The Trey Gowdy Podcast - Q & Trey: How Should a Jury Handle a Mental Health Defense?

0:00Yamavav Resortant Casino at Sandman Well is bringing the biggest laughs to the stage. Break Taboos with Ali Wang on August 28th and 29th. Enjoy Ralph Barbosa's Dry Humor on September 18th and 19th. And don't miss Nikki Glazers on Apologetic Comedy November 19th. Tickets on sale now at YamavavTheater.com. Only at Yamavav Resortant Casino, celebrating its 40th anniversary. You in must be 21 to enter. Hey, this is Trey. Thank you for joining us for a Thursday edition of a, I used to say, our podcast, but increasingly people are referring to it as Mary Langston's podcast and I'm more than okay with that.

1:02In fact, I think that probably ought to be the title. I hope everyone had a great Labor Day and are they're settling in to September, which I'm not really big on astrology. I don't really know what September birthdays are. I just know that my, at the two most influential people in the world, to me, one was born on September the 11th. My wife for birthday is coming up on Friday and my mom was born on September the 19th. So they're born eight days apart, although not the same year. I hasten to add. And in a bit of irresistible symmetry, the person that brought me into the world was born

2:03on the same day as the person who will send me to the afterlife, which is Tim Scott, Tim Scott's birthday and my mom's birthday are the same day. So with that bit of useless trivia that no one will ever need as long as they love, I hope everyone's doing well. That's special, though. And what a beautiful way to put it. You know, I started to say, what are the chances that the person that brings you into the world? Here's a birthday with the person who will send you out of the world. And the chances are apparently 100% because that's what's going to happen. I'm not a statistician. I would think the odds of that would be pretty remote, but here we are. That's what's going to happen. Well, we'll see in happy birthday to all three of them early.

3:03It's going to take more and it's going to take more than that for two of them. Yeah, but one of them will be just fine with a birthday wish and she doesn't want to hold that. That's the early one. That's the one on Friday. Yeah, that's the one on the 11th. She'd just assume nobody know it. You better not miss the ones on the 19th. You better not. And to err because er is preferred, some people might say to err to err, I went ahead and sent Tim's birthday present to him. I'm September the first just to make sure it got there in time. No delays or anything. There you go. Nope, he's got it. He's got it. He came from Speaker McCarthy, director Ratcliffe and myself. I can only imagine what that gift is like, but that's very sweet thought of him. Is what he loves. Next God and his children and his mom and his family and Mindy, Peter and the Lord is

4:03what he loves the most. I see. Well, that was very generous and happy birthday then. I've never met the guy. I don't, I mean, I don't know if he goes my Peter or Pete. I've never met him, but Tim seems to like him. So he's not alone in that. I'm sure too. No, I hear his name quite a bit. I don't digress twice now. So, but that's when you get to a certain age, that's all you do. You just digress. No. Well, I'm glad you highlighted their birthdays and I'm glad some presents are on their way. Although like you said, I know Terry won't want anything other than maybe a card, but happy birthday to y'all. And I guess we'll kind of transition into the questions we've got several. We've had a little bit of a break between the two weeks. So I guess we'll start with Wendy, who writes about a hot topic right now, Clancy. And she writes, would you move for a new trial with the same charges, a lesser charge, or

5:08if possible, more toward a mental institution confinement? Well, Wendy, which immediately makes me think of the song from the association. Everyone knows it's Wendy, which is great song. Thank you for that question. This to me is either murder or she was not guilty because of her insanity or inability to distinguish right from wrong. I can tell you it is not manslaughter. I don't know why that was given as a possible jury verdict. It is not a manslaughter case. In fact, there are significant risk when prosecutors or judges seek or allow charges or they hope for some compromised verdict. I have literally seen it happen before, not in my own cases, but in other people's cases, when prosecutors try to hedge their bets and offer the jury a compromised verdict like

6:10manslaughter, I can tell you very few things with absolute certainty in life. This is not a manslaughter case. It may be murder. It may be not guilty by reason of insanity. Some people out there would be screaming, how about just not guilty flat out? I'm pretty sure she admitted to killing the kids, so I don't think that's an option. But let's assume Marguendo, the jury, took that compromised route and found her guilty a manslaughter. It would be appealed by the defense and a pellet court would look at the facts and say, exactly what I just said. Wait a second. There are no facts to support a manslaughter charge. So we're going to reverse the manslaughter conviction and since she's already been tried, she walks free. So this is not a risk-free endeavor that the prosecution or the judge, and I don't know whose idea it was, I just know it was a bad idea. So the second part of your question, prosecutors need a new theory in this case.

7:1011 to 1 in favor of either outright acquittal or not guilty by reason of insanity is about as close to losing as you can possibly get without flat out losing. So they, I didn't watch the whole thing, but I have to watch the whole thing to know what I'm about to say. I can't render a verdict because I didn't watch the whole thing, but I can render a vertical somethings that the prosecution needs to do a much better job of explaining her pre and post murder actions to show rationality and planning and consciousness of guilt. Consciousness of guilt is what would win this case. And they have to connect with the jury in a much better way. Honestly, how many times do we hear about horrific crimes? And our first thought is, well, that person must be insane. Normal people don't do that. You got to explain to a jury that being abnormal or engaging in aberate behavior is not the

8:12same thing as being legally insane. Being legally insane is that you do not know the difference between right and wrong. So if you don't know the difference between right and wrong, you make no effort to cover up your actions because you don't know that they're wrong. So you have got to focus. I've had mental defense cases before. I've had people that claim mental impairment. You have got to focus on what happened immediately before, during and immediately after. Was there planning? Was there premeditation where the rational decisions did she make phone calls? Did she know enough to know what the right number to dial? How did she sound during those phone calls? And then, you know, not to be too moribon, but it takes a long time to strangle three people to death. They're not cooperating. People don't want to be strungled to death.

9:13They fight. So that requires resolve. It requires commitment. So that's on the prosecutor's. They've got to do a better job of explaining it to their expert witnesses and both in opening and closing. So when I move for a neutral, yes, I would rather lose a case than act like there were not three small headstones sitting in a cemetery somewhere in Massachusetts. And would I agree to a lesser charge? I'll just go with no because sometimes my wife and my mom are listening to this. The podcast and they both ask me not to curse. So I'll just go with no, even though I'm tempted to give a two-word answer. I would never agree to a lesser charge. I would rather lose it than give it away. That was my theory. If you want to beat me, you can beat me, but I am not going to give it away. Now, could we agree on a period of incarceration in a mental institution? Yes. But the jury needs to understand if they find her not guilty by reason of insanity.

10:20And it truly is postpartum depression, which I heartedly agree is real. No one is minimizing that. But postpartum depression, if it is connected to the pregnancy, it at least tells me as a non-psychiatrist and non-medical doctor that the further remove you get from the pregnancy, the better your condition gets. So is she going to be okay in six months? And are you okay letting her out of a mental hospital in six months while you've got three dead kids? And she, in theory at least, unless you know something, I don't know, could become pregnant again. Are you all okay with that? That's what I would ask the jury. I doubt they are. But look, I was not a fan of the way the case was handled, but you know, it's not my case. And you said that from the beginning? Yeah, I am a perfectionist. You can ask the people who used to try cases with me.

11:23All of this stuff should have been thought about a year ago. And they changed horses in the middle of the river. They went from casting her as a premeditated, unsympathetic person, more like Susan Smith. There is no sympathy for the Susan Smiths of the world. There is sympathy because our first reaction is normal people don't do that. Mother, I just started this podcast by talking about the person that brought me into this world and would do anything in the world to this day to protect me. That is what we think of when we think of mothers. We do not think of the person that's kind of put their hands around our neck until we no longer are capable of breathing. That is not what we think. So the prosecutor has got to convince the jury that, yes, something was wrong with her, but you can still know the difference between right and wrong, every horrific murder case I ever, who bludgeons and elderly couple to death will be hammered.

12:26No people don't do that. He had post mortem sex with the female victim that he lodged into death with a hammer. Normal people do not do that. But he's not in a psychiatric hospital. He's on death row, which is where he ought to be. So they got to do a better job. We'll have more next. For the first time ever, Yamavar Resort and Casino at San Manuel is giving away a new Rolex watch for every club Serrano Cardier. Stay with your club Serrano Card and on September 20th, you could be one of five winners of a Rolex watch. Plus all winners will advance to the finale at Palm's Casino Resort Las Vegas for a chance to take home a rarity. The second must-dang dark horse ever produced on September 26th. Two properties. Six winners only at Yamavar Resort and Casino, your California to Vegas connection. Details at Yamavar.com must be 21 or older to enter participate. Please gamble responsibly. We'll move on to our next question, but it's related to this. It's not legendarily low blood pressure. It's very high when I think that there are three dead.

13:31I better stop before my blood pressure becomes normal. I better stop. Well, this one's actually related and it's from Bill. Oh, right. No. But I'm interested to hear what you're going to say and I'm sure Bill is too. He writes, given the recent jury deadlock in Massachusetts, what might have been your considerations during jury selection in this case? Had you been the prosecutor? Jury selection. Well, first of all, Bill, you're being very charitable to the prosecution. Deadlocked 11 to 1. Yes. It was a home jury. I think of the deadlock as more six to six, maybe eight to four, 11 to one. And even the one says, I think he didn't prove it beyond a reasonable doubt. I just can't let somebody kill three kids and walk out of a mental hospital in six months. Now you are correct to know these cases are often won and lost before you call the first

14:36witness. Every selection is a term everyone uses, but it is really jury deselection or unselection. You have a pool and then you use your strikes to keep people off the jury and then whatever's left after you exercise your strikes, that's your jury. And the challenge here is oftentimes in cases involving children, people do not want to live through the facts and they don't want to look at the pictures and they don't want to look at the autopsy photos and they don't want lifelong memories because it is agonizing. It is awful, awful to watch that stuff. And trust me, it is awful and you can never unsee those pictures. So what would otherwise be good prosecution jurors? You lose them because those folks don't want to serve on a jury like this. And the best way to get out of serving is to say, I cannot be fair. I don't know how many times I had your stand up when the judge says, can you be fair in

15:39a homicide by child abuse case or a child sex case? And people stand up and say, I just cannot. I cannot be fair if a child is involved. So you lose potentially good jurors because either they're being honest and they can't be fair in which case you should stand up. If you can't be fair, you shouldn't be on the jury. I think a lot of times, or I shouldn't say a lot of times, sometimes people just they don't want the emotional baggage of having to look at this for weeks or months because it stays with you for the rest of your life. So these cases are very hard. And I don't know what would make a good juror. Nothing actually would make a good juror. Others say, I mean, if you're a mom on this jury, you're going to say no normal or same mom would do this. So therefore she must be crazy. Although crazy is not a legal term or a medical term, she must be insane. Women who are not mothers might see the legitimate and I think they were legitimate suicide attempts

16:47and conclude that she was insane. Women are typically very sympathetic to female defendants. That is true all across the board and all nature of crimes. One of the great myths in the world is that you want women if you are the victim of a sexual assault that you would want other women on the jury. That is a myth. You do not. You want men. Women are skeptical. They're very sympathetic to female defendants. They're very sympathetic to female victims. I would look for older jurors who are skeptical in general of mental health offenses. That doesn't mean they're not open to them. It just means they didn't grow up. What was that all? I mean, my dad never let me watch it. But it was this comedian. I think his name was Flip Wilson. I mean, literally my father never let me watch it. But his saying was the devil made me do it.

17:48My father wouldn't let us watch it because it didn't think the devil makes you do things. Now we can go back to the book of Job and debate that at some point. However, the older you are, the less likely you are to accept the fact that some outside force made you do something. I would look for older jurors. I would look for people who are skeptical, not skeptical of mental health issues, not that at all because no one should be skeptical of mental health issues, but skeptical of mental health defenses. You've heard me use the phrase often, jail Jesus. They were fine up until they committed a crime and then all of a sudden they got crazy. I'd go back and look at, I mean, I don't know if he's a linger or has a factitious disorder. I don't know. I mean, she didn't fake the suicide attempt.

18:50I don't think I've had plenty of defendants fake their suicide attempts. I don't think that's what this is, which is what makes this case so hard. I would look for an educated jury, which ordinarily you would not hear prosecutor say that. I would look for an educated jury who knows that all drugs are not equal. Lorazapam is not an anti-psychotic drug. The fact that we can't spell a pharmaceutical does not mean the drug is so complicated we can't explain it. I would look for jurors who might be moved by an expert pharmacologist or an expert psychiatrist. Make no mistake. This is a hard case to prosecute. The behavior is so unnatural. Our temptation is to conclude something must be wrong with her. Your knee jurors that might be sympathetic to whatever she was going through, but would focus on the facts that showed that she did know right from wrong. That again is best shown by her actions right before, during and right after the strangulation

19:54of three children. It sounds like there's a science behind jury desolation or however you've raised it. Some people say it's really reading people. It is reading people. So yes, that is psychology and a lot of people hire jury consultants. They were used by the defense in a lot of cases that are prosecutor. They would go spend a lot of money to figure out if somebody had a tie on, what did that mean? I just watched people. If they were the last ones to stand up when the judge walked in the courtroom, I took note of that. If they were dying to get off the jury and came up with a bunch of excuses as to why they couldn't serve, I took note of that. I took note of how they interacted. The late great David Stevens told me from the moment they walk in the room, you have got to watch them. If you watch people, yeah, there's a questionnaire.

20:57We know what bumper stickers are on the car. I mean, chances are if somebody has a co-exist bumper sticker on the car, I'm probably not going to want them to do it if I'm a prosecutor, probably. I had a case where they associate a professor because I ran out of strikes. By the way, I only had five strikes and I ran out of strikes. I had to see a sociology not professor, sociology major. It was like a triple when you didn't want a young female in a death penalty case who was majoring in sociology. You're 0 for 3 if that's what you're looking for. However, however, she voted to convict and she voted to send it to death. So all the rules that people go by, there are exceptions to them. And if you do a good job as a prosecutor, assuming you have a fair jury, you can prevail.

21:59Wow. Well, thank you, Tray, for breaking that down for us and thank you, Bill, for your thoughtful question and follow up to that as well. We'll finish up with Julia from Texas who writes, the end of Sound of Regret left me hanging, she said. I loved it. When is the next book coming out? Well, first of all, thank you, Julia, for reading it. Thank you for liking it. Yes, I left you hanging. As I've said, a thousand times before, but it doesn't hurt the horse. So I'm going to go ahead and beat a dead horse because it didn't hurt it. It was all one book in my head and the smarter people than I am told me to divide it into three books. So when, whenever my boss is told me to write it, it is already in what is left of my mind, which isn't much, but it's already there. I know how the next book goes. I know how it ends. That's the hard part is coming up with the theme and the action and the plot.

23:03That is done and it has been done. I am ready to start writing or keep writing, I should say. The answer is whenever my boss is told me to get going is when Christopher and I will start the process that we have and we have, I don't want to say perfected because that sounds amodest. I don't mean that what we did is perfect. I mean, our process has been perfected and how we write together and ready to roll. I can tell you this moment how the third book of this trilogy ends because it's always been in my head. So I am sorry I left you hanging but just keep in mind it was all one book when I devised this in my mind and it would have been a long book and nobody would have read it but it would not have left you hanging because it would have ended but they told me to divide it into three's and that's what I've done.

24:05But thank you for reading it or listening to it or reading the sparkle notes or whatever. We had several people write in saying go ahead and start writing it so I'm sure they'll be done. It's done. I can tell them I can't tell them they like it. I can't tell them they're going to like it. Oh no. But it's it is done. I can tell you everything that's going to happen to everyone and we just have to wait. We crank the other one out pretty quick. One year term for a book is very, very quick. It is very quick. So whenever Miss Scott whom I never cease to thank for encouraging me to write this book, whenever she or me or Lauren Patterson or Jennings Grant or who fell in the blank, tell me to get going. That's when I'm going to get going. Well, we'll be anxiously waiting.

25:05I loved it and I could hear you're writing throughout. So thank you for answering that question and hopefully you'll start writing it soon. I would think by now you would be sick of hearing that. I'm even hearing it for over a decade now at some point. That's crazy. I just thought of that. It came up. The anniversary came up from working with you just recently. You've got to be tired of that. It's Joe. I'm not. Joe didn't do it for a decade. Joe only did it for a couple of years. I should reverse that. You probably tired of me. So I believe it at that. Yeah, I get that question all the time. How can you possibly put up with her? I get that question all the time. I get it. I get it about you. How can you possibly put up with us too? Is it Joe or Job? It's Joe? You got it right. It's Joe. Okay. All right. I mean, I think it's in the Old Testament, right? It's always the book I read first with my Bible recap, actually. Which is interesting.

26:07My sweet, beautiful wife was getting on me that I should read the Bible more often. She says just because you remember the stories that didn't count. She should, and she's probably right about that. But I think there's a verse maybe in Job where, well, for sure, God and Lucifer have a conversation in the book of Job. And I want to say God may have asked where have you been. Or maybe I just dreamed this that the devil said here and they're traveling the earth. But honestly, he already knew where he'd been, right? That why would you ask? He asked a lot of questions. That's for sure. And they actually had a very civil conversation.

27:08But we'll say that for another podcast. All right. Thank you all for two questions. Actually, three questions that I know. Three. Something of the answer to two legal questions and then a book question. And that was great. You took us right to law school with that. And a lot of people are talking about that issue. And then a lot of people are asking about your book. And when the new one's going to come out, so they applied. Well, I'm grateful. And I mean, I worry about the health of every English teacher I ever had when they find out written books. I'm sure they go into a state of shock. I mean, they'd be in a state of shock if I read a book. But if I wrote one, Clancy, you know, that's a cultural phenomenon that I don't understand. I'm not a woman. So I probably won't ever understand it. And I think I'm right.

28:10She's somewhere between Andrea Yates and Susan Smith. There was zero sympathy at all for Susan Smith, nor should there have been. That was a premeditated, calculated decision to drown her boys because she didn't want to be a mother anymore, period. Those. And my heart breaks for those two little boys. I never got a chance in life. And for her, then husband, David. He hates that was a Texas jury that found her not guilty by recent insanity. So it wasn't like it was a Massachusetts jury. That was Texas. The woman that pulled a gun on me outside of the church was not guilty by reason of insanity. Wow. So it does happen. It's it's just hard for juries to see three dead kids. No, that you were going to be out, maybe in six months and can become a mother again.

29:11Yeah. That's hard. That is hard. But if both lawyers do a good job, usually the jury gets it right, but both sides have got to do a good job. More of a balance. I don't think that the defense attorney was no clear or dare. In itself. So, but we'll save for another podcast. What I watch is closing. Sometimes you went to spite yourself. Sometimes you went because of yourself and sometimes you went to spite yourself. Hmm. Well said. Well, we'll get out of law school and go back to go back to football. We'll come back to law school next week. All right. You'll have a great week. You'll have a great week and happy birthday to those special people. Yes, to everyone because I'm sure there are other people listening head birthdays too. And I'm sorry. I don't know your astrology sign, but I'm not sure I know my own.

30:11So I don't really know my neither. I don't my daughter tells me I'm a Leo, but I don't even know what that means. So mine, all I know is mine does not fit. So I've got to find a new one, I guess. Or maybe it's not accurate, possibly. Maybe so. I don't know. All right. Yama va resort and casino at San Manuel is bringing the biggest laughs to the stage. Break taboos with Ali Wang on August 28th and 29th. Enjoy Ralph Barbosis, dry humor on September 18th and 19th. And don't miss Nikki Glazer's unapologetic comedy November 19th. Tickets on sale now at Yama va theater dot com. The Yama va resort and casino celebrating its 40th anniversary. You in must be 21 to enter.