BARD - Lindsay Clancy: Why the Defense Fought the Mistrial

SPEAKER_1 (0:03)

This is Reasonable Doubt with your hosts, Mark Geragos and Gary Smith.

Teny Geragos (0:09)

All right, good morning. Welcome to Reasonable Doubt.

I'm Teny Geragos. I am joining my dad this week for a special episode on the Lindsay Clancy case, because I am getting deluged with questions by friends, even cousins, people who have grown up in the criminal defense world. And so I figured that I would come on today and ask my dad some questions so he can explain to us what this means, what the last week means, what the last two months means. So dad, thank you for letting me come on today.

Mark Geragos (0:50)

Yes, I hung juries and missed trials. You know better than anybody as a young kid, that's the name of my book and it seems I have a disproportionate number of hung juries and missed trials in my career.

Teny Geragos (1:07)

Yeah, so I did actually want to start there because you named your book Miss Trial. This case has kind of turned what defense lawyers typically want on their head.

We always want an acquittal, but anything that's not a conviction typically is a win for us. Can you just tell us what is a missed trial?

Mark Geragos (1:29)

A missed trial is when, and it doesn't have to be necessarily when the jury is hung.

I've had countless missed trials before the case has even gotten to the jury.

And in fact, one case in particular, I won't mention her, the judge, because she's in the news right now for other cases that she's in. But literally the last witness in the trial was a LAPD officer who, upon cross-examination, we found out that something that the prosecutor had hidden from us was in fact true, which is what I had been arguing the entire trial. Last witness, I made the mistrial motion. The judge granted it before the case got to the jury. When I later asked her why, she said, it was because you were gonna win the case. So a mistrial motion generally, if it's before the jury gets the case, means you do it over. If a mistrial is after the jury is deliberated, 999 times out of 100, that means the same thing that the case is gonna get retried again.

Teny Geragos (2:48)

Well, I was gonna ask specifically about that, which is, does that mean the case is going to get retried again? Because I think, I would say that the major, I'll say two things. The majority of your cases where you've had a mistrial, you are usually leaning into that second trial, retooling, but I don't think that's true for the majority of mistrials. When there's a hung jury, usually, can you just give us globally what happens next after a mistrial? Because I would say that what you see generally is you would get a better plea offer for the defendant, and the defendant realizes, let me plead this out, let me do a little bit better. And the prosecutor, because generally, the prosecutor then finally learns what were the weaknesses in their case, how can they retool?

And they know the defense lawyer's tricks. Of course, there's better things for the defense as well, but I just want to hear your perspective on generally what happens after a mistrial. So if the jury has gone out.

Mark Geragos (3:54)

Right, if the jury is hung and a mistrial is declared, the common wisdom is that that's an advantage for the prosecution.

You have the most recent high-profile mistrial before Clancy, which was Harvey Weinstein, and the prosecution decided not to retry him on that case. Your split was not even what were you nine to three for not guilty. This was-

Teny Geragos (4:23)

We had our alternates too.

Mark Geragos (4:25)

Yeah.

Teny Geragos (4:25)

But it doesn't pay us.

Mark Geragos (4:27)

Yes.

In this case, it was 11 to 1 for not guilty. I've said this in a couple other places. The last 11 to 1 for not guilty that I remember, I'm not saying that's the only one, but in a relatively high-profile case, was Sheriff Lee Baca in federal court in the central district here in California. That case was retried and Sheriff Baca was convicted and sentenced to federal prison. Fun fact that his defense lawyer was our current DA, Nate Hockman.

So it does not always turn out well. In my personal experience, every hung jury I have had where I have handled the case afterwards, and I'm thinking one murder case 20 years ago, the current head of major crimes where I did not try the retrials, Pat Harris tried the retrial, and then the third time around, the public defender tried it, but that did not turn out well for the client. But to your point, after the first hung jury, we had an offer, and after the second hung jury, there was an even better offer, and maybe wiser or more just wise deliberation would have counseled taking that offer. Normally, like I said, it's to the prosecution's advantage. People have to understand the prosecution.