Episode 23: Hit It & Quit It: Holiday Bonus Quickie #2 with Jessa


Jessa: Hey everybody. It’s just me. Just Jessa again today, here at Getting Off. Well. That’s not entirely true. I do have my new puppy sitting next to me. Hello Alibi. She’s very sleepy. But I am continuing to try and do some Q&A’s to put out a little bit of quickie holiday content for people that drive. And my motivation for this is simply that I have to drive a lot starting Friday to get to my parents’ home in Michigan. And my husband and I historically during these drives have had really great conversations about stuff that we’ve listened to on different podcasts. My introduction to podcasts was actually the first season of Serial, and we happened upon that on a New Year’s Day drive from Detroit, Michigan back to Madison, Wisconsin, where we live. We would listen to an episode, then stop and talk about what was going on and whether or not we thought that the evidence being presented was persuasive, then we would go on to the next one. Even though it took, like, 11 hours because Chicago traffic was terrible, we were engaged and happy and that’s what I’m trying to give to you guys. And so, as a result, in addition to R. Kelly part 2, which I released just a few minutes ago, however, Nick and I recorded it before he took off for his vacation, that is up and I want to give you this in addition to it. I also have cajoled our third business partner, Nate Otis, into coming on on Friday afternoon and doing an episode to talk about federal law, federal cases, because he’s our federal expert and some of you guys have had questions about federal law versus state laws and things like that and how things work in federal court. I would much rather have him do it. You can also meet the nice one out of the three of us. Nick and I are fucking assholes, and he’s a delight. You’ll like him. It’ll be fun.


But I wanted to pick up and answer some more questions from people who had written in, either via email or via Facebook and go from there. And let me start by saying that if you’re like me, and you’re looking for podcasts for holiday driving, I want to point you to somebody. And I’ve been trying to do this, more and more, to celebrate the true crime community and all the things that people are doing to talk about these sort of issues. And one that I have gotten into lately is The True Crime Enthusiast podcast. So number one: dude has a totally sexy accent. And I’m an American and a midwesterner, which means I’m cursed with the most nasal and terrible accent that anyone could ever have. This guy focuses on UK crimes. It started out as a blog and it’s made the jump into the podcast. Paul is sexy accent’s name. He has a name. He looks at cases and does in-depth true crime analysis, either solved or unsolved cases, but they’re usually UK, lesser known or obscure cases. You can follow him on Facebook, on Twitter, on Instagram. It looks like tc_enthusiast, True Crime Enthusiast, and The True Crime Enthusiast are all sort of the handles, as well as TrueCrimeEnthusiast@gmail.com. I actually just finished listening to an episode of his on my drive into work today, and was very intrigued and very interested. So check him out while you are going through the downloading process. Things are well written and well researched there, and I always appreciate that.


So. Q&A. We’re back to this. Somebody asked, is being a lawyer in real life like being a lawyer on TV? My first answer is yes. My second answer is no. So by way of first answer: there is dramatic-ass shit that happens in courtrooms. And that’s the best way I can say it. I’ve seen lots of tears. I’ve seen people throw things. I have personally been lunged at and attacked by at least one client. Probably more than that. We’ve seen mistrials as a firm because witnesses have meltdowns and start screaming matches. That’s actually Gansner’s story, so I’ll let him tell you that one in detail, if he ever has the time. But there’s a lot of drama. And a good cross-examination is like TV stuff. It totally is. You know. And that sort of thrill and that anticipation and the high-level of human intensity and drama, that absolutely exists in real life. We’re not nearly as good looking as television lawyers. I’m sure Nick and Nate would both say, “Speak for yourself”, but, you know. There is more “ums” and “uhhs” and pauses. There are very often not sort of those Perry Mason moments of “gotcha” on the witness stand during cross-examination, but I have had those, and those do exist. And all of that is very real. The biggest thing that is different from TV is the amount of time that we spend sitting in courtrooms, waiting for it to be our turn. If you were to turn this into a television show, like 80% of my life would be me playing Candy Crush on my cellphone in the back of a courtroom, waiting to go on the record. Sometimes I check email. But that’s pretty much what we’re talking about there. And the waiting and the delays, both in how long it takes for a case to be charged and ultimately, go to trial, you know. When you watch Law & Order, they do the “duh duh” and cut to the new date in the trial branch. That’s months, if not years, in real life. So there are some things that are pretty different and less fast paced, but overall, yeah. I think being a criminal lawyer is probably about the closest to being a TV lawyer you can be. And, in fact, you know. Sometimes I end up on the news, so sometimes I do get to be a TV lawyer. “Get to” is a strong word. “Have to” is probably the right phrase. So yeah. I would say that.


Somebody else asked me some personal questions like, how did I decide to go to law school? I was not a person who always knew that I wanted to be a lawyer. I graduated from college a year early and when I announced my plan to do that, my parents kind of sat me down and said “Well, you should probably figure out what you’re gonna do next.” And so I made a list of all the things I thought I could be happy doing, and law school or being a lawyer was on it. My parents kind of said “Well, it seems like you’ll probably not starve to death doing that, whereas being an art history professor, you really would run a real risk of that. So why don’t you try that?” So I applied to law school. I had always had an interest in criminal law. I worked in victims’ rights prior to attending law school. And knew that I wasn’t going to be a government lawyer because I’m too anti-authority. So while criminal law interested me, I knew I wasn’t cut out to be a prosecutor, so I sort of thought, well, I can never really be a defence attorney. So I guess that’s not gonna be available to me and I’ll have to figure something else out. As I went through the law school process, I realized that, more or less, every other aspect is pretty boring to me in comparison. Except for, you know, your hardcore constitutional legal concepts which I think you have to have gone to Harvard and graduated in 1966 to be a true constitutional lawyer. I consider most of the work that I and my colleagues do with the Fourth, Fifth, and Sixth Amendment to be constitutional legal work, but you know what I’m talking. That sort of high society constitutional analysis. And I did not go to Harvard Law School in 1968, so I am not available to have that job. But as I went through the law school process, even though I had initially thought “Yeah. Defence wouldn’t really be for me”, I had some people in my life have some issues with the criminal justice system. And those are their stories. They’re not my stories to tell, so I won’t tell them here. But I what I will say is that watching that and seeing these people that I love and that I care about and that I know to have good in them, from all of the time I’ve spent with them, be treated like a number or like someone less than human. Someone that’s just not the same quality of person that you or I are, solely because they were in a courtroom, sitting at the defence table. That was very hard for me to watch. And that was probably what stoked my idea that, you know, “Maybe defence would be something I could do after all.” Because like a lot of people, the question is always “How do you defend guilty people?” and when I was in law school, fifteen years ago, I didn’t have an easy answer. I do now. And we talked about that a little last time. But that was a big influence on that.


The other thing that I’ll tell you guys in terms of my personal life is that I’m a storyteller. I’ve always been a storyteller. I love hearing stories. I love telling stories. I like learning about people and trying to understand people. When I was single and would meet guys in bars, I used to ask them to tell me a story and it could be about anything. And if it wasn’t about them, and it wasn’t funny or trying to be funny, those were always the guys that I liked the best. I have great friends who are literature professors and publishers and people who are involved in the world of fiction and non-fiction and storytelling. And one of the things that’s so amazing about the practice of law is that you get to, at least the type of law I practice, is you get to be a storyteller. And you get to do that in an oral tradition way. And part of that is why the podcast medium is attractive to me because, at the end of the day, it’s just me and a microphone and Nick and a microphone and our stories. And the narratives that we want to tell. And I think there’s something special about oral tradition. And I think there’s something special about standing up and telling a story out loud. And I’m drawn to that. I used to do a lot of creative writing. I still do occasionally, do creative writing. That’s a hobby. It’s not a career. I have no delusions about that, though there is an old joke that every lawyer has a Microsoft Word document saved that starts with “Chapter 1”. And I’m not entirely outside of that stereotype. That said, this is creative to me. Learning to tell a story in a way that is persuasive and that works with my body language and how I use my hands and when I pause and what verbs I use, what nouns I use to convey this message. Those are really interesting and intellectually engaging parts of the practice of trial litigation to me. So that’s another thing that probably drew me into that.


I have a lot of reasons. This is a really great career fit for me, for any number of things. Another natural strength that I happen to have is I’m quick on my feet. And being quick on your feet is an important part of being a trial lawyer. I usually anticipate the objections. I usually can come up with a better argument faster. That doesn’t mean that if you gave everybody a week, that my argument would be the best. But if you gave me five minutes, it’s usually pretty good. And I like that push and pull. I like that tension. So that’s, you know, a few of the many reasons I would toss in there. Having read In Cold Blood and To Kill A Mockingbird in high school and loving those books, and then as I got a little older, The Executioner’s Song and the companion story, Shot In The Heart by Gary Gilmore’s younger brother, Mikal Gilmore. Those stories affected me immensely and really strengthened that passion that I have. So those are some of the reasons. I also, at this point, can’t imagine doing anything else. Where am I gonna get the crazy stories that I have? Am I gonna sit at a desk somewhere and write contracts? If that’s your thing, that’s cool. But I’m not gonna be able to tell a story about somebody coming out, holding a book over her head that says “How To Fire Your Lawyer” in shackles, with, like, toilet paper wrapped around her glasses when I’m sitting at a desk writing contracts. That’s a story that I get for being in the trenches everyday. And I’m the most comfortable in the trenches. I’m the most comfortable working with people, doing that sort of day to day work where it’s not about higher principles so much as the facts and the justice of that particular case. That’s where I like to live. And I have a lot of respect for people who live in different places. But that’s the way that I enter the world and the way that I approach the world.


Somebody asked if Nick was my first choice for this podcast. And the answer to that and I’m not just saying this because I’m pretty sure he’ll listen to it. My answer to that is absolutely yes. Nick and I have tried cases together. We’ve tried gnarly, long, brutal cases together. We have seen each other in every aspect of this career. The highs and lows and everything in between. And he and I share so many opinions and so many views, but we also enter the world in really different ways. Because he does have almost a decade of experience of being a prosecutor, and that’s something I never did. And so he’s also great to sort of balance and point out things that maybe my very pro-defence mindset wouldn’t necessarily see. That’s not to take away from the zealous advocacy that Nick always engages in with his clients. But it’s a nice conversation. We complement each other well. We’re also used to putting on the Nick and Jessa show. We present a lot. We teach other lawyers about things like we’ve talked about on this podcast. And so I think we hope, at least, that we play off each other reasonably well and that you guys enjoy it. That seems to be consistent with the feedback we’re getting. So that’s awesome. And I’m glad.


Somebody else asked a question about NGI and head trauma and basically, I’m really oversimplifying this. What if somebody causes their own brain damage? And the example that was given was people that are chronic drug and alcohol abusers, such that they ultimately have brain damage as a result. And then there was a comparison drawn to, well, isn’t that kind of true for CTE, which is what we talked about regarding Aaron Hernandez. Because he chose to play football. And I think that it’s important to clarify one point. While it is true that being under the influence of alcohol or drugs is typically not a defence to any behavior that someone engages in, if your brain turns into mush for whatever reason, the mush brain is gonna drive that. So whether I fall off a balcony and crack my head open and become brain damaged or I damage my brain because I decide it’s a good idea to take, like, 37 hits of acid, the brain damage is real. And it’s the damage that drives whether or not somebody can understand the difference between right and wrong, or is capable of conforming their conduct to the law. It’s not necessarily the source of the damage that drives that. So I would say that even if people engage in behaviour that is higher risk like playing football, which we’re learning that pretty rapidly, even though 20 years ago, that conversation wasn’t happening in the way that it happens now. But or takes the 37 hits of acid, the important question is: are they able to understand these problems? Are they able to tell the difference between right and wrong, and can they conform their conduct to the law? And if they are unable to do those things, then regardless of the ultimate source of the brain damage, I would assert that NGI is still appropriate. So that’s another question. I did want to tackle that, as well.


A lot of people have asked for hot takes on some different types of cases. Somebody pointed me to the Toy Box Killer. I’m gonna save that one because I want Gansner to jump in on that because that’s a fascinating story, and terrifying. So pro-tip: everybody should google that because, jesus god.


Another request was for Brendan Dassey. That breaks my heart. That case breaks my heart. This recent from the Seventh Circuit breaks my heart. I have not seen the entirety of the purported confession. I’ve only seen what was played on Making A Murderer. I do also know the lead prosecutor in the Dassey case, Tom Fallon. That’s not Ken Kratz, the guy that was the lead in Steven Avery. And I know Tom Fallon to be an upright man with a lot of personal and professional integrity. And he practices law in Madison. So I know that he has shared his views publicly on a variety of topics, including that the documentary perhaps misled or omitted certain facts that were part of the discussion that confession to slant it. I don’t have any information to either confirm or refute that because I’ve only seen what was played in the documentary. If what was played in the documentary is an accurate representation of the way that that interview went, I think that interview is absolute bullshit. And the only person that I’m more upset with than the police who led Brendan Dassey to give those answers is the incredibly sad excuse for a trial attorney he had that allowed all of these interviews to happen, who did absolutely nothing to protect him, and who was subsequently sanctioned for that behaviour. And that’s what I can say about that. So do I think that false confessions happen? I do. Do I think that this was likely a false confession? I do. There was a lot of demonstrable cognitive delay when you listened to Brendan Dassey talk. I mean, while I was watching that documentary, one thing that I was struck by was that he was talking to his mother and was asking what the word “inconsistent” meant? This was not a sophisticated kid. And so I am inclined to have a lot of empathy there.


I also understand that juries don’t like to assume that people would confess falsely because most of us like to think that we would never say something, that we would never, ever, ever, say that we did something we didn’t do. The problem with that is the social science data really doesn’t support our belief that that’s true about ourselves. And in fact, most people are actually quite suggestible, and are inclined to go along with authority. And if you’re interested in reading more about that, I would suggest you pick up a copy of Philip Zimbardo’s “The Lucifer Effect” which talks about the way that people get sucked in to sort of mob mentalities, the psychological ways that that happens. And Doctor Zimbardo, by the way, was the psychologist behind the Stanford Prison Experiment. And he goes through in his book and talks about three things. He talks about people that engage in really antisocial behaviour, criminal behaviour, as part of a group think. And then he talks about bystanders, and why, and I’m sure that if you guys are listening to this podcast, you’ve read about at least one true crime story where there were dozens, if not hundreds, of witnesses that just stood by and did nothing. We’ve all heard those stories and that has resulted in good samaritan laws being passed in many states that no longer will allow you to just be a bystander. But he then covers, at the end, heroes and what makes people be different and speak out. And it’s a dense book. It’s a lot of really kind of intense psych stuff. Took me, you know, a lot of reading and highlighting, but it’s worth it if that’s a thing you’re interested in. So apparently, I’m giving book recommendations, as well. Not sure if there’s a book on tape for travellers. But if you’re flying on a plane, you can certainly pick it up.


Let’s see. Other questions that people asked. There was a question about how laws can vary so much from state to state. And I think my short answer, my hot take, is because our country is fucked up. The longer answer is we have the Ninth and Tenth Amendment which allows states to make a lot of decisions that, you know. If the federal government hasn’t explicitly made a decision, everything else is left to the states. That’s an old throwback to the historical founding of this country and wanting to make sure that local municipalities were able to have control over their own domain, and so each state has been able to develop different laws. They are similar. A lot of the things are similar, but each state is left to sort of conduct themselves accordingly. And you know. Some states choose to have the death penalty which, at least as of right now, is still acceptable under Supreme Court law. There was a period of time where the Supreme Court of the United States actually suspended executions nationwide. But right now, it’s still okay and acceptable. But some states, in my view, evolved beyond that and said “We’re not gonna subject people to this sort of sentence.”


Somebody else asked about sentencing disparities between state and state. And let me tell you this. Sentencing disparities exist not just from state to state, but from county to county. And I’ll give you a perfect example that’s local to my life. My home county is Dane County. That is where Madison, Wisconsin, is located. In Dane County, a previous District Attorney announced that we were decriminalizing marijuana for personal use. So there was this unwritten policy that said, if you get caught with less than 25 grams of marijuana, we’re not gonna prosecute you. We’re gonna write you a ticket. I’m also a University of Michigan undergrad graduate, and that was home of the hash bash which involved getting a 25 dollar ticket if you were smoking pot on the street. A neighbouring county to Dane County is a place called Columbia County. Those people will charge to the absolute max and insist on jail time for simple marijuana possession. And in Wisconsin, everybody drink because I just said “In Wisconsin”. But in Wisconsin, if you are convicted once of marijuana possession, it’s a misdemeanor. If you are caught and arrested and charged a second time, it becomes a felony. And many, many counties in Wisconsin just keep charging it out as a misdemeanor, whether it’s somebody’s second time or eighth time getting caught with personal-use marijuana. Columbia County will charge it as the felony offence every single time and they will not negotiate a plea down to a misdemeanor, and so the result of that is if you are unlucky enough to get caught with pot for a second time in your life in Columbia County, you’re probably gonna end up a convicted felon. And if you got caught with pot a second time in Dane County, you probably wouldn’t be arrested at all. And that’s pretty screwed up. And there’s not a lot we can do about that because we give trial courts an extraordinary amount of discretion in sentencing. And we give prosecutors almost unfettered discretion in how they charge cases. And they can choose to charge that as a felony because that’s on the books.


The last question that I’ll answer tonight was somebody asked, can you talk about weird laws? I’m just gonna give you guys my favorite weird Wisconsin law. In Wisconsin, and this is true, it is a felony. That’s right. A felony. To dye animals different colors, specifically, baby chickens. I can only assume that this came as a result of some type of Easter malfunction where somebody was, like, dying little baby chicks blue and pink and yellow and whatever, and they wanted to stop that. But that is absolutely the silliest law that I can think of on the books. Adultery is also still on the books here. And that’s sort of a silly law to me because while I’m not suggesting that everyone commit adultery, I’m not sure that we really want to criminalize behaviour that happens between consenting adults. So you know. The Easter egg, the Easter animals is my favorite silly law. There are lots of silly laws. There’s a county, Brock County, that whenever somebody’s charged with drug possession, they actually also charge a tax stamp violation because, you know. There’s this sort of old thing where people could apply for tax stamps for their marijuana sales, then of course, it was a sting, and they would just arrest people for possessing marijuana because you had to bring the marijuana to show that you’re possessing it to get your tax stamp. That law has sort of fallen out of favor, yet there’s this weird county in Wisconsin that does it. So those are some of my favorite and I’m using air quotes there, weird laws.


This was a quickie. This was just Jessa from Jessa and Nick’s Getting Off podcast. You can follow us on Twitter and on Instagram and on Facebook. You should join our Facebook group. We are at Getting Off Pod at all of those places. The Facebook group is called the Getting Off Podcast. You should check us out. You should also rate us on Apple’s Podcast app or any other app that allows you to rate us. If you like us, that helps us. Again, I’m not really sure how it helps us, but people who know more about this than I do keep telling me it does, so I’m gonna ask you to help me. So that’s the deal. Continue to enjoy your holidays. Check out our R. Kelly episode and I will try and bring you one more bonus episode with my business partner, Nate Otis, this week. That was me. That was Getting Off. This was a quickie. Thanks so much.