Episode 21: BONUS QUICKIE: Just Jessa -- Q&A
Jessa: Hey everybody. I’m Jessa Nicholson Goetz. And this is a very special episode of Getting Off. This is a quickie with just me. Nick has left us for vacation over the Christmas holiday. And so I thought that in the interest of providing everyone with some extra content for their holiday drives. I have to do about a seven hour one myself, so I know that I am loading up on podcast playlists left and right. That maybe people would like a little extra something to listen to. And so it’s probably gonna be boring because it’s just me. But I thought I’d take the opportunity to talk to you all about some of the questions that I’ve seen pop up on the Facebook page and that I’ve gotten emails about. And try and do some quickie answers. You know. Just for purposes of conversation.
Also, if we’re being totally honest, I had a really shitty day today. And interacting with this community is a lot of fun to me, so I’m hoping it’ll perk up my mood before bed. And just on the subject of the true crime community, one thing that we’ve been trying to do in our last few episodes is give shoutouts to other true crime podcasts that are maybe getting their start or have been going on for a while but people haven’t heard of as much as some of the more traditional ones. You’ve got your Undisclosed, your sort of crime writers on. All of the ones that we become fascinated with like Case File and so many good ones out here. But I want to tell you today just as a starting point about a husband and wife team, Chelsea and David, who host something called Based On A True Crime. And this is really cool to me because they kind of check all the boxes in my interests. One of them’s a true crime junkie. And the other is a horror movie buff, so they decided to do a podcast that covers both of their interests by talking about movies that are based on true crimes. Hence the very literal title. They dedicate half of each episode to telling a true story and the other half to discussing the movie or the way that things were, you know, they happened on the film. And they do some behind the scenes trivia. They offer an opinion before doing the walk-through the film. Their tag line is “Spoilers Abound”. And they’ve done some very literal adaptations like the Clutter family murders and In Cold Blood and some less literal ones like Leopold and Loeb, which was loosely inspired by Murder By Numbers. They’ve also covered some true inspirations for straight up horror movies like David’s personal favorite, A Nightmare On Elm Street. They can be found on all the big podcast streaming apps, Instagram (Based On A True Crime), Twitter (@TrueCrimeBased) and Facebook. So check them out. I think they’re a really cool team and certainly all of that source material, you know, In Cold Blood was a book, when I look back at reading it when I was a freshman in high school, it really had an effect on me that has lasted a long time. That was maybe part of, one of the many books that got me really interested in the practice of criminal defence. So I would encourage you to check them out and I’m going to turn the table to some questions.
So I’ve had so much fun reading the things that everybody, you know, wants to hear about. I’m gonna start with what I think is a fairly common question that criminal defence attorneys generally get. But people have asked some iteration of this: Are there cases that are the best and worst cases you’ve had throughout your career? Are there cases that you just feel like you can’t take because you either think somebody is really really guilty or you just can’t advocate for them? Basically, what do we do with difficult clients or people that are challenging? And, you know, I’d start by saying that when I look at the toughest cases I’ve handled, the toughest cases I’ve handled have always been the cases where I’ve had a fairly firm belief that my client was innocent. Those are the scariest cases for any defence attorney. Because you know that the only thing standing between what could be a wrongful conviction and a prison cell for a client for a lengthy period of time is you. And that’s a lot of pressure. And I lose a lot of sleep those nights because I worry and it makes me sick, you know. I don’t want to do anything wrong and I obsessively prepare for trial to make sure that I give somebody their absolute best shot.
In terms of, are there cases that I just wouldn’t agree to take? I haven’t had one yet. I’ve had a few cases and I’ve probably represented well over 2000 people in my career. And I’m talking about less than 10 cases where I’ve realized that just the relationship between the client and I has deteriorated to the point that advocacy has become difficult. And so in those circumstances, I will file a motion to withdraw and explain to the court that I just don’t think I’m the right fit anymore for whatever reason that the conflict might be happening. Part of that could be me. Part of that could be the client. In terms of, you know. Are there charges or something that I particularly kind of turn my nose up at or uncomfortable with? Whenever you hear just the allegations, things sound pretty bad and it’s only when you dig deeper that you really start to sort out the fact from the fiction. So. You know. The knee jerk cases are typically the ones that are pretty serious and pretty violent, that you go, “Okay. This is gonna be a bad scene.” I can honestly say that the more information I have learned about my clients, the more able I am to empathize with them. And that’s true regardless of what they’ve done or are accused of doing. Sometimes people are guilty. And my response to that is, you know. Number one: it’s not my job to judge them. It’s my job to help them. And I think of that, the best analogy I can offer is one of firefighters. When a firefighter gets a call that there is a fire, they don’t show up and start asking the people whose house or business it is what they did to cause the fire. They put the fire out. And to me, part of the job of being a criminal defence attorney is to say “Okay. Your house is on fire. Let me get you a bucket of water and a hose. Let me be the person who assists with that.” And I don’t need to assess blame or judge somebody for being in that circumstance because that’s not what they’re coming to me for. And there are a lot of other people active in the criminal justice system who will judge them, perhaps more harshly than they should be. Perhaps adequately. But will judge them nonetheless. And that’s, you know, what we have people who pronounce sentences. That’s why we have judges. That’s why we have juries. And so it’s just not my role.
The other thing that I would say about that is that, you know. If everything is done right, if all of the police procedure is correctly handled and if there is a competent, zealous prosecutor and a competent, zealous defence attorney, then those are the cases where you can feel the most comfortable with justice being done. And if any one of those parts falls apart, then I think it causes a question for the whole process. And so. You know. In an ideal world, and maybe this will sound strange. But if everything were done perfectly, there should never be an acquittal at trial because if there’s an acquittal, it means that somewhere along the lines, somebody got something wrong. And that could be a sloppy investigation. It could be that a case was overcharged. Or mischarged. It could be that defence counsel was ineffective. Well, no. It could be that the prosecution was ineffective. Or it could be that the person is actually innocent. And that the right result is reached. I don’t spend a lot of time contemplating, despite this sort of tongue in cheek name of this podcast, Getting Off, when someone gets off, quote, unquote, after a trial, it’s because the state has failed to meet their burden of proof and those are the rules. You know. Those are the rules. And my lane. I love talking about lanes. My lane is to defend the person who comes in and asks me for help. If I can’t find empathy for that person, if I can’t find a way to understand them better than I would’ve if I were just passing them on the street, if I can’t muster up some genuine concern for them, then it would be time for me to hang up my bar card. That would be time for me to set it aside because that’s exactly what I signed up for. And I love that about my job. I love that I have ethical quandaries. You know, that sometimes I don’t feel very good about the thing I know I have to do to hold up my end of the bargain and defend somebody zealously. I like having that opportunity for self reflection. I like trying to find the shades of gray and to really look at things from all angles. To really get to know the whole person, and not just the thing that they’re accused of doing.
I also believe that many people who enter the criminal justice system do so at a very young age. Whether that be in juvenile court proceedings or in adult court. And you know. I think about who I was when I was 17 and one of the cruelest things that anyone could ever do to me would be to tell me “Hey. Who you were when you were 17 or 18 or 19, who you were when you were just trying to figure out where your life was going, that’s who you’re stuck being for the rest of your life. And no matter what you do in the meantime, we’re gonna look back to this decision you made when you were 18 or 19, and we’re gonna decide that that defines you.” And when you’re convicted of a felony at 18 or 19, that follows you for the rest of your life, most of the time, unless there’s some opportunity to expunge a record, which is not anywhere close to a guarantee. And I care about that. And I’m passionate about that. And so that makes it easy to, I guess, not ask some of the questions that people who don’t work in this field ask, which is.. It’s just not what I’m supposed to do in this system. You know. If you’re accused of a sexual assault, if you’re accused of a homicide, if you’re accused of child abuse, there are plenty of people who are lining up to judge you. Whether that be as anonymous internet commentators, whether it be inflammatory reports by the press, whether it be prosecutors who are trying to make names for themselves. There are always lots of people who are doing the job of trying to convict someone accused of a crime. And I believe in our system, that people are entitled to more than just the people pointing fingers. I believe that they’re entitled to have somebody who knows the process and who can be their voice because many of the people that end up in the justice system are marginalized in other aspects of society. So that’s what’s up there.
Some people wanted to know how I convinced Gansner to come over to the dark side. So I’m gonna tell you that story. Nick and I always got along. He was a sensitive crimes prosecutor, did domestic violence, did sex crimes, and we had a lot of cases together. And he was always a guy that I was able to sit down and show things to and he had in him the desire to search for the truth. It’s probably pretty obvious from listening to the two of us that we are very close friends and we’ve worked closely side-by-side for five years now. And before that, we had trials against each other and even in those hotly contested moments, we were able to crack a joke and acknowledge that the other person was doing their job. And those are always my favorite prosecutors. Nick was thinking about changing sides and we actually had a lunch or a happy hour. And he had said “Hey, can I ask some questions about starting a law firm?” And I said “Sure”. And he was, you know, seeking advice about maybe hanging a shingle of his own and I said to him “Well. You know. I would tell you don’t do that. Find a firm that wants to work with you. You’ve got name recognition in this town. You’ve got the ability to come and generate some income.” I am the only one in my office who’s not a Wisconsin native, in terms of the lawyers. So I didn’t have, Nick and Nate, my two partners, grew up in Madison. Our associate attorney, Paisley, grew up in the state of Wisconsin and sort of about an hour away. But that had value to me. And working with somebody who I thought had a high degree of integrity had value to me, so we’re kind of having this conversation. We’re having it over beer. He’s saying “Oh. Okay. Do you know any law firms that would maybe be interested in that?” I kind of looked at him and was, like “Yeah, man. Me. That’s what I’m trying to tell you.” That was sort of my awkward introduction, so we had a couple more meetings, and we talked about it. We talked about the way that we both like to do things. Ultimately, just a few months later, I had him over on my team. And it’s been a really wonderful relationship since then. And I always joke that we are the perfect partners because we have the least conflict out of any relationship that I have ever had, platonic, romantic, whatever. We just gel really well. And that was true before. And it continues to be true. So that’s the story on that.
People asked about hot takes on cases that I’m not gonna cover in full, and one that I got a lot of is O.J. And somebody wanted to know, did I think that his sentencing in the robbery case was fair? And my answer is yes and no. So the law’s sort of screwed up, that you are presumed innocent. If you have a trial and you’re found not guilty, because the presumption of innocence was never overcome, you’re still innocent. At least, in the eyes of the law. And O.J.’s situation was such that everybody in the world, basically, other than the 12 people on that jury, thought that he was very, very, very guilty. And that is an opinion that I certainly share. I am a little bit of an O.J. junkie. I’ve actually read the trial transcripts. I’ve read basically every book that’s come out on it because I have this really weird fixation on the early 90s and a lot of the stuff that was happening in terms of the way that we started nationally to turn to this 24-hour news cycle and cover trials in a way that they weren’t really covered before. And I think there were some really important moments, in terms of the way that we handle all this stuff that started in a lot of ways, with the O.J. Simpson trial. So here’s what I’d say. I think he committed the homicides that he was acquitted of. I stand by that verdict. There are a lot of critiques of how the defence handled things. I don’t share those critiques. I think they did the job they needed to do and presented the case they needed to present in a climate that was very charged. This was post-Rodney King. This was, there was a lot of racial unrest in Los Angeles at the time. And as a defence attorney, if that’s something that you can use to your advantage and to talk about that is powerful and persuasive, I think you do it. So I don’t fault them at all. And I don’t fault the jury at all. They were not convinced that there was proof beyond a reasonable doubt. I may have reached a different conclusion, based on the evidence. But another thing you have to remember about that is that was in 1994. DNA was not known to the general public. There was no CSI. This stuff was all really new and people didn’t trust the science.
And I would just take a brief sidebar to say that maybe we shouldn’t always trust the science. Because 20, 30 years ago, we were using hair comparisons and people would say “Oh yep. This hair is consistent with so-and-so.” This was before the advent of the DNA. And lots of people have been exonerated because now that we have better testing, the DNA says no, even though the hair match said yes. And so it’s important to be critical and to cross examine new pieces of evidence and science because while it might look really good, there could be problems with it, too. And I think that’s important to consider.
People also want to know how do I deal with people who creep me out or possibly scare you? Have I had clients who gave me the bad vibe? I have. I try and set really appropriate boundaries with my clients. I let them know. Usually if someone is doing something that creeps me out, it’s gonna creep a jury out. And so we have those conversations, and they’re not always comfortable, but they are always frank. And we just establish the best boundaries we can. And if those are crossed, then I don’t hesitate to say “Okay. This relationship isn’t working”. But that happens very, very rarely. And once I agree to take a case on, absent any extraordinary circumstance, I do everything I can do to be able to see that case through because that’s important to me and I think that’s a commitment you have to make in this profession.
Some other people had, oh. To go back to O.J. Another question was was he sentenced unfairly in Vegas? And my yes and no is based on this: judges are able to take into account the character of an offender when they’re sentencing them. And character can be defined in a very broad way at a sentencing hearing. Even conduct that somebody has been acquitted of can be considered at sentencing. So do I think that the armed robbery sentence was a lot more about the homicides than it was about the armed robbery? I absolutely do. Is the judge able to draw a conclusion that there was a finding of liability in that death against him because the civil suit, you know, that concluded in favor of the Brown family and the Ron Goldman family. So while I would obviously be screaming from the rooftops, you gotta sentence him on what he’s here for, you should look at that. It’s not an unfair consideration, to the extent that it goes to character. So that would’ve, had I been his defence attorney in the robbery case, I would have been upset with the sentence because I would’ve felt like they were taking a second swing at what a perceived unjust verdict had rendered. But legally speaking, I think that the judge was entitled to draw whatever conclusions he or she drew about the veracity of the claim that perhaps this was a guy who committed a homicide. Well. A double homicide. So those are my thoughts on that.
Other people wanted to know, and I love this. If somebody sends you an unsolicited dick pic, are you allowed to redistribute it? And my answer is probably not. You know. There’s arguably not a reasonable expectation of privacy if you’re just putting your junk out on the internet for the world to see or sliding into somebody’s DM. I think that’s what kids are calling that these days. But you know. When in doubt, don’t share depictions of nudity of other people, whether that was given to you because you wanted it or didn’t. I would just say, err on the side of caution and don’t be a dick about the dick pics. So that’s what I would say about that.
Some other people asked about federal litigation. And I’m gonna punt on that one because my other business partner, Nathan Otis, is gonna guest sometime in the future and talk about the federal system. So that’s, you know. We’ll get to that. We will absolutely get to that. And we can talk about how that works in detail, when I’ve got somebody who’s more of an expert in that area than I am. I don’t go in the blue building in my town. The western district of Wisconsin is a notoriously fast docket. We’ve had a lot of colorful personalities on the bench over the years. And the thing about federal court is the vast majority of things that happen there, in terms of criminal cases, are drug related. Drug law, drug defence is not an area that I have a particularly strong expertise. I definitely feel most comfortable in the realm of sensitive crimes. The Sixth Amendment litigation that goes with that is some of my most intellectually engaging law questions. I mean, I even have the Six Amendment tattooed on my back. Confrontation clause stuff, that’s all the really cool geek-out intellectual stuff for me. The Fourth Amendment has never had that same allure, and so I didn’t focus on developing a drug practice, and much of what happens in federal cases are drug-related charges. The area that I practice law in, we don’t see a lot of mob prosecutions or RICO prosecutions, at least not to the extent that Chicago would or New York. And there are child pornography cases that happen in federal court, but again, those tend to be a little bit less about Six Amendment issues and a little bit more about Fourth Amendment issues. And so it’s just not my bailiwick, so I’m not gonna try to speak completely out of school about that. So those are the answers there.
I had a really interesting question about the NGI discussion and why are personality disorders or being a psychopath not considered a mental disease. Personality disorders are considered mental diseases. Being a psychopath is not because it’s just not classified in the DSM. And there’s been a lot of debate about how to handle that. The personality disorders, though, for reasons that go through a lot of case law, if people feel that you’re able to control your actions, and people with personality disorders tend to perceive reality and to understand the difference between right and wrong. They just have tilted views of it. The law has traditionally said, “Well, just because you’re antisocial by nature, that doesn’t give you an excuse.” That the the idea of not being criminally responsible lies in the idea that the reason for that is the reason we do that is it should be about people who are unable to distinguish the difference between right or wrong or unable to conform their conduct to the law. Many personality disorders have very clear understandings of what’s right and wrong, and would be able to conform to the law, but because of their disorder, perhaps or because of a lack of engagement in treatment, they don’t choose to comport their behaviour. And so, you know. Not guilty by reason of mental defect is supposed to be a pretty special circumstance. And that’s reserved for the most egregious cases. Now, is somebody who’s got antisocial personality disorder more likely to commit crimes? Yes. I think they are. I have a brand new puppy. And she is breathing into the microphone, so that’s pretty cute, as we sit here. Say hi, Alibi! Hello. Hi. And yes. My dog is named Alibi. My other dog is named Avon Barksdale. That’s a Wire reference, for any of you that care. Anyway. Those are my little dogs. They’re not that little. But they’re fun. And that’s been a fun. We just adopted our second one. Alibi just came home with us earlier this week, so that’s a lot of fun, too. I know you guys probably don’t care about my dogs. But because it’s just me, and I don’t have Nick to say “literally” and things like “a hoedown throwdown”, I’m just sitting here having this monologue. So you know. There’s that.
Best and worst cases that I’ve dealt with throughout my career. I have had, early on, when I took public defender overflow cases, and was working with clients who hadn’t chosen me. Now, I don’t really do a lot of court appointed or public defender work. I’ll take court appointments on occasion, as more of a pro-bono thing than anything else, because it is at a reduced rate, but I don’t take public defender work anymore. Some of those were really challenging because I was very new. And a lot of these guys have been through the system multiple times. And you’ve heard the phrase jailhouse lawyer. Some of those guys really were. And I was 23 when I started practicing law. I wasn’t really prepared for a lot of the stuff that was gonna happen. I remember walking into the lockup before arguing bail the first time, and just walking down this hall of cells and I was 21, cause I was an intern at a public defender’s office. And in the only suit I owned, holding my briefcase. You know, and these guys are just hollering at me through these bars and it was very intimidating. And I didn’t know what to do, and so I dropped my briefcase and turned around and let out a wolf whistle and just said “What? Is that what you want? What do you want? You want me to take my jacket off and then are we gonna be fuckin done?” Because fake it til you make it. And my supervising attorney kind of laughed at that, and was kind of like “Okay. You’re gonna be fine.” But you know, if I’m telling the truth, I went to my car that day and cried. And at first, those first few years working with people who didn’t respect me and really had no reason to because I hadn’t made a name for myself the way that I am told I have now. I understand why they would because this kid is being sent in from public defender overflow case land, and she’s not real savvy compared to somebody with 16 prior convictions. And so those first two years, I probably had a lot of worst cases. Not because they were particularly violent or gruesome, but because I didn’t have the confidence as a litigator that I have now after, you know, 12 years of practice and dozens of jury trials. So those were always hard.
Whenever a client’s family is a really kind-hearted family and I have to watch people go to prison and then sit with the family and comfort the family and hear about all the things about this person that you don’t necessarily see from a criminal complaint and how much they’ll be missed. Those are hard cases and those are hard times. It’s not always a happy job. But some of the best cases I’ve had have been when I’ve been able to have the good fortune of helping somebody when they were young, and then they stay in touch, and they invite me to their college graduation or send me a Christmas card, so I can see that they’ve gotten married and had a baby, or that they’re doing well. I do have clients, even from many years ago, who stay in touch and who reach out. And those are very rewarding and just mean the world to me. And so, you know. I don’t know that any one case is appropriate for me to talk about, but those are the kind of things that I would say are highs and lows.
Realistically, here’s the other thing. I’m a competitor. I’m a competitive person. One of the things that’s actually really cool about my job on a day to day basis is I get to try and win. I have a team, and I love that. I’ve always loved teams. I’ve always loved having a side and making an argument and being part of a debate. And I like winning. And so, you know. Some of my favorite cases are cases I’ve won. I had a homicide trial in 2013. Loved my client. Very sad facts. He was acquitted and I won’t ever forget him squeezing my hand as the jury came in, and what that felt like to hear that “not guilty”, which I thought was absolutely the right result. I was not convinced that he was guilty of the homicide he was charged with. And you know. Those days are amazing.
There are a lot of bad days, too. Today was one of those bad days for me. There are days where people you care about go to prison for 30 years. There are days where people’s girlfriends or wives or children are left without any idea of how they’re gonna support themselves because of something nobody ever asked them about. These collateral of victims of criminal behaviour where, you know, somebody’s father is being taken away from them and going to prison. And probably one of the reasons that I gravitated towards the types of crimes that I tend to focus on was because it was very hard for me, early on, to see people go to prison for simple drug offences. And to see the havoc that that wreaks on a family. And how destructive that is to our family units in society. And I do believe, and this is a political thing, but I believe it. I do believe that we need to be treating addiction with treatment and not with incarceration. I do believe that while there are many people who perhaps don’t fit the legal definition of NGI, that they have serious mental health issues and I think prison is a terrible place to attempt to address mental health issues. And so when I have things like that, where something isn’t quite to NGI level, but I know that my client has serious struggles in the mental health department, those are tough cases. And it’s tough to see that there’s not a good fit for where this person should go. In some states, not in my state, but in some states, they have something called “guilty but mentally ill” where it sort of splits it up into treatment, and then you serve a sentence. And maybe I would feel a little better about some of those cases if that was an option that was available routinely in Wisconsin, and it is not.
We do, however, have a number of diversion courts, like veteran’s court, where we can address some of the specific issues about reentry after serving in combat. And I’ve represented a lot of vets over the years, and I think that having a separate area that knows what they’ve been through is a really useful tool. And so those are rewarding, to see that we can actually get somebody help. Look. You put somebody in a jail cell. That fixes it for as long as they’re in the jail cell, maybe. If you can actually address the underlying issues with people, then you can start to fix the world. And it might sound cheesy and it might sound lame. And I’m not nearly so delusional to think that I could save the whole world. But I do like to think that maybe I can make a street or two in my home county a little bit better off. And maybe I can help keep some families together. And maybe I can say to some people who are grieving the very real loss of loved ones who are incarcerated “You know what? I understand. And it’s okay that you still love this person. And even if nobody else will say that to you, even if you’re completely alone in that, and your friends don’t understand it, and your spouse doesn’t understand it, there are people out there, and many of us are criminal defence attorneys, that do get that.” And we get how hard that is for those people.
And you know. It’s very important that on the other side of that, there are victim’s rights advocates, who make sure that victims are being heard cause that’s part of the criminal justice system, too. And I actually worked in victim’s rights. I worked at a rape crisis domestic violence shelter prior to attending law school. And so I do like to think that the way that I practice law in particular tries to honor the pain that exists with victims, but also, do what I need to do for my client.
So those are a few of the questions and answers. I’m gonna do another one of these later this week. Again, just to boost the content for you guys because I know lots of people are gonna have longer drives. So this has been a quickie. I’m Jessa Nicholson Goetz. This is Getting Off. You can follow us at email@example.com. Well. You can email us there. You can follow us on Twitter and Facebook and Instagram @gettingoffpod. The Facebook group continues to be a hilarious, insightful, thoughtful, nuanced group of people who, I just want to take all of you and put you all on my juries because even if you didn’t buy what I was selling, I would know that you were thinking about it. And that you were giving people a fair shake. And I respect and admire that so much. And it has been a very real pleasure for me to get to know this community. Last hot take, and then I’m done. For those of you who came to me and to Nick via Deliberations, lovely podcast by Chelsea Cox. The Samantha Hall sentencing hearing came out earlier this week and she got time. Spoiler alert. I won’t tell you how much, if you haven’t listened to it yet. But I will say this. I was seriously bummed. Even though I knew it was coming because Chelsea and I had talked about it. I knew that that was gonna have to happen. I was, nonetheless, so sad to hear her sentence. So thanks for letting me monologue at you tonight. I hope a little of this was interesting. If not, Nick will be back and the rest of our R. Kelly stuff is ready to go. We recorded it all before he took off, and you’ll get your regular Wednesday release on that, and again on Sunday. But until then, thank you so much for listening and I hope that a little bit of this said something that was worthwhile. Thanks guys. Really glad to have you.