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Vol. 3, Iss. 5
March 19, 2014



If Mistrial, an insiders’ look at the criminal justice system, contained nothing but the six pages in which the authors skewer legal commentator Nancy Grace, the book would be well-worth the price. That being so, think of it as authors Mark Geragos and Pat Harris giving you 268 extra pages for free. Geragos and law partner Harris team-up in Mistrial to bring you their take – through the lenses of their long careers as criminal defense attorneys -- on an incalculable number of facets of criminal practice. But this is no Crim. Pro case book.

Of course, Geragos is easily one of the best-known lawyers in America. He has a long list of celebrity clients, including Michael Jackson, Chris Brown, Winona Rider and Mike Tyson (and the list on his L.A. firm’s website goes on and on) as well as clients that became celebrities through their legal woes, such as Susan McDougal, Gary Condit and Scott Peterson. Geragos has himself achieved celebrity status on account of his frequent media appearances--especially cable news where he has long been a fixture providing commentary on the case du jour getting the media’s attention. He is currently in the midst of a test run in which he is co-hosting a new show on CNN – Making the Case (Mondays, 10:30 PM EDT). Here he and co-host Sunny Hostin (taking the prosecution side) debate current cases and legal issues.

Coincidentally, speaking of Geragos’s celebrity clients, as I was writing this it was announced that singer Chris Brown was arrested in L.A. after allegedly being booted from a court-ordered drug rehab program. Brown is on probation following a June 2009 plea to felony assault of then-girlfriend Rihanna. Geragos represented Brown in that case [after asking his seventeen year-old daughter who he was] and is now handling Brown’s latest run-in with the law. I was concerned that Chris Brown’s troubles could nix my call with Geragos that had been scheduled for the day after his arrest. I found myself following the story on TMZ to try to figure out if it could alter Coverage Opinions scheduling. [First time, and surely the last time, that Coverage Opinions and TMZ are mentioned in the same sentence.]

Geragos has plenty to say in Mistrial about his celebrity clients. He’d better. You don’t represent the granddaddy of all celebrities – Michael Jackson -- for eighteen months and then write a book without providing some behind the scenes stories. That would be like buying a lollipop and only getting the stick.

Geragos kindly agreed to give me some time to discuss Mistrial and a couple of important cases of his against insurance companies for coverage. His schedule is beyond frenetic -- as I saw over the course of a week trying to find a time to speak. He was able to do it on Saturday afternoon. His assistant told me on Friday that she would let me know what time after she finished arranging his Saturday schedule. The next time someone tells you how busy they are, ask them if they need an assistant to arrange their Saturday schedule.

Geragos was very gracious on the call, we shared some laughs, he answered all of my questions and was patient with me when I needed to stop for a second to finish taking notes – explaining to him that I’m not a journalist; just an insurance lawyer. I began with a Request for Admission: Admit that you owe all of your success to spending your formative years living in the suburbs of Philadelphia. Geragos is a graduate of Haverford College. He admitted it, as well as that he owed his success to riding the “Paoli Local.” Coincidentally, this is the train line that I’ve taken to and from the office for the past seventeen years. It hasn’t been called the Paoli Local for years so I got a kick out of hearing Geragos use that long-ago name.

Mistrial – An Inside Look At How The Criminal Justice System Works… And Sometimes Doesn’t

Geragos states in the introduction that Mistrial is a behind the scenes look, as never before, of the criminal justice system. The idea is to give the reader a glimpse of the good, the bad and the ugly. Think of it this way. You watch a lifetime of baseball games. But despite how badly you want to, you never get to hear what gets said between the pitcher and catcher during a mound conference. Mistrial lets you in on the criminal justice system’s mound conferences.

The authors set out to achieve their objectives by generally focusing on several areas: (1) why the criminal justice system is becoming unfairly weighted toward the prosecution; (2) how defense attorneys, prosecutors, police officers, judges and juries act; (3) a look at some of their cases involving celebrity clients; (4) the role of the media in the criminal justice system; and (5) a discussion of various legal issues and aspects of the system. The authors close with ten suggestions on how to improve the system.

The book covers a lot of ground. But it has one theme: the criminal justice system is becoming unfairly weighted toward the prosecution. The authors set out a thorough explanation for holding this view, focusing on three events in the 1980s and 90s. Namely, the politicization of the justice system, i.e., political candidates cannot afford to be branded as soft on crime; the O.J. Simpson verdict serving as an “I told you so” moment – look, murderers are going free (the authors say that Simpson did it); and television commentators pandering to the O.J. crowd and ranting and raving that the court system is stacked against the victim and for the defense. In this category is Nancy Grace, who the authors call “the poster child for mass hysteria.”

The authors have more to say about Grace – “Every circus has to have a clown, which brings us to Nancy Grace.” I don’t want to spoil it for anyone so I’ll stop there. I asked Geragos if Grace had anything to say to him about the unflattering portrayal of her in Mistrial. He told me that he ran into her several months ago at CNN’s Hollywood studio and she yelled at him and then gave him a hug.

While the authors lament that the criminal justice system is becoming unfairly weighted toward the prosecution, I asked Geragos about prosecutors’ gripe that it is becoming more difficult to get a conviction because of the so-called “CSI Factor.” This is the argument that, despite a mountain of circumstantial evidence pointing toward guilt, jurors won’t convict unless they see forensic evidence along the lines of what is portrayed in shows like CSI, such as fingerprints, DNA or some carpet fiber from the murder scene found on the defendant’s jacket.

Geragos did not take well to this. He told me that the CSI Factor is “non-existent.” The percentage conviction rate in federal and state courts has been in the high 90s for the past 20 years. So where’s the CSI Factor, he ask me? He called the CSI Factor “sour grapes” and the last act of a desperate prosecutor looking for something to blame for a loss. Geragos also had this to say about prosecutors – It is the “easiest job in the world” and a monkey can do to as long as you can teach it to say “what happened next.”

Celebrity Clients

If you are looking for some juice about celebrity clients, Mistrial delivers—with the most words saved for Scott Peterson and Michael Jackson. I won’t say much about this here to avoid being a spoiler for these wonderful insider accounts. But I couldn’t have Geragos on the phone without having him say something about each case.

Geragos and Harris represented Michael Jackson for eighteen months after he was arrested for alleged sexual assault of a fourteen year boy. However, they did not get to try the case. Michael’s camp was uncomfortable with them representing Scott Peterson and Michael at the same time. Michael was acquitted. Geragos and Harris acknowledge that some of Michael’s behavior around children was odd. However, they are steadfast that he was “absolutely 100 percent innocent” of the charges. [Very clever boys. I got the O.J. plea reference.]

I asked Geragos what would be his first thought about Michael Jackson if one of his songs came on the radio right now. This was easy – watching him interact with his children at his home. Geragos described Jackson as a “fantastic father.”

Geragos and Harris represented Scott Peterson – who they describe as the most hated man in America. Peterson was accused of murdering his pregnant wife on whom he was cheating. He lied to his mistress about having a wife. In trying to describe why Peterson was so hated the authors point to one part of the equation – he “became a symbol for every wronged woman who wanted to see her ex rot in hell.” Peterson was found guilty and sentenced to death. Geragos is not his appellate counsel. Geragos says that if you give him ten minutes he can convince you of Peterson’s innocence or at the very least create a doubt in your mind.

Geragos told me that representing Peterson was a “no-win situation.” If you lost it was a disaster and if you won you were a pariah. He told me about a CNN poll after the verdict asking whether he would still have a career. He’s still around, Geragos pointed out to me.

The Role Of The Media

The authors have a lot to say about the media – how to use it, when to and when not to, along with many real life examples from their cases of how these different strategies played out. E.g., not involving the media in the Chris Brown – Rihanna case was key to the success of the plea agreement reached. It is hard to imagine anyone more qualified to discuss this issue than these two. The authors can’t stress enough that the media can play a role in the outcome of trials and that is not going away. They are blunt: “Sometimes using the media can help a client’s case a great deal, and we are certainly not above manipulating the media in our favor.” If you are a trial lawyer, the authors say, dealing with the media is now part of your job.

This sums up Geragos’s view of the media as stated in Mistrial: “The bottom line for me is that you can’t have media coverage of a case that considers “balance” to be a rabid prosecution view versus a milder prosecution view. I don’t ask people to believe what the defense is saying; I just want to make sure that they hear what the defense is saying. I don’t like the yelling and the silliness and the absurdist comments that go along with tabloid media, but it is important to at least try to stop it from being a complete railroading of every person even suspected of a crime. Especially since much of the televised vitriol is now leaking into the courtroom and the cases themselves.”

It is easy for me to imagine a young lawyer taking a case, pro bono, because he or she believes that it has the potential to obtain media attention. The lawyer’s idea may be to work for free, in exchange for the media exposure, in hopes that doing so will get him or her paid work down the road. I asked Geragos about this “business model.” He did not endorse it. Not even close. He said that there are lawyers that have tried it and gone on to become “one hit wonders.” This is not a path to success, he told me. He recommended a different one -- work hard for your clients.

With Geragos now co-hosting a new legal commentary show on CNN, I had to ask the obvious question – Is this the beginning of getting away from the day to day practice of law in favor of a greater focus on media work? His answer – an unambiguous no. He told that he is “totally addicted to the practice of law” and described himself as a “bear” in the office if he is not in court for a day or two.

Suing Insurance Companies

Since Coverage Opinions is all about insurance I needed an angle for that. Geragos didn’t disappoint. Despite all of his front page celebrity cases, he told me that the two most satisfying of his career involved coverage.

Geragos – who is Armenian and devoted to his heritage -- has for years been involved in cases with AXA and New York Life Insurance Company over benefits owed under life insurance policies issued to Armenians in the Turkish Ottoman Empire. Armenians say that 1.5 million of their people were killed between 1915 and 1923 under Ottoman Turkish rule. The chaos following the killings prevented many from obtaining their insurance proceeds. The New York Life settlement (2004) was for $20 million and the AXA settlement (2005) was for $17 million. The settlement funds were earmarked for heirs of policyholders and Armenian-related charities. Succeeding in these cases was no easy task. It involved pursuing insurance records from 90 years ago, undertaking worldwide class action notice requirements of staggering complexity and administration that, based on my review of one PACER docket, remains active today.

The other most satisfying case of Geragos’s career involved a 2012 trial in which Geragos and co-counsel won an $8 million verdict against an insurer, for its bad faith handling of a homeowner’s claim, arising out of a truck that crashed into a home and ignited a fire that briefly trapped the homeowners. Geragos told me that the insurer refused to pay $24,000 to a 90 year old World War II veteran. According to a Los Angeles Times story, the jury concluded that the insurer acted with malice and fraud in failing to pay the claim. The Times also reported that one aspect of the case was that the insurer’s conduct was directed at a senior citizen -- who is considered, under California law, to be more vulnerable than other members of the population. Geragos made a point to me about the importance of the “elder abuse” aspect of the case and the role that it played in securing the $8 million verdict (which was a combination of compensatory and punitive damages). There was no appeal.

There is no doubt that, based on the tone in Geragos’s voice when discussing the Armenian Genocide and this bad faith case, these insurance victories are very special to him – and not about whatever checks he may have cashed from them. If you don’t believe that, consider that his firm website states that the firm has won over $1 billion for its clients. So it seems that he doesn’t need all of his cases to be about the money. Speaking of which, Geragos described his firm as a “Robin Hood practice” – those that pay the rack rate support the firm’s pro bono efforts.

Fashion Advice

As my call with Geragos was coming to an end I decided to give him some advice – because advice from me is just what he needs. Geragos’s co-host on CNN’s Making the Case, Sunny Hostin, is, well, how should I put this diplomatically, more photogenic than him. I tactfully told him that there was nothing he could do to get more people to look at him than Sunny. He quickly agreed. I told him that, while it certainly wouldn’t solve the problem, he should add a pocket square to his suit jacket. A little more color on his suit would help him stand out I explained. It turns out that he did wear a pocket square on the show but was told to take it out. For some reason he didn’t want to tell me why and said he would leave it to me to figure that out. I give up. In any event Mark, even if CNN put the kibosh on the pocket square, keep it handy anyway. In case you run into Nancy Grace you may want to use it to muffle her words.


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