Episode 2: Let’s Talk About Sex (Crimes), Baby

 

Jessa: Hey guys. I’m Jessa Nicholson Goetz.

 

Nick: This is Nick Gansner.

 

Jessa: And this is the podcast, “Getting Off”. This is our first full podcast attempt, and so we thought we’d start out by telling you guys a little bit more about who we are and what we envision this is gonna look like and then we’re gonna get into some discussion about the way that we actually talk about crimes and criminal law, specifically the words. And there’ll be more on that later, but for now, I’m gonna let Nick give you a little bit about his background and then I will do the same and then we’ll be off to the races.

 

Nick: So I am Nick Gansner. I’m an attorney here in Madison, Wisconsin, and our law firm of Nicholson, Gansner, & Otis and I graduated from law school in 2004. I, uh, prior to our firm coming into existence in its current format, I was a prosecutor for about seven years. Mostly here in Wisconsin, briefly for a period of time in Illinois. I started off as a prosecutor in Madison, Wisconsin, the Dane County District Attorney’s office. Back then, you started off doing OWI’s, misdemeanor crimes, and sort of moved on up as you got more experience, and before I left the DA’s office, wound up doing more serious crimes including a lot of drug cases. Then I moved to Illinois for a period of time, worked at the Illinois Attorney General’s office in the statewide grand jury bureau, and at some point in the show, we might talk about the differences between grand jury states and non-grand jury states, but Illinois is a grand jury state. And the statewide grand jury bureau prosecuted multi-county jurisdictional cases that involved guns and drugs and gang activity. Then I moved back to Wisconsin and became an assistant district attorney again and had a domestic violence caseload that focused almost exclusively on sensitive crimes: sexual assault, stalking, child abuse, inter-partner violence, all the way up to homicide. And then about four and a half years ago, Jessa and I decided to start practicing law together, and here we are, and I’ve been a defense attorney since then.

 

Jessa: That’s right. I stole Nick about four and a half years ago and it was one of my better moves because now we get to have an expanded perspective here, including, you know, somebody that’s been on the other side of things. I have never prosecuted a case. I am probably what people would call “a true believer”, so I’m a defense attorney through and through, and you’ll hear that throughout all of our conversations, that the rights of the accused are very important to me, and they’re very important to Nick, and we’re gonna probably talk from a perspective that is, at least, defendant-neutral. And often, we’ll probably be looking to present the most human side of defendants when we talk about cases in trials, and it’s not that, it’s not that the other parts aren’t important. That’s just not the part we play in this system. We play the role of the defenders.

 

Nick: That’s right. I mean, that is what we do for a living everyday. And so that is, I mean I think inevitably, that is going to be the perspective you primarily hear us coming from. That said, I also think we’re two lawyers who are able to see, pretty effectively, all sides of a case. And I think we actually hear that from people we practice law against, that they see that in us. And look, when we do deep dives on specific cases, we are going to try to present certain legal concepts and certain aspects of the case from both sides. We’re gonna try to, as accurately as we can, depict what the prosecution did or what we think the prosecution should have done or what they could have done, and we’ll probably rely somewhat on my prosecutorial experience to do that. We might do a little role-playing as we think about what both the prosecution and the defense did, but what Jessa just said is totally true, especially when we’re talking about probably larger policy-wide issues. When we talk about…

 

Jessa: Criminal justice reform and sentencing and bail. You’re gonna hear our bias, which we’re not journalists. We’re not gonna solve any crimes or answer any deeper questions. We’re gonna talk about the stuff that we think is interesting. And maybe that’s interesting to you, too. We’re gonna do our best to only talk about things that are accurate, we’ll do our research and present it in the way that we hope is clear and articulate, and also true to what the facts of any particular case are. I got completely off topic on introducing myself, so I’m gonna go back to that.

 

Nick: Go back to that.

 

Jessa: Alright. So I have been practicing criminal defense for about the last 12 years, just about. I hung a shingle out and started my own practice right out of law school because I was both arrogant and stupid. But it’s worked out, and now I am the founding partner of Nicholson, Gansner & Otis, which our little law firm here in Madison, Wisconsin. A friend of mine recently described it as “a really woke frat house”, so that’s where we’re recording this. We’re in an office, in our office, and throughout the course of my career, I’ve focused on what we call “sensitive crimes” or “conflict crimes”, and those are crimes that deal with people; so domestic violence, sexual assault, child sexual assault, child abuse, and homicide. Basically, if someone is crying and it was really traumatic, it’s the kind of case that I’m involved in. And that has been true for my entire career. Nick and I have tried a number of cases against each other, and we have tried a number of cases together. We will occasionally talk about some of the cases or experiences that we’ve had. Whenever we talk about a specific defendant and we use their name, it’s because we have permission to tell their story. If we talk about cases in a more vague or less specific way, it’s possible that we’ll change some identifying details so that you won’t be able to tell who exactly it is we’re talking about, but the substance of the case, the nature of the allegations, when we’re talking about our own, we’ll always be staying pretty true to life. Is that a fair assessment, Nick?

 

Nick: Yes, it is..

 

Jessa: So, that’s kinda who we are. There are seven people at our office, eight if you count our study-abroad intern, and we do this everyday. We practice trial-level litigation. We have had some cases that have rendered national-media attention, which has been pretty cool for us. You can check us out and google us. The firm website is available: nglawyers.com, like “not guilty”. But what I think we want to start by talking about is how this podcast is gonna work, format-wise. So we’re thinking we’re gonna do two different types of episodes for you guys. Do you wanna tell them about one and I’ll tell them about the other?

 

Nick: Sure. So, one type of episode we’re gonna do is to talk about broader policy-wide issues in criminal justice. Criminal justice has been a topic that has captured people’s attention, I think more so than in past years, just in the last couple years, and I think there’s lots of notions out there about criminal justice reform, and we’ll probably spend a lot of time talking that in general and also talking about more specific aspects of that, like sentencing or sentencing reform. One particular issue that’s of real interest to us is bail, and bail reform, and we’ve been pretty excited to watch that particular issue take hold nation-wide and there’s been a lot of reporting in different states about how different states have changed their bail statutes and their bail practices, and that’s one that we’ve sort of been fighting recently in the courts in Wisconsin, so one type of show that we’ll do is where we’ll take apart and talk about a particular policy-wide issue like bail reform or sentencing reform or “mass incarceration” or things of that nature. And then separately, we’ll probably alternate or something close to alternate episodes where we do a deep dive into some particular case.

 

Jessa: And so what we’re thinking is we would start out with a description of the crime itself, and the arrest, and we’ll follow the case from the beginning, which is, you know, shortly after the arrest, the preliminary hearing, things like that. If there’s a trial, we’ll talk about the trial, we’ll talk about pre-trial litigations, rulings, motions, things like that. If there’s acquittals, then we can talk about the implications of that. We’re also gonna talk about the sentencing hearings if there, if there are,.. Wow. If there are any. That wasn’t so great. We’re new at this, so in our first episodes, cut us a little slack on our audio quality, our editing quality and general fiddle fucking around. We promise we’ll get better. We do talk for a living. We’re just not quite used to the medium.

 

Nick: That’s right. So we’ll get tech-savier as we go along here and we’re already working on getting some assistance with our technical qualities and our editing, so we’ll improve as we go along, we promise. But we hope the content will be good, even as our technology improves.

 

Jessa: So given that our firm focuses on sex crimes, let’s talk about sex crimes today.

 

Nick: Yeah.

 

Jessa: I think that’s where we’re gonna start, and specifically, we’re gonna talk about the language we use to describe sex crimes and crimes against bodily, you know, against somebody’s bodily security. And that has been a topic of discussion in the media. I can give you a ton of examples. I’m sure Nick can, too. But here’s what I’m thinking about, Nick.

 

Nick: Yeah?

 

Jessa: Do you remember, we had that guy that showed up to court drunk.

 

Nick: Mhmm.

 

Jessa: And it was like, halloween or some type of party thing because there was somebody dressed in a devil costume immediately before him.

 

Nick: That’s right.

 

Jessa: And so between the guys intoxication level and the fact that there were weird presentations of, like, cloven hooves.

 

Nick: It was a memorable day in the courtroom.

 

Jessa: Yeah, he was really out of it. He looked at me and he said “You just know all the court words.”

 

Nick: That’s right.

 

Jessa: And that’s something that’s become a little bit of a joke here at the office. “Wow, I know the court words”. So we’re gonna talk about the court words and some of the court words that have controversy. And the first one that I want to talk about is how we use the word “victim”.

 

Nick: Right. And we will probably use the word “victim” in a fairly specific, fairly precise way. If we’re talking about a pending case, for example, we will probably refer to someone as “an alleged victim” or “an accusing witness” or “the complaining witness”. And that, we do that because we are lawyers and from a strict legal perspective, that is what that person would be at that point in time when a case is still pending. If there’s a conviction, after a conviction, at that point, that person has been proven or at least, either a judge accepted or a jury accepted that the crime was committed, and so we will change our terminology and refer that person as a victim at that point. And so we don’t, we wanna be clear with our listeners that that kind of terminology, and we’re gonna give other examples, other ways that we use words in sort of very specific ways, isn’t intended to be disrespectful, and we certainly hope no one takes it that way. What it is intended to do is to be very precise. It’s intended to be legally precise, and in fact, I think we intend to be respectful to everybody who’s associated with a case, and it’s also about respecting, deeply respecting the maxim that people are innocent until proven guilty. So someone who’s been accused of a crime, we may refer to them as a defendant because that is what they are, at that point in time. But they are innocent until they are proven guilty, and so you will hear us speak about people in cases in that context in those precise terms to reflect that respect.

 

Jessa: And I’m immediately gonna start picking on Nick who just gave a speech about using precise terms, and said “Innocent until proven guilty” twice, which drives me crazy.

 

Nick: Okay.

 

Jessa: “Innocent unless proven guilty”. Unless.

 

Nick: I mean, I’m not sure that’s the way it’s written up, but I don’t disagree with you. You’re right. You are innoc.. Well, but.. Do you think there’s a significant difference “until” and “unless” in that context? I don’t know that there is.

 

Jessa: Oh, see I think there’s a really significant difference because I think that when you say “innocent until proven guilty”, particularly in the context of instructing a jury, that it’s implying to them that…

 

Nick: ...that there will come a point in time when this person will be proven, okay.

 

Jessa: Exactly.

 

Nick: I can accept that.

 

Jessa: So all you have to do is sit through this trial for three days, find the guy guilty and we’re good.

 

Nick: Right.

 

Jessa: You just have to think he’s innocent until you get through all of that evidence.

 

Nick: We just got 72 hours to kill until we get to that point.

 

Jessa: Right.

 

Nick: Right. Okay.

 

Jessa: Whereas “innocent unless proven guilty” means that, unless the state meets their very high burden of proof, which is “proof beyond a reasonable doubt” in all criminal cases, everywhere in the United States, they’re still innocent, legally.

 

Nick: Yeah. I mean I might, as a former English major, and as we’re both lawyers, I might quibble with that language a little bit. I don’t think “until” automatically implies that that moment in time is coming. But I see your point, and we’re on the same page that that is what we mean, is that “unless” and “until”. Until a moment in time comes, then a person is, in fact, convicted of a crime, they are innocent up until that moment. And so, you’ll hear us talking about things from that perspective because we talked about before, fact of the matter is we are criminal defense attorneys and so, we are extremely sensitive to that fact, and to that legal maxim. But also, that is the truth of this system, and we work in this system, and those who are interested in this system, we certainly feel, ought to be keenly aware and keenly respectful of that particular point. Just because you are accused by a person, by the government, by the cops, by anybody, does not mean that you are guilty. And so we’re gonna be deeply respectful of that. Certainly, we are well aware from having been practitioners in the criminal justice system for a long time that just because the media says that you did something, or it is reported in the media that you did something, does not necessarily mean it’s so. Things are often inaccurately reported in the media for a number of different reasons.

 

Jessa: So that’s our, that’s our spiel on how we’re gonna use some of these words and I think, you know, Nick, have you been following some of the different Hollywood sexual assault and sexual harassment allegations that have come out in the past few weeks in the media?

 

Nick: Yes, I have.

 

Jessa: I think one thing that I would point is that a lot of times, when people talk about that, even though there’s been no trial, or even indictments in most cases, I think there have been a couple people who might have some civil litigation pending. But there haven’t been any charges filed and yet, we’re seeing people refer to the women that have come forward as victims, and we’re not disparaging or necessarily doubting their story from a personal perspective. But we’re absolutely doubting that story from a legal perspective, in that until there have been findings, we’re going to respect that presumption.

 

Nick: That’s right. And so, that’s how we’re going to talk about that, in the context of this podcast. Now, I think there are a lot of interesting discussions that can be had about something that Jessa just brought up, which is, with the example, these Hollywood individuals, there’s been a lot of reporting and some of those people had, you know, many many many people come forward with claims and allegations of a variety of misconduct. You know, one thing that I talk about in court sometimes is, when you are in a criminal context, there is a completely different burden of proof and a completely different set of evidentiary standards than there is anywhere else in life. And so, you know, there might be collateral consequences for someone simply by virtue of being accused of something. That does not mean that there are going to be the direct consequences of a conviction for them. But, which I think there’s a lot of interesting discussions that can be had on that topic. But another one, another interesting discussion is the way we report on these things or discuss publicly in a non-legal context, can absolutely affect what happens in the criminal context and that can be a big problem in the legal context and that’s part of the reason that we’re going to be so precise with our language here.

 

Jessa: Right.

 

Nick: Because the way that things are reported on, if there’s high profile matter, high profile in the sense that it’s being discussed publicly by a lot of people, it’s being reported on in the media and on the internet and on social media, etc etc, in cases like that, that is going to have some kind of effect on what happens inside a criminal courtroom. And what, the way it affects what happens inside the criminal courtroom can implicate people’s constitutional rights, and that’s a serious problem.

 

Jessa:  See, and this is exactly it. I’ve heard these arguments advanced that are, like, look, the presumption of innocence, that’s a legal issue, it’s not something that, say, the media has a responsibility towards or people in everyday conversation have a responsibility towards honoring. And while that’s true, nobody is living their life in a courtroom, so you’re not being asked to apply legal standards, when we have defendants who are being trashed all over the internet, for weeks and weeks and months and months before a trial happens, some of that information or misinformation, as it often is, comes in to play with our jury panels and then it implicates a defendant’s right to a fair trial. And so, we both choose to apply the presumption of innocence in everyday life because, well, that’s just how we enter the world, I think.

 

Nick: That’s right. And so, all of these things are reasons why we’re gonna use our, watch our words so carefully or try to, and use very precise language. So, you know, look, it’s one thing to read about some story in the paper and say “Huh. Well, I wouldn’t want to have a cup of coffee with that person” or “I’d cross the street if I saw them coming” and it’s another thing to simply decide “That person’s guilty. I already know that. I know it. I know it by virtue of what I’ve heard or what I’ve read on Facebook.

 

Jessa: “I feel it!”

 

Nick. Yeah. Or what I read in my local newspaper. And those are two very different things. So, and I think, as you’re probably picking up, we’re quite sensitive to that because that, in certain cases, implicates our ability to represent our clients and implicates our client’s ability to get a constitutionally-mandated fair trial. And those are things that we feel really really passionate about, about the constitution.

 

Jessa: I love the constitution. So, okay. What we wanna talk about today is some of the language that is often used or often misunderstood or criticized when we’re talking about sensitive crimes and specifically, sexual assault. So what I wanna start with is, what is sexual assault?

 

Nick: Right.

 

Jessa: And most of what Nick and I talk about is going to be dealing with Wisconsin law because where we’re based. And in Wisconsin law, we actually don’t have a rape charge. Rape is not a word that we use in our statutes or in our description. And there are a lot of states that do similar things, that they call things sexual assault or sexual battery and that’s been cricized by, you know, certain groups that want to see victim’s right honored because they think that by calling something a sexual assault, or calling something a sexual battery or sexual misconduct, that it takes away some of the power of the description of what the actual act was, which is, rape. So what do you think about that, Nick?

 

Nick: Well, I think my view of that is colored by the fact that the only state which I’ve either prosecuted or defended sexual assaults is the state of Wisconsin, and the state of Wisconsin uses particular language in its criminal code and that, as you pointed out before, the word rape doesn’t appear in our criminal code in Wisconsin. It is all the terminology of sexual assault, and sexual assault under Wisconsin law encompasses a wide variety of what we might more generically call sexual misconduct and it also encompasses what I think people colloquially think of as rape. Other states, as you pointed out, well, other states use both. Some states talk about rape, some states talk about sexual assault, and some states use both terminology and, I believe, that when they use both, in structures where they have both terms, when they use the word, I think they mean penile penetration.

 

Jessa: Right. It’s my general understanding, from looking at a couple different state statutes, that when the word rape appears in a criminal statute, it seems to be dealing with one very specific, hetero-normative type of sexual assault, which penis to vagina intercourse.

 

Nick: Potentially patriarchal.

 

Jessa: Yeah. So, you know, sexual assault encompasses, for example here, it’s any intrusion, however slight of object or body part into one of the sexual body parts of another person.

 

Nick: That’s right. That’s the definition of sexual intercourse under Wisconsin law.

 

Jessa: Right. And sexual assault under Wisconsin law can also involve touching.

 

Nick: Right. Sexual contact, as well as sexual intercourse.

 

Jessa: And sexual contact has to be done for purposes of, either sexual gratification, so either for purposes of getting off, which is part of how we got our title, or for the purpose of humiliating and degrading a victim.

 

Nick: That’s right.

 

Jessa: And some of the conversations that I’ve had about this are that the choice of legal terms really negate the power of the experience. And I think, just to give everybody my opinion on that, I think it’s important not to use words that inflame prejudice when we’re talking about something as serious as a criminal trial. And so I understand the argument, which is, you know, when somebody is a victim, and they’ve been violated and they’re bodily safety has been violated, I understand the desire to call that what it is. And I think there’s power in that for that person and there’s power in that, in the retelling of that story and claiming that violation, and you know, I worked in victim’s rights before I went to law school and before I did defense work, and I stand by that. However, I also think there’s power in using inflammatory words in the context of accusations, rather than proven cases.

 

Nick: Right. Well, and you know, it’s important in the legal context, again. It’s really important. It’s vitally important in a legal context to speak very precisely. Lawyers want to define terms and define the meaning of things and have specific words and words specific phrases mean specific things. And one place that I think I’ve sort of found interesting where there seems to be a lot of ambiguity about this kind of terminology has been in the reporting of some of these Hollywood people because you will see articles that say “Oh, so-and-so has now been accused by X number of people of sexual assault or sexual harassment or sexual misconduct or even rape”. And so we just rattled off four different phrases, and of course, someone writing for a online newspaper doesn’t have to, isn’t required to use language with the level of precision that is required in a criminal courtroom. And so, and then again, there’s also the complicating factor, well which states’ legal language are you using? And so, there is a lot of, you know, look, is a rape sexual harassment? I certainly think that something that we would think of that would qualify as something as awful and horrible as a rape would certainly encompass something that, at least to my ears, sounds somewhat less awful as sexual harassment. But, you know, we don’t know and I think that’s why some of the media reporting of this stuff starts using, like, every phrase they can think of because they want to try to cover everything, they want to try to cover every base.

 

Jessa: What they want to say is “This woman has been fucking mistreated”.

 

Nick: Right. “This person has been violated and abused in some way.” But they struggle to use, to know what the right terminology to use is. And I’m sensitive to what Jessa is saying, too, because in a courtroom, again, it’s, like, if you’re going to convict someone of a crime, any of you who have ever maybe sat on a jury or watched a real trial, not a TV show, might’ve gotten a sense that things are defined down to a very, a pretty precise level. Look, it’s never perfect, but they’re defined down pretty precisely. And so, if the state, if the government is going to convict someone of a crime, they have to explain to the jury exactly what it is that they’re saying this person did and then ask the jury to find that person guilty of doing that precise thing.

 

Jessa: And it can be that somebody is guilty of doing some other thing that is also probably a crime, but if they weren’t charged with that crime, then they can’t be convicted of the thing they’re not guilty of doing under the law. So the language really matters.

 

Nick: It does matter. And what I think what Jessa was referring to before is, at least in Wisconsin, and this is true, I think, probably throughout the country, in a courtroom, lawyers are not supposed to use language that is really for the sole purpose of inflaming the passions or emotions of a jury, in a way that is sort of intended to override their reason or intellect. And so, look, in Wisconsin, the legal language is, I mean I would be, i think it’s, I would totally get an argument from somebody saying, look, simply using the phrase sexual assault, which is used exclusively in the Wisconsin criminal code, that is so sterile and clinical and it doesn’t really capture the brutality or the awfulness of the crime itself, particularly for the person who has experienced it, for the victim. And I can get that, but in my view, a courtroom is a fairly clinical, precise place.

 

Jessa: That’s just what I was going to say. To kind of take the other side of that, what juries are tasked with doing is to find facts. Juries are the fact finders.

 

Nick: That’s what I’m saying.

 

Jessa: And that means that they have to examine the evidence that’s given to them, and that is supposed to be done, I would assert, in a neutral and in a clinical way.

 

Nick: I totally agree. And that’s why, that’s why I personally don’t, I mean, look, I’m accused of being somewhat, having somewhat of a clinical personality sometimes, and so perhaps that’s why I don’t really have a problem with it. I, but it, on a more intellectual, rational level, my view is exactly what you just said. Look, we’re here, by the time we arrive in a courtroom, by the time we arrive particularly at a jury trial, the entire process and all the people in it have been through an enormous amount. I mean, you have been through a significant legal process, criminal procedure, setting the law aside, both the defendant and the victim or the alleged victim, had been through an enormous amount in their personal lives. By the time we arrive at a trial, we are not there to sit around and discuss a case in casual terms over a cup of coffee. We’re not, you know..

 

Jessa: No, that’s just what we’re gonna do now on this podcast.

 

Nick: No. Right. That is. But by the time we reach a trial, we’re there for one very precise purpose and that is to determine whether or not there is or is not evidence that proves the defendant guilty of what they’re charged with beyond a reasonable doubt, and that’s the only purpose we’re there for. We’re not there for other purposes. And so, to do that, I believe we have to have very precise, very clear terms of what it is the government is being required to prove the person guilty or not guilty of, and so, I’m okay with clinical language because we are there at that point for a very precise, legal, clinical reason. Now, the subject matter of that undertaking may be terribly emotional and powerful and visceral, and so I think that’s where sort of the disconnect comes in. But, again, a criminal trial is not like anything else that happens anywhere else in our lives or anywhere else in the world. It is a much more formal, formalistic endeavour and it needs to be precise.

 

Jessa: And, I think, you know, one day and I don’t want to get us too off topic from today, but one day, we should talk about the concept of justice in the terms acquittal or conviction versus the kind of justice that I think people envision in terms of being made whole or having some opportunity to heal because, in my view, the criminal justice system is actually just an abysmal failure at providing justice in the sense of, making people whole and allowing them to heal.

 

Nick: That’s right.

 

Jessa: And so, you know, I don’t want to totally deviate, but if you’ve got a reaction to that..

 

Nick: I do have a reaction to that. And I think that could probably be an entire podcast of its own, and perhaps it will be. Perhaps that will be one of our sort of broader policy-type things, but look. In law school, I was part of a group of people who founded a rape advocacy organization and I read a book by Alice Sebold, the woman who wrote “The Lovely Bones”,  a book called “Lucky” that was a memoir of her sexual assault, which I found to be an incredibly powerful piece of writing, and there’s something that she says towards the end of that book that has stuck with me ever since I read it, and the line, and I think I’m gonna get it exactly right. If not, I’m quite close. She says, “Either you save yourself or you remain unsaved”. And, look, she’s not talking about, I mean she was brutally sexually assaulted, raped, you know, by a stranger in a tunnel in Syracuse, New York. She’s not talking about people, you know, the EMTs. She doesn't mean “saved” in that way. She means, sort of more in an emotional and metaphysical way.

 

Jessa: Right.

 

Nick: And the reason I bring that up is because, if any of us expect the criminal justice system to save us in the way or provide salvation or provide catharsis in the way that I think Alice Sebold was talking about in “Lucky”, then I think we’re going to be disappointed because it is a system that is not, number 1, it is not set up to do that. It’s also not intended to do that. I mean, this kind of goes back to something we’ve been talking about throughout this conversation: what the criminal justice system is intended to do, its purpose is to adjudicate cases.

 

Jessa: Yep.

 

Nick: Is to determine whether or not a person is guilty or not guilty of a crime, period. End of story. And there have been some additions to the criminal justice system over the centuries and over the more recent decades that I think have been designed to probably try to address more of the emotional aspect of it, but that is really not its primary function. And so..

 

Jessa: And there’s been, there’ve been movements to try to get away from that, too, because if you think about it, early in American history, jury nullification was a completely acceptable and common argument because the prevailing wisdom of the time was, if this community says “You know what? We don’t consider this a crime. That’s okay.” And that was true, and you as counsel could say more or less “Look, this guy had it coming. You don’t have to convict my guy for having shot him. This guy sucked.” And a community of jurors were free to say “Yeah. We do think that guy sucked and we’re not gonna hold this person criminally responsible.” The laws in almost all 50 states have changed to try and prohibit that sort of argument for defense counsel because they really want us to be looking at, here’s the language of the statute, here are the elements of the crime, and just a brief segue, elements of the crime are, let me do a quick one. Battery in the state of Wisconsin. Number one, it requires that you intended your action. Number 2, it means that you caused someone else pain. Number three, it means that you did that without their consent. Those are the elements of batteries, so the building block of the charge. And you’re gonna hear us use that word a lot. A lot of you, if you’re probably listening to a legal podcast, you probably already know that, so we’re not trying to talk down to anybody. I’m just making sure, I’m told all the time that I talk one million miles a minute, and two, that I use legalistic language without thinking about it, so I’m gonna try and break it down for people and, you know, if it’s getting annoying, just tweet at us or post on our Facebook page or send us an email, tell us that and we’ll try and stop it because we want people to like listening to this.

 

Nick: We do.

 

Jessa: Alright. So, I think that’s kinda, you know, some of the thoughts on the language that we’re using and why it’s important, i would just say, just to kinda wrap that up, you know, one of the things that I bump on so regularly is when I see people refer to people accused of crimes as “rapists”, “child molester” and it makes me think of, like, an old bad joke, which is, you build one bridge and nobody calls you buil-bridger, er, a bridge builder. You build one bridge and no one calls you a bridge builder. You suck one cock, cocksucker. And we seem to do this thing particularly when it comes to sensitive crimes, particularly when we’re talking about sex crimes, that if someone if accused of having committed a crime of a sexual nature, then those really perjorative terms get tossed around quite comfortably. And that’s something that I always cringe at when I see, you know, media or press on things using those words before there’s been a conviction, and certainly, my own personal hell, the comments section of any reporting.

 

Nick: Right. Not good.

 

Jessa: Oh god. The comments sections, I could go on forever and ever about that. But, part of the reason that we’ve been talking about the language is some of the common myths that I hear about the criminal justice system is this whole “getting off on a technicality” idea. And I think a lot of times, when people are talking about technicality, they’re talking about one of two things. They’re either talking about what we’ve been discussing, which is that the actions the accused individual committed don’t fit the specific language of the elements of crimes, even though those actions might be morally reprehensible. And alternatively, I think when people say “getting off on a technicality, somebody’s getting off on a technicality”, what they’re really talking about is the defendant’s constitutional rights were violated and their remedy for that is to exclude evidence or to give them a new trial or to otherwise do something to level the playing field, and try and put them back to even on the presumption of innocence.

 

Nick: Mhmm. Yeah, I mean, that’s usually what I think of when I hear people say “technicality”, that’s what I usually think of is, well, the technicality that you’re referring to is a constitutional right. It is one of the rights guaranteed to us at, you know, or shortly after the founding of our country. And it is, that right comes from one of the documents that is considered to have been a beacon to the rest of the world, and so revolutionary to guarantee these individual rights to all citizens. That, I don’t think of that as a technicality. I think of that as something really really important.

 

Jessa: It’s incredibly important. The constitution is not a technicality and the true irony of that is, all of the internet commentary that’s like “Fuck that guy. He got off on a technicality”, they’re exercising their constitutional right to say that.

 

Nick: It’s a different number.

 

Jessa: Yeah, that’s just the first amendment. Usually the amendments we’re dealing with are four, five and six.

 

Nick: Right.

 

Jessa: So, all of this and talking about the language of sexual assault in particular is our very roundabout way, and you’re gonna learn that about us, too. We’re quite roundabout. It’s our roundabout way of trying to get at the first deep dive case that we’re gonna start in on next week. And, like we told you, we’re new at this. We think it’s gonna be one episode. It might end up being two. It’s hard to say. Surprises all around. But one of the things that came up in this case, Nick, is the outrage that people had because, at an early hearing, there were originally five charges..

 

Nick: That’s right.

 

Jessa: And, at an early hearing, at a preliminary hearing and we’ll explain what that is when we talk about it, two of the charges were dismissed because of what we’ve been describing with the legal language and the facts not fitting that legal language. And there was a huge national conversation about how that felt and what that meant, and in fact, the case we have chosen to do our deep dive in first led to a lot of national conversations about this issue and the issue of sensitive crimes. Because in some ways, the accused, well, and convicted (spoiler alert), but you guys are all gonna know that when we tell you what it is, mirrors your own life so much, Nick, because, you know, swimmer.

 

Nick: Ahh. I was like, wait. Where are you going with this?

 

Jessa: Yeah. Nick swam at Dartmouth in undergrad, so I’m gonna give him shit about his parallels in privilege, but we’re...

 

Nick: Okay. Fair enough. Now I know where you’re going.

 

Jessa: Yeah. 

 

Nick: Now I got it.

 

Jessa: I mean, come on now. We’re going big or going home. We’re gonna talk about Brock Turner next time.

 

Nick: That’s right. And the reason we’re gonna do that is less so because it became such a famous case and more so because that case touched so many, you know, sort of, hotwire issues in criminal justice and particularly, in sensitive crimes, sex crimes, which are, you know, the bulk of what we do at this law firm, that we thought it was particularly fascinating. So, you know, there are issues of privilege there. There are issues, a lot to discuss about, does a case proceed differently based on who the defendant is, and I mean..

 

Jessa: Yes.

 

Nick: I mean, the answer to that question is simply “yes”, but that case brought that into such stark relief.

 

Jessa: Yes.

 

Nick: It was so, I think to most people who observed that case, it was so clear that the outcome there, not necessarily the outcome of the conviction, but the outcome in terms of sentencing..

 

Jessa: Had a huge..

 

Nick: Had a lot to do with who Brock Turner was, and the concern was, well, what if the exact same offense had been perpetrated by someone who was not Brock Turner? Who was not a student at one of the best universities in the world? Who was not a world-class athlete, etc etc? And who wasn’t white? And those are things that we are..

 

Jessa: That we care a lot about.

 

Nick: We care a lot about and are really sensitive to that because, I mean, number one, on an idealistic level, we believe that the system ought to treat people fairly and part of fairness that it shouldn’t, you know, things can’t both be arbitrary and fair. And so, you know, if they’re not arbitrary, they need to be consistent. So there needs to be some measure of consistency in treating like-things alike. And we represent, certainly we do represent some people who come from positions of privilege, we also represent plenty of people who do not. And so, is it fair if we take as true that someone who came from a position of substantially less privilege than Brock Turner did would not have gotten the dispositional outcome that he did. Let’s talk about that.

 

Jessa: And let’s find out if that’s accurate. We’re gonna do some research into that. So the way we’re gonna present this to you is, I think generally speaking, one of us, each time we do a deeper dive into a case, is going to take on the research and advocacy of the prosecution. The other one is going to take on the research and advocacy of the defense, and be prepared to talk about those things. Nick, would you like to prosecute Brock or defend Brock?

 

Nick: I mean, I feel like, with our first deep dive, it’s probably not inappropriate to rely on my background as a prosecutor and let me handle the prosecution side. We can probably role-play and flip-flop over time, but I can start off as the prosecutor.

 

Jessa: Alright. I’ll defend Brock.

 

Nick: Alright.

 

Jessa: So that’s what’s gonna happen next time. I want to tell you guys a little bit about how to find us and follow us and care about us, which is so cool of you. We can be reached at gettingoffpod@gmail.com, that’s our email address. You can follow us on Twitter @gettingoffpod. You can follow us on Instagram @gettingoffpod, and the Getting Podcast has a Facebook page and a Facebook discussion group. Right?

 

Nick: Yeah. Please join it. Please.

 

Jessa: Yeah. So, and we want to hear if there are cases you want to hear us talk about, let us know. Find a way, one of the seven social media ways I’ve just listed. Let us know what that is and we will do our best to talk about it because we want to talk and I guess, you know, I’ll say this. So many of the podcasts that I listen to focus on either death penalty cases or murder cases generally, and I love talking about homicide cases, particularly when there are interesting defenses or affirmative defenses, and I’m sure we’re gonna talk about a lot of homicides over the course of this thing, but we don’t have to just do that, because some of the most important things that happen in the criminal justice system happen with pretty quotidian cases, where, you know, there are issues about stop & frisk, and drug possession cases, and there are all sorts of questions about consent and, you know, what, if testimony should be this sole thing that you can base a conviction on, in conflict crime cases, where it really often is people call “he said-she said”. I don’t like that phrase, but where we’re asking someone to find, beyond a reasonable doubt, a fact based solely on testimony and not on corroborating evidence and those sorts of questions and the way that we learn about how that stuff is handled and how the justice system changes its view over time about that stuff, is part of what we really want to get into. So it doesn’t have to be murder.

 

Nick: No, it doesn’t. In fact, something that Jessa just said reminded me of an article that I was just reading online yesterday. About, I think it might have been South Carolina. Or it was Kentucky. I have to go back and find the article, but it was about the ACLU and several other organizations had produced studies about the administration of justice in, I think, five particular counties in this state, and look. It wasn’t, the problems aren’t what happens in, you know, the one out of a thousand or one out of ten thousand that captures the media’s attention. It’s what happens in the, what Jessa just described as “quotidian” cases, of which dozens or perhaps hundreds move through the court system every single day. And so it is, the practices that happen every day, case in, case out, on the cases that touch an enormous amount of people’s lives that don’t really capture the public’s attention at all. And if there are problematic practices that are happening in that context, that’s where we actually have things that cause wide-spread problems. It’s not in the one murder case that captures the attention. I mean, look. If someone’s constitutional rights are violated in the prosecution of a terrible homicide, that’s something that we’re interested in.

 

Jessa: Yeah.

 

Nick: But on a more macro level, it is the policies and practices that are in place that are problematic that affect dozens and hundreds of people every single day that you’re not gonna be aware of unless you really roll up your sleeves and become intimately familiar with the administration of justice in any particular community, and you see it playing out over and over and over and over again, every hour, every day in court.

 

Jessa: So that’s it for us today. Thank you so much for listening. And we’ll be back next week to start with our first deep dive into Brock Turner. I’m Jessa.

 

Nick: I’m Nick.

 

Jessa: And this is Getting Off.

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