Menendez brothers, their prosecutor was a State. Um, the federal prosecutor just didn't have any interest. So even if, like, Joe Biden really liked the Netflix documentary, he can't even pardon them just because they're in a State court.

Steve Palmer: Correct. And that case is a State court murder case. There are federal murder, the federal court or the federal law. The U.S. code has some murder, uh, statutes, but it's not as widely applicable. Uh, um, like anything in State parks that can be a federal murder, because it's. Or not State parks, federal parks, national parks that can be a federal murder. Um, if it's a federal agent, can be a federal murder. And there's like four or five other ways you can get a federal murder. But generally things like murder and street crime, that's all left to the states.

Troy Henriksen: Have you ever seen Wind River?

Steve Palmer: Uh, Wind river, is the. Is that on. That's a Netflix or that's a series on a reservation.

Troy Henriksen: Um, it's a movie on a reservation where they murder. There's a murder on a reservation. And they're sending the FBI and all that because it's just. It's on, like, federal land, I guess they say.

Steve Palmer: Yeah, that would give you some federal jurisdiction. Yeah. Um, but it's. And that has like. Then you get into this other thing about the tribal jurisdiction. You know, that gets a little dicey. But, uh, yeah, there's. There's different ways that can go in federal versus State court. And sometimes we get to say so sometimes not so much. And sometimes it's better in One, but not the other.

Bella Mata: So a case like the Menendez brothers, you said in Ohio we don't have re sentencing, Correct? Right. So how would that look? Would they just do a retrial or is it just kind of like whatever you were.

Steve Palmer: No, I mean, it's a good. That's a good question. Like what's. Let's put the Menendez brothers in Ohio. What would we do? Um, so you've got two boys serving life sentences, no possibility of parole, I believe here in Ohio. And then something happens where we have new evidence or, uh, interesting evidence come to light. We've got this letter to an uncle that says it verifies the abuse that the prosecutor at the Time of trial sort of said, yeah, hogwash, they're just making this up. They're just cold blooded killers. But now we've got some evidence that verified it. We would be making a claim, we would be filing. I guess the best way to answer that question is to look at it. Let's turn back the clock. Right after their trials, they were convicted at trial. They then had something called a direct appeal. So they went to the court of appeals arguing about all the legal issues. Then they went to the Ohio Supreme Court because they lost a direct appeal. And the Ohio Supreme Court said, yeah, I'm not going to. We don't think there's any issues there. We're going to affirm it. We're not going to do anything about it. So then at the same time they went through something called post conviction or habeas corpus in State court, where they're looking at other evidence, things that are outside The Record, uh, and sort of going up the same appellate ladder. And they lost all the way up. Then they go to federal court on something called habeas. Federal habeas corpus. And, uh, they lose there. So now they're done, they're just serving their sentence and it's all over. But then you get this letter years later. And we get calls like this upstairs, Troy, all the Time. In fact, I've got one in my messages. I got a call back today. You know, my so and so relative is serving, uh, a 25 to life sentence and we want to talk about getting him out. And the last appeal was in like 2010. I'm like, uh, yeah, it's, I feel for you, but we're stuck. We're at the end of the appellate road. Um, except if there's new evidence. Sometimes new evidence comes to light. This, um, might qualify. So you can go back in theory to the trial court. And file a motion for a new trial based on newly discovered evidence. It's a long shot, and we would have to establish that the evidence in Ohio was not available at the Time of trial. I don't know the circumstances about this letter, whether it was available or not, but we would be making that argument. We would say, look, we, uh, interviewed the uncle at the Time. Here's our investigative notes. The uncle didn't tell us about this. We asked and he didn't tell us anything about it. Which could cut both ways later on the veracity of the letter. But, you know, we tried. All reasonable efforts were made, and we still didn't learn about this. So it was not reasonably discoverable at the Time of trial. Therefore, uh, it's new evidence and it's enough that we have to reevaluate whether the conviction was fair and the trial court will make a decision for a new trial. Now, here's where it gets interesting, because let's say that the prosecutor agrees and says, look, judge, in all honesty, we argued at trial that this letter or that, uh, these boys weren't abused. It was our theory at trial that they were making this up and they're really just cold blooded, calculated killers. And now this letter seemingly just, uh, blows that theory out of the way. So we're empathetic to this. We think, uh, there should be some relief that opens up a little seam to get stuff done. Um, so the prosecutor may actually come in and say, judge, we'll agree to a new trial. And then behind the scenes, I start negotiating. I say, look, if you agree to a new trial, we'll agree to plead guilty to, uh, XYZ. They've served 25 years. We'll call that Time served. That's probably how I would handle this in Ohio and now in Franklin County. Hats off to the Franklin County prosecutor's office. They have something called a Conviction Integrity Unit. Now look, I take my hat off because it's at least something. It's far from perfect, but it's something, um, I don't think they actually. It probably doesn't get as much traction as it should. And I tend to think that those types of units ought to be outside the prosecutor's office, not inside the prosecutor's office, because, let's face it, they're human. They're telling on each other they're not going to do it. But uh, anyway, in theory, they have a Conviction Integrity Unit. And what that unit does is it reviews stuff like this. And they say, look, there might be something here. There might be new DNA evidence that matters. There might be new witnesses that come forward, and we're going to go review the conviction. Um, Paul Scarcella, one of our. One of my colleagues upstairs, he's working on one of these Integrity Unit cases now, where some. It turns out some. There was some memos and some reports that the police for. I'm not going to cast any aspersions, but for one reason or another, didn't send those over, and the defense team didn't have them. They found different blood at a place where the people convicted it shouldn't have been. You know, I'm not going to. I don't know all the details, but they found somebody else's blood in a place where the bodies were found, and it wasn't our client's blood or his client's blood. So it tends to suggest there was a defense there, there was maybe somebody else there who did the crime. Um, so they're going back in with this newly discovered evidence, or, uh, in that case, a Brady violation where the evidence wasn't turned over and should have been. So in Ohio, that's how it would have been done. But there is no resentencing.

Troy Henriksen: Okay, um, with the new evidence for the Menendez brothers, they're in there for 34 years. Isn't this argument the state can make is that they weren't making continuous efforts to find this letter? Isn't that a thing?

Steve Palmer: Um, well, yes, sort of. You were going back to this idea that, um, uh, and you guys understand by now, I hope, that the law a lot of times is just about definitions. So you take a term like newly discovered evidence, and you stick that out into the real world, and people think, well, I just found it. It's new. Not so fast. Newly discovered evidence is evidence that you could. That was not reasonably available at the Time of trial. That's different. So if it was reasonably available at the Time of trial, then it is, by definition, not newly discovered evidence, even though it's newly discovered by the Menendez boys. Um, so let's say that the prosecutor is basically arguing in your scenario, look, this is not new evidence because they have not taken reasonable efforts to find it over the years, and now they just find it. The defense is going to say, whatever, we just found it because this guy died, and we're going through a storage unit, and he had it stored in some box up back in the corner, uh, underneath his, you know, grandma's war, whatever. You know, it's like it wasn't available, and there's no reasonable efforts we could have ever taken to find it. So that argument doesn't, uh, hold water. On the other hand, it may be true that if you have a witness that was available that the defense actually identified or was disclosed in discovery and the defense didn't interview that person, you're going to get a little bit more blowback on that one. Because the defense team should have interviewed witnesses. This is why when we get a case upstairs, we're doing it right now. I said, find this witness. Schedule a time where I can talk to him. I need to get him interviewed. Why? I already know what I think I know what he's going to say, and I think I have an idea of where it's going. But let's say there's a little bit extra out there and I didn't interview the guy. I haven't done my job. Our job is to interview the witnesses, figure out what's going on, and defend the case. And that's why we have investigators. That's why courts have to pay for defense investigators when defendant, when, uh, defendants can't afford it. Because we have to go out and do these things. And if you don't do these things, you now see the consequences of it. Like it's a big deal. So if I don't interview witnesses and I say, yeah, ah, no big deal. And then 15 years later, after my guy's doing 15 years or 17 or however long in prison, it comes up that this witness had some information and I didn't interview him. Well, it's not only that I screwed up, it is that this guy now has a big problem because it could have been done and it wasn't. I think I've exhausted the question.

Troy Henriksen: I mean, the one thing I was going to add on. Can't you raise the argument? Ineffective assistance accounts?

Steve Palmer: Yeah. Then it becomes an ineffective assistance to counsel. So what you've done is you have the issue and then it gets sort of watered down to like a newly discovered evidence issue. And then you didn't discover it. Now it gets watered down yet again to ineffective, uh, assistance. So each one of those has its own standards that you have to surmount. And ineffective assistance of counsel. Do you guys know the case? You probably do, Troy.

Troy Henriksen: I don't know the exact case.

Steve Palmer: Strickland versus Washington.

Troy Henriksen: Okay. Yes. No, I do.

Steve Palmer: Yeah. There's a two part test, right. It has to be deficient performance. Counsel had to do something wrong. Counsel either didn't, uh, do something that he reasonably and ordinarily should have based on community standards or based on Defense attorney standards. Um, and then the second half of it is prejudice. It has to have some impact on the outcome of the trial such that it undermines confidence in the verdict. Okay, what does all that mean? We'll read the 50 years of case law that talks about it in all the various jurisdictions. So you have to first. So now is it ineffective assistance of counsel that this guy didn't interview witnesses? And because he didn't interview witnesses, do we have this newly discovered evidence after all? And it only gets to the question washed through ineffective assistance, particularly the prejudice prong of Strickland that what, how would that have changed the trial? So it's not only that he didn't do these things, it would have had to have an impact on the trial. Now we would be arguing, I'd be pounding the table as hard as I could. Wait a minute. The state's key theory. The State came into court, came into court pointing at these boys, saying bs, bs. They're cold blooded, calculated killers and they're playing this song and they want you to get looking for sympathy. Uh, get your violin out, folks. Because they've been abused. Well, guess what? There's no evidence of that. There's no witnesses that are going to say it. The only corroborating evidence of that are these two boys themselves. And these are the two boys who killed their parents. Well then all of a sudden I'm going to. Then I would say, well, wait a minute, if that's their theory, what about this letter? So how, like if they come into court with that nonsense and I can say, yeah, but I got a letter that they wrote two years before, before there was even a thought, a glimmer of thought of killing their parents, complaining to their uncle. Get us out of this. I don't know what it says, but get us out of this house. Life is horrible. We're being abused. Now the prosecutor is going to turn around and say, well, that's because they were planning the murder. And we're going to say, yeah, well, it still would have changed the outcome because it undermines the prosecutor's theory of the case. I don't know how the judge would rule on it. That's where I said, we sort of got to open up the seam here and go talk to the prosecutor and say, all right, look, it's 25 years. Is 35 years enough? What's enough? Right? You know, let's. Even if you don't, you don't even have to agree to it. Uh, let's just figure out some way to get them out. And so now you've opened up the procedural seam, and we're going to drive a truck through it to try to get our boys out. That's sort of how. And it looks like that's what's going on in California. And I think what's really happening is this DA is probably under some attack. So add politics to the equation. I think he's under some attack for being soft on crime or not being popular, or maybe his, uh, chances of keeping his job might be in jeopardy. And maybe, just maybe, this type of publicity, empathizing with the Menendez boys, maybe that'll be helpful for him. Maybe he's thinking that. So he picks up the phone and calls Gavin Newsom and says, hey, look, Gav, I'm in trouble down here.

Troy Henriksen: He calls him Gav or like, G Money.

Steve Palmer: Hey, G Money. Hey, Gn. I know we had this great dinner at the, uh. Where'd they go for the. During COVID They all got in trouble. But anyway, we had this great dinner together. We all got in trouble together. I need a little helping hand here. Look at the Menendez case. And if you pardon them or grant them clemency and let them out, it gets us all off the hook and everybody's happy. Why, um, don't you take a hard look at it? Look, I don't know the backdoor politics, but it exists. You know, anybody who thinks otherwise is just sorely mistaken. I mean, it exists. And, uh, whatever forces at play, all the defense lawyer wants is to get these boys out because. Not because he. Look, does he care? Yeah, I suppose he cares, but he's doing. It's his job. It's our job to get these people out. You know, they pay us for a job, so we go argue and advocate for our clients, and we want to get them out of prison. It helps. It helps if there's a good reason to get them out. Um, but that's. That's what we're paid to do. So, however. However we get that done within the confines in the bounds of the law, of course. Uh, and I'm not talking about bribing people. We're just talking about finding a seam, exploiting it, and making a deal. And that happens all the Time. Now, if that doesn't happen, we got to go have a hearing, and the judge is gonna say, this is probably worthy of discussion, actually. So we go and say, we got new evidence, Judge, and the prosecutor is going nowhere. Or, uh, the prosecutor's got no agreement for us. They're fighting it all the way the case we're working in the County, out east in Ohio is like that. Everything we do, um, is a dogfight. So we go have a hearing, we present our case, and let's say the trial court agrees and says, you know what? That is new evidence. And I think that would have changed the outcome of trial or at least impacted enough. So I find prejudice, and I'm going to grant a new trial. After 34 years. Then we get to go bargain again, because the last thing the prosecutor wants is to retry the Menendez boys 34 years later. Um, or the judge says, no, denied. Now, we appeal. We go to the court of appeals, and the court of appeals says either yes or no. And then we go to the Ohio Supreme Court. And if the Ohio Supreme Court denies relief, we can either go directly to the U.S. supreme Court or go back to habeas corpus and get into the district courts in federal court and then go up the federal, uh, appellate ladder. Uh, so it basically gives them a new round of hope.

Troy Henriksen: I feel like Netflix would prefer they do a new trial that give them a lot more content.

Steve Palmer: Well, look at, uh, what was the case making? Um, a murder. Or do you remember that one?

Troy Henriksen: Making a murder?

Bella Mata: Yeah. Candace Owens came out with that, didn't she?

Steve Palmer: Well, Candace Owens sort of debunked it, but the Netflix series Making a Murder, so they, like, they followed this conviction. Netflix followed this conviction and sort of. And monitored it up the appellate ladder. So it made good. It made for good storytelling. Press, uh, all the way through, and it had some sex appeal in the case. It was interesting factually. And, you know, they dramatized. And Candace Owen, in theory, exposed, uh, some of the. Yeah, some of the, uh.

Troy Henriksen: What was the case?

Steve Palmer: It, uh, was a murder case up in, uh, Wisconsin. Or was it the. Was it Wisconsin? I believe it was. I don't remember. Dude, you're way out of it. Okay? This was popular, like, five years ago. Everybody loved it. It was the talk of the town. But, uh, and it's worth watching, but Candace Owens comes out with her own series and says, look, they left out a whole bunch of stuff. Um, this guy was really guilty. This is what they didn't tell you. Fair enough. I mean, but I think my point of all this is like, nah, I mean, Netflix like the appellate story on that one, and you can sort of tell this tale. So if the Menendez boys don't get out, they'll follow it up the appellate ladder. Um, if it's a retrial, you know, great. That's like the sensationalism of the century again. But my guess is in that kind of case, if they don't get out and something is filed like this, let's just sort of take that and put it in Ohio. If I get that case, if I get the door opened in State court again and there's even a hint that I'm going to win, uh, there'll be a deal, there'll be a Time, because, you know, what, 35. How much Time have they done?

Troy Henriksen: 34 years.

Steve Palmer: 34 years. A hell of a long time to serve in prison, right? Yeah, it's just, it's a long Time. And I think even, you know, at the Time, it was, uh, you know, the system was different, the politics were different.

Bella Mata: I was gonna say that I feel like at that time it wasn't as common for us to recognize that, like, boys could be taken advantage of too. So I feel like that kind of played a role in it where they just figured that the boys were lying because it was kind of like, unheard of.

Steve Palmer: Yeah, I think, you know, I think you're exactly right. And I think there was this tough on crime stance back then. And m. You bring up an interesting theory or an interesting topic because I think, as I always say this, as society changes, the legal system changes, and sometimes the legal system pushes society because the legal system is sort of like on the string of the politicians, and then sometimes society pulls the legal system. Uh, it's like, it's not a lineal thing. And what we're doing now in the Menendez case is taking our lens and looking at it 35 years later and saying, all right, how do we look at this now? And it's different. You know, maybe it's true back then that the prosecutors were like, this is a bunch of bs. Boys don't get abused like this. And they just, they're just cold stone killers.

Bella Mata: Do, um, you think also with the OJ trial being around that Time that, like, they faced a lot of backlash in that jurisdiction when he was found not guilty? I think that's that, uh, they wanted to be like, real strict on after that.

Steve Palmer: I would. I was thinking the same thing. Is right before you asked that question, I wonder what impact OJ's acquittal had on the Menendez conviction. Or better, the better quote, what you're really asking is the prosecutor's interest in getting a conviction in the Menendez case. Um, you know, they just got egg on their face and oj so now is this like a way to get some redemption, maybe? You know, maybe, um, I don't know the players back then, and I don't know enough of the local politics that were going on, but it wouldn't surprise me. And again, we had a different viewpoint on crime back then, just generally speaking, and certainly on abuse. And look, there was a, uh. Back in the 90s, we started to emerge with these defenses, like battered women's syndrome or these sort of psychological defenses. And, uh, back in the 80s and 90s, that emerged, and then we had a bunch of defenses based on, um. Um, we call it like the Prozac defense, where people were taking these psychotropic meds, because those are just. Those. Those were just coming of age in the 90s, and, uh, they were causing all sorts of craziness. So we defense lawyers were raising those types of defenses. You know, times change, and, you know, we try to get creative within. That's why being a lawyer is so interesting, because you have, um, you get these opportunities to get creative within the system and push the bounds. And if you've ever studied common law, they don't teach you this in Law School anymore either. We used to have the. I learned the common law system going way back, uh, to France and England and how it developed under, like, Henry I and Henry II in England. And, you know, it's fascinating that as the law changes, people change. As people change, the law changes, and it sort of expands and grows and it creates its own law common to the community that we all can sort of understand and believe in because it's based on a lived experience, not a dictator.

Troy Henriksen: So I think the only common law we'd have to do is property. That was, like, the only one.

Steve Palmer: Well, contracts is based on common law. Property is based on common law.

Troy Henriksen: Well, I imagine torts. Yeah, that's the only one we really got taught was common law and property.

Steve Palmer: You, uh, learned Torch, right?

Troy Henriksen: Yeah.

Steve Palmer: So Torch is common law. Duty, breach, causation, damages.

Troy Henriksen: So did I get that right? I mean, yeah, but when you're saying the common law, I'm thinking of, like, France and England. Like, we learned, like, they're basic.

Steve Palmer: Sure. Well, look, so there was a time in the 70s when we didn't have, uh. Uh, I don't know when. Ohio Revised Code. There was the Ohio Code, and then the Ohio Revised Code. But take, like, west. I think in West Virginia was the last one, but they didn't have a code. It was still common law. You would just look at decisions and say, here's what the law is. Oh, wow.

Bella Mata: Isn't Louisiana like that?

Steve Palmer: It Might be. It might be. Uh, and that's probably got a huge French influence, too. That's what. That's. It's fascinating stuff. So you couldn't just look up what the code says about torts or what the code says about contracts so that we didn't have a ucc. It was just what the. How it. How was that treated last time? And here's what the elements are. So that was a, um. You know, those are. Those are interesting explorations, but for the most part, the elements of these things are all based on what the common law used to do. And now we've just written them down and we call them codes. We call it a US Code or the Ohio Revised Code or whatever state code there is. And I guess it's worthy of. We've talked about habeas corpus and some of these sort of extra remedies. It's typically called equity. And I'm not talking about, um, the kind of equity that the politicians are banging around these days. I'm talking like there was a. If you go back to the common law, there was a time when the king would sort of ride around the countryside, and if you wanted the. If you got some injustice at the local level, so your lord, you went to a manor court, and, um, it was decided unfairly because the person with whom you had a dispute paid off the lord or it was corrupt for some reason, then you would wait on the king to come around and fix it with equity. And the old saying is, if you want equity, you better come with clean hands, meaning you can't. Also, if you want the king to fix this, you better be clean, too. So if you try to pay money to one guy and the other guy paid more money to the other guy, where he had more people swearing on his behalf than this guy had swearing on his behalf, and you both paid them all off, well, the king's not going to fix that. But if the king comes around and senses an injustice, he can fix it. And Henry ii, I think, was sort of like the key, sort of ingrained this idea of the king's justice coming around and, um, created a more cohesive system because then it got standardized. But these habeas corpus type remedies, that's equity. That's a distant relative of equity. We are going to come in. Even though the law convicted properly the Menendez boys, there's some equitable remedies that we're going to throw in here to try to fix it and make it right. Because something wasn't fair at the Time. And that's, in theory, the basis, uh, applying criminal law to it anymore. Have we exhausted it?

Troy Henriksen: Sounds like it.

Steve Palmer: I think so, yeah. I guarantee you they don't teach you any of that stuff in Law School, which is the point of this. And look, I don't mean to impugn Law School, although I sort of do. Um, I do in the sense of this. I think it would be really helpful for everybody to get out of Law School, to have to go serve some Time, and I'll say it that way. Serve some Time in a law office and really learn what. How it. How it applies to the real world. Really get an idea of what it. What it looks like. Because you're learning all these things and you read these art. What's frustrating for me when I was in Law School is I would read this stuff, um, and people would ask me, like, my buddies, hey, you're in Law School. Don't you understand this? And you're like, well, they don't know. Literally, no, I don't know what the hell that is. And it's because you're learning how to learn in Law School. You're learning a system, you're learning a language, you're learning a way of thought, but it doesn't teach you all of the practical applications of that. And the more you learn, the more you realize you don't know. Uh, but the more you learn in Law School, the more you realize you can know. And that's what makes Law School such a valuable education. And then you get frustrated not by what you know or what you don't know. Once you start to get in the real world, you realize how much everybody screws it up. So I read these articles. I'm like, yeah, they got it all wrong. Even the legal commentaries or legal commentators, a lot of them have never practiced. They don't know what the hell they're talking about. Even, um, guys I really like, I'm like, yeah, that guy never practiced law. And it's obvious, because they don't teach you that in Law School. And that's the point where I have commentators say things like, well, every defense lawyer knows that your client never testifies. I'm like, no, no, that's not right. So your client testifies when he needs to testify, and he doesn't testify when he can't. Right. That's the rule. Um, and what does that rule say? It all depends. Right? So there's no hard, fast rules on this stuff. But, yeah, look, this is, I think, what I don't like about Law School is. They don't mandate this. Some used to. Some used to say, you have to go do an externship. Um, and you're doing one. I guess you're getting credit for the work upstairs, but, um, your eyes will open that much faster once you're exposed to this whole other world of how it applies, practically, anyway. Well, I think that'll wrap it up for this episode. And, Bella, by the way, thanks for joining us. I hope you can again. So what you need to do is start writing down your questions and bringing them to the table here, because this is a blast for me anyway. Um. All right, well, with that, uh, we are Lawyer Talk. They don't teach you that in Law School. And if you've got your own question, if you. Like I said, if you're in Law School and they haven't taught you something that you want to know, shoot us a comment. Shoot us a question at Lawyer Talk podcast dot com. Uh, but if you don't, we'll be here next week, each and every week, at least until now.