SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_03 0:31

Hello, everybody. This is John Katz at Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Northern Virginia. I am ecstatic, delighted, and more than happy to have today's guest, which is Jerry Zerkin. After a series of martial arts guests and mindfulness guests, uh intermittent with some criminal defense guests, this is the real McCoy. And you know how it is. I don't want to do too long an introduction, but I'm going to tell you why I have him on. This is a man who entered law school, if I'm not mistaken, uh, around the time that I was in second grade. And uh it goes from there. And he chose to go to Virginia when it was the cradle, not only of the Confederacy, which it will always be, but the cradle of the death penalty. We'll find out why he chose to do that. And we're going to find out my most burning question with all the criminal defendants, criminal defense lawyers I have on is how to beat the prosecution. Jerry Zirkin, please introduce yourself.

SPEAKER_02 1:32

Hi, John. Um, yes. So uh I am uh partly a criminal defense attorney. I did spent much of my career doing post-conviction work, habeas corpus, uh, and a lot of it centered around the death penalty for most of my career. Uh my coming to Virginia and my becoming a member of the bar coincided exactly with reinstatement of the death penalty. Um and just sort of by circumstance, I was asked to uh be local counsel in one of the first cases uh that was facing execution, James Briley, to be local counsel for a major uh DC firm, Arald Importer. And that one thing led to another, and uh and that ended up really becoming my much of my life's work.

SPEAKER_03 2:22

That is this yes, that is the springboard for hours of conversation I love to have with you, but I interrupted you and I don't want to do that. So please continue.

SPEAKER_02 2:30

No, so I so I came here. Um I I went to uh I went to Brandeis University undergraduate, which was a hotbed of political activity. It was it was, I always say that I was born at the exact right time because I was uh class of uh college class of 1971. So it was uh the uh you know uh Vietnam, Vietnam protest, civil rights at its height. Uh and Brandeis certainly in terms of of anti-war activity was uh uh a major uh player, if you will. We had uh the uh there was a student strike following uh the Kent State uh murders.

SPEAKER_01 3:16

Right.

SPEAKER_02 3:17

There was a national student strike, uh, and the National Strike Center was actually located at Brandeis. Uh we we they gathered all of the information about all of the activity going on at college campuses all over the country. I actually wasn't involved with that. I was involved with sort of the our our own campus activity. Um and uh so that's uh um that was sort of much much of my time, you know, was at Brandeis was spent. Uh I mean I did go to some classes, I have to say, uh, but but beyond that I was uh evolved uh politically. Uh I was quite active.

SPEAKER_03 4:00

We can talk about that part of your life before you went to law school then. You were born where and where did you grow up?

SPEAKER_02 4:06

Well, excuse me, I was born in uh in Queens, New York. Uh lived there till uh lived in the New York area until I was 10. We moved to Bethesda, Maryland, uh, went through high school in Bethesda, then in uh 1967 went to uh uh went to Brandeis. Um significant timing only because of the fact that uh 1967 uh in uh Boston Red Sox lore is known as the Impossible Dream Year, uh when they when there was a uh a three-way American League pennant race down to the last day of the season, and the Red Sox came on top, and I was hooked as a Red Sox fan, and I brought up my children and converted my wife uh along the way. So uh yeah. Uh excuse me. Where did you go to high school? Went to Walter Johnson High School. Uh you went to Walter Johnson High School in Beth Bethesda, okay.

SPEAKER_03 5:05

And so therefore you would have graduated from high school in 1967, right? Right. Yeah. Were you going to any of the anti-war or other protests in DC while you were living in Bethesda?

SPEAKER_02 5:17

So you know it was interesting. We used to uh when I was when I was when I was like in in high school, um, maybe even in junior high, but I guess in high school, my best friend and I used to uh take the uh bus and the trolley uh down to Capitol Hill and we'd go to uh committee hearings just to go and see what was going on down there. So what we'd like what people probably won't remember that unless you're of a certain age, but the Billy Sall Estes hearing, uh, which was a big corruption.

SPEAKER_03 5:52

Estes is in Kaffaver, Estes?

SPEAKER_02 5:54

Estes Kafaver? No, no, no, no. Billy Saul Estes, it was a he was a Texas something. I don't even remember the details, but it was a big major uh uh corruption scandal at the time. We went to hearings on that. Uh my aunt actually was a uh uh very active in uh Democratic Party politics in Maryland, and she got us tickets to the gallery when uh the 1964 Civil Rights Act was passed. So I was actually present for that. Um and uh, you know, I grew up in a uh New York Jewish Democratic home. Um, and um, you know, that's that's how we were brought up. We were pro-labor, um, you know, liberal, pro-labor, and uh went from there. Um so I was I was an art history major actually in college uh and went to uh uh UVA for graduate school. That was my first Virginia connection, really. Went to UVA for graduate school. And there I was sort of exposed to uh you know Virginia politics, Virginia racial politics. Um and in the course of that, I actually went to a trial um that Marvin Miller, uh a good friend of ours in Alexandria, criminal defense attorney, of course. Yeah, uh, and uh went to watch the trial. That was the sort of the first courtroom experience I had. And, you know, I was thinking just I was exposed to uh the politics of Charlottesville in the day, and it was uh and and just occurred to me that I need to do something more than what I was doing, and uh uh and I watched Marvin and I said, uh I might not do it as well as he does it, but I think I can do it. And so I decided at that point to go to law school. That was it at the end of my first year. Uh I was in a PhD program, but uh I just decided to leave, um, got my master's, left, went to Boston College for law school, um, same class with John Kerry. Uh and um and in law school, actually spent more time on the civil side uh doing um uh doing legal aid work. We uh Massachusetts had a very liberal uh uh student practice rules so that you could actually practice in court your second year of law school uh under the in civil cases under the general supervision of a lawyer. Lawyer didn't even have to be in court with you. Um uh criminal cases, uh the lawyer, the uh the lawyer did have to be there. So, but we had very active clinics. It's one of the reasons that I went to Boston College. Uh had a great experience there. Uh and by that time, after four years of Brandeis and three years at Boston College, I had had enough of the snow and uh decided it would be a good idea to come back to Virginia.

SPEAKER_03 9:05

Okay, so um what what kind of uh case were we doing with the clinic?

SPEAKER_02 9:12

So the clinics we had we were we actually ran our own uh we had a legal aid office uh that we ran in the in the town that uh uh Brandeis' uh uh actually it's the town Brandeis is located in Waltham, but Boston College had a legal aid clinic that operated there. So you did uh did landlord tenant stuff, you did welfare cases, you did divorce cases, just the the smattering of poverty law things that you do uh in legal aid. So that was most of what I did. I did do the criminal defense clinic that we had and had, you know, uh sort of misdemeanor, uh larceny cases and the like.

SPEAKER_03 9:51

And your your uh your boots never touched the soil of Vietnam?

SPEAKER_02 9:56

Um no. I I had sort of a a uh uh Alice's restaurant experience. Um so we we were all um so I was in the first uh draft pool, um, and I had 10 uh three was my number. Um and what happened was that they in in in you know they did it locally. So in Bethesda, everybody was going to college. So everybody had student deferments. So they ran through all six 365 numbers in one poll.

SPEAKER_01 10:36

Um right.

SPEAKER_02 10:38

So I was pulled, I was called for my physical, I went down to the physical, they had uh Harvard uh uh medical students uh or interns, whatever, doing the physicals. And if you gave them any excuse, uh they were more than happy to flunk you. So uh so uh I uh so you know I uh I actually had to come back to see a specialist. Um I didn't have a uh I I hadn't bothered even to get a uh uh a psychiatric note that a lot of my colleagues did. But I'll tell you in retrospect, I mean it's actually a serious point because we went down in a a bus from the town of Waltham uh to the Boston Navy Yard for this. And it was, I would say, I think there were like 12 or 13 Brandeis students on there. The rest were town kids. Waltham was a working class uh town in those days. It's uh it's more upscale now, but it strictly was a working class town. Uh so you had all these working class kids, um, white kids. You had the Brandeis students. We all came back uh with uh uh you know having failed our physicals. And they all, I'm sure, went off and were cannon fodder in Vietnam. So, you know, it's a it's a bitter lesson. I mean, I I walked away from it. I'm glad I didn't go. I wouldn't have gone uh regardless. Uh, but I didn't have to make any other choices because uh I uh I did uh fail my physical.

SPEAKER_03 12:15

It sounds like you graduated from Boston College Law School soon before I started uh Tufts University in 1981. Sounds like we missed each other.

SPEAKER_02 12:24

76.

SPEAKER_03 12:26

Um okay, so what was your what was your first job out of law school?

SPEAKER_02 12:31

First job, so I came, I came to uh Virginia, took the bar, um, and my first job was uh was it legal aid in uh in Richmond.

SPEAKER_03 12:43

Got it.

SPEAKER_02 12:44

And then what made you search to I did that, I did that for two years, and then I went off with uh with the lawyer who was the in-house Virginia ACLU attorney, a guy named Steve Bricker. Uh and Steve and I went into practice together. Uh we were practicing together for a couple of years. Um most of our work was civil. We did some criminal work, most of it was civil, most of it was civil rights work. Um, right.

SPEAKER_03 13:15

Okay, so I'll ask you this. Did you have any kind of business plan or figure we'll we'll we'll open up our own law firm, we'll figure it out.

SPEAKER_02 13:22

Yeah, with uh the latter. I think Steve had more of a plan than I had. I had no fucking idea what I was gonna do to actually make money. It was yeah, poorly planned. But as long as it worked out, we were together for a couple of years, then for various reasons we split up. Uh, and um, you know, I went off and and I did in the years that followed, I did so I I started doing um uh capital habeas cases. And I would say that I did of course at the beginning that you didn't get paid for that. Um so that was not, you know, that that was just you know, for laughs. Uh I did a bunch of that. Uh a lot of that became very close with the people around the countr country who did uh that kind of work, Steve Bright, um uh uh just all of the geniuses of of capital defense and capital post-conviction work. It was it was very uh inspirational. Uh but the other part of my practice was I did uh I did uh voting redistricting cases. So we go for the ACLU. So we'd go into a into a county uh or a town uh where they had a large African-American population but never elected uh African-American candidates to the Board of Supervisors or the town council. And we would go in and we would litigate the fact that the districts were drawn in a discriminatory fashion, and we limit uh litigate that and and hopefully get uh uh uh plans redistricted. And actually, we never lost one of those.

SPEAKER_03 15:12

Wow.

SPEAKER_02 15:14

Yeah, and that and that was very that was great work because you got you got to do a deep dive into the racial politics of local jurisdictions.

SPEAKER_03 15:24

Uh racial politics. So you grew up in Bethesda, which is was perhaps a lot different from uh Baltimore, where uh Thurgood Marshall said that he uh he he couldn't even get into a bathroom in downtown one day as a boy, and the urine was going down his leg when he finally got home on the bus. So so what were you uh learning about and experiencing about racism in in Maryland, let alone Namuring, Virginia, as you were growing up?

SPEAKER_02 15:50

Well, in so in in in Bethesda in those days, so my high school was had was uh we had um uh 700 students in my class. So 2100 students in the school, there was one African-American student.

SPEAKER_03 16:11

Okay, well, that's racism. Okay.

SPEAKER_02 16:13

Well, it's uh it was neighborhood. I mean, there was the race it was it was they weren't sending them to other places. It's just the neighborhoods were totally segregated. Right. Um and I remember when the fur when his family, his his father was actually a we I lived very close to NIH, so we had lots of of NIH, any doctors, students, you know, in our school, um, and uh and high and upper level government workers. That's that was our demographic. Uh but when his family moved into the neighborhood, uh they people threw rocks through the windows. So uh crazy. Yeah, it was it was crazy. It was uh yes. So I you know I learned, I mean, I saw it. I learned.

SPEAKER_03 17:05

Got it. Okay, so uh at some point you you uh were uh one of the lawyers with Zacharaz Moussaoui. So so how did that whole progression go? I think you were a public defender at that point, yeah.

SPEAKER_02 17:19

So what happened was in 1990 uh uh late 1996, I was appointed to do a federal capital trial in Richmond, a a multi-defendant uh uh crack gang uh murder case, um and um in federal court. And I I that was my first one. Um and we had uh f uh one, two, three, four defendants facing the death penalty. Everybody got life sentences, which is a victory in that business. Um and um so that was my start, and then I was appointed to other uh federal capital cases in in Richmond in federal court. Um in uh 2000, well, just before um 9-11, or just after 9-11, I'm sorry, in October of 9-11, the uh federal defender office, the Eastern District of Virginia opened for the first time.

SPEAKER_01 18:25

Right.

SPEAKER_02 18:25

Uh and I joined that as senior litigator in order to uh to to have responsibility for the capital cases in the district because uh the eastern district had more capital cases than any district in the country. So I signed on to do that. Uh I was supposed to do things other than that, but basically we had so many capital cases. That's all I did did.

SPEAKER_03 18:50

Um and 1996 you did that federal case. So can you fill in the gap about what you were doing before that, uh other than what you've already uh said?

SPEAKER_02 18:59

Well, um, I was just doing uh, you know, like I said, post uh I mean basically what I described is is what I was doing. You know, I did other things. I mean, I did some personal injury, I did some regular criminal defense. I mean, not not uh mostly in federal court. My practice largely has been in federal court my entire career, actually, both civil and criminal.

SPEAKER_03 19:22

So when you uh were representing Zacharas uh Musaui, um that you were a full-time public defender lawyer then?

SPEAKER_02 19:30

Yeah, yeah. Uh so the office was appointed to represent him. Um that was in uh December of following uh 9-11. Uh we were appointed um and uh and put had a big team put together. We had a couple of uh uh private lawyers who were appointed to assist us uh as well. Um and that then was litigated from 2001 until we finally went to trial in 2006.

SPEAKER_03 20:05

Uh who were you? Uh was Ed McMahon on the same level with you uh representing him?

SPEAKER_02 20:10

Ed, right. So Ed was a point was so Ed and uh Alan Yamamoto uh from Northern Virginia were both Alan also? Uh yeah, we're both appointed uh as uh CJA counsel. Uh and our team from our office, we had one, two, three, I think four lawyers from our office, uh number of paralegals, investigators. We had a French team working because Missaoui came from France. So we had a French team assisting us.

SPEAKER_03 20:40

Uh my second language.

SPEAKER_02 20:42

And and we had good, you would have been a help. We had a uh we had uh a team in London helping us because he was in London for a while uh at the Finsbury Mosque. That's where he was radicalized. Um and uh right, so you know it was a it was a huge effort. I got a lot of uh travel to France, I have to say, in the course of uh representing him.

SPEAKER_03 21:08

So you you were his lead lawyer though?

SPEAKER_02 21:11

Well, the lead lawyer on the case was uh the the federal defender, Frank Dunham, uh who was a was a he was a a great lawyer. He had no capital experience. And there was nobody else on the team, quite frankly, despite all those lawyers. I was the only one who had capital experience. So I had to, under law, I had to be on the team. You had to have somebody who was qualified as a what's called learned counsel in capital cases. So uh, but but the way it more or less broke down is that I was in charge of the the penalty phase aspect of the case. Uh Frank was in charge of the rest and was in charge of the uh overall. Um ultimately what happened was that Ms. Howie pled guilty.

unknown 21:59

Right.

SPEAKER_02 22:00

uh against our uh without our you know he wasn't talking to us um and he pled guilty and we uh and so then what was tried was the penalty phase but the but but the reality is because of the way the the federal death penalty is structured it was the penalty phase uh was actually ended up being divided into two parts um and um that was because of a of a motion i invented and uh uh of dividing the penalty phase uh that for the different parts that was granted so there was an eligibility phase and a uh and a punishment phase if you will right so you had to determine whether he was eligible for the death penalty which was essentially a guilt trial um you know you had to sort prove certain elements uh and then if he's found to be eligible then you went to uh the second phase which was decide well it's select called the selection phase whether or not he would get the death penalty so it was ed was really in charge of the um of the first phase of the trial uh I was in charge of the second okay so did mussa at any at any point uh find out you were Jewish and uh oh from the from the very beginning how did that uh how did that go well from the very beginning from the very beginning well you know it um uh uh he uh you know he was a weird duck and uh uh he had names for everybody you know he called me the Jewish zealot uh he he had names I can't remember what Ed's was Irish something uh he had names for everybody um you know it made no difference he wasn't talking to us anyhow so it was relevant only because he'd put it into pleadings that he would file you know it's it was pretty funny um he actually had a had a uh pretty good sense of humor I have to say um he uh um he he was you know not cooperative would be the fair way to put it right um so you know the I I think maybe the most difficult part was that because there were two phases you know we always you always talk about having a a uh uh I'm sure you've dealt with this John where you have a client who insists on testifying right yeah uh and and you you don't want him to know to you know it won't help uh but Musawi insisted on testifying but he insisted on testifying in both phases of the trial interesting yeah so we had to do it twice and we couldn't prepare him because he wasn't talking to us so so I had to put him up um I did it actually both times uh and then just sort of you know add limit as you went along and and the ironic thing was that I did my best to give him a platform to say what I thought he would want to say you know in terms of of the uh the the politics of it all and why they did it and you know where all this came from and and about America and you know the the the devil and I I I sort of try to open up all those doors for him and he never took them I mean it was like it was like he couldn't figure out what I was doing. He's not a dumb guy but he it was like he couldn't follow the lead.

SPEAKER_03 25:43

Maybe if he had met with you he would have known the lead.

SPEAKER_02 25:46

Well I think that I think probably because he you know uh was so suspicious of me to begin with that he just couldn't take it seriously I I don't know what it was but it was I tried and tried and tried and uh to give him his platform and I have to say I failed miserably so so what was his uh sense of humor I I only read about him calling you by your last name not about the the the other uh name yeah oh he would yeah he would do that stuff I mean I don't know he just he's just always uh would say things and file he just had a a reasonably funny sense of humor well when when uh when the case was over so he he wasn't they didn't have him sitting next to us they had him sitting like behind and to the left of the defense table I mean we could communicate with him there but we were outside of his reach um not that we were particularly I was particularly concerned about it but the the Marshalls certainly were so he was he was a little bit removed uh so when the jury came back with the with the life sentence um he um the the lead one I shouldn't say the lead prosecutor for the for the death penalty phase of the trial was a guy named Dave Novak who now is a district court judge but then was an assistant U.S.

SPEAKER_03 27:14

attorney uh Dave and I had had numerous um uh capital cases against each other over the years but uh when the jury came back with the life verdict as the jury was leaving the courtroom um masoui got says Novak you lose so you know I mean it was just does he didn't get the death penalty yeah just a little a little dig I mean it was pretty funny we actually made we actually made coffee cups to demorialize it that said Novak you lose on it okay I hope you're stuck okay you're back yeah I'm back um I was there I think after I uh I think I was over the Alexandria Courthouse during jury selection so I went over the courthouse and that was the only experience I ever had where they they were doing the security before I even got into the courthouse I saw the sharpshooters on the roofs of the uh nearby buildings so I don't know maybe that was some sort of uh eminent domain for the federal government to be able to take over uh private uh buildings and uh I watched during part of the jury selection at that point Mr.

SPEAKER_02 28:29

Musaui was uh just quiet and sitting there well he did he sat he sat he he didn't cause any disruption the only thing that he did was the sit so we had this I think the second day of jury selection he declined to come to the courtroom that was it other than that he was there he sat quietly um you you couldn't yeah there was no uh nobody could complain about his behavior during the trial um now I think you told me uh I was under the misunderstanding that he wanted to be executed and and that you are your team was trying to save him but I think you said that's not exactly what the uh case was right well I I I think uh I I think he didn't care about it one way or the other um he um he was I think interested in sort of the process and and what got said and but he how it came out what the ending was um was not his concern uh so no i i I think it's absolutely wrong to say that that he wanted the death penalty and I think it's equally wrong that he didn't want the death penalty i i think neither one of those is true i don't think that his agenda was one way or the other and is it true that uh in sentencing him judge brinkham has said something along the lines of he would never have a platform again because where he was going he was he was essentially going to be silenced right yeah uh yes she did because he was going to to uh supermax um you know and the only platform he has now is if you if you follow it on the uh on the court website you see where he files uh letters pleadings occasionally um although uh they've been much less frequent lately okay so you know this is an example where for us uh anti-death penalty folks I guess you're fully opposed to the death penalty as I am or challenged uh don't you make any exceptions for someone like Musawi and what's what's your response to that well I don't you know no I mean I don't even think Musawi is a close call I mean he he he didn't do anything in relation to 9-11 right he he was in he was in jail on 9-11 he'd been arrested on a on a visa overstay uh he wasn't part of the plot in fact uh Khalid Sheikh Muhammad has testified that he never would have put Musawi on uh on it because he was so incompetent um uh on a on a major mission uh so masawi was the worst you know and in fact what we know from one of the jurors who spoke has spoken uh has done interviews um uh is that what what his rationale for voting for he was the one holdout against the death penalty and what he said was listen we don't execute people for what they want to do we execute people for what they actually do and he just saw Musawi as a as a wannabe terrorist and uh that was it and he's right that's what he was okay so how would you answer that question when we actually talk about if if any of the terrorists in 9-11 who flew the planes somehow uh survive what would be your explanation well you wouldn't go definitely for that well you listen there are there are you can always find a a terrible crime and you can always find one that's worse than that everybody thinks you you have an awful capital case and everybody thinks oh this is the worst one ever you know then until it until the next one comes along that's worse than that um so uh so I I just think that it's wrong I I don't I think you will make you can't have it and say we're always gonna we're always gonna be right we know you're not gonna be right I mean I had a client on death row who's exonerated I had uh clients who um uh were went on to death row because government psychiatrists testified that they were certainly gonna kill again if they weren't executed and they then spent their entire lives in prison and didn't hurt anybody. So uh it's it's all just a crapshoot. And let's face it the difference between who gets the death penalty and who doesn't the single most important factor in my opinion is the quality of the lawyer and the resources that are available. It's not race it's not the race of the victim it's not gender all of those things are significant.

SPEAKER_03 33:28

But if you've got in Virginia I'll say it Craig Cooley is your lawyer you're not going to get the death penalty uh if you have uh you know a whole bunch of the other people who have defended capital cases yeah you probably will well I certainly want to talk about more than Musaui and this is the time to do it. So you've represented Earl Washington and uh and other folks so uh have have any of your clients gotten the death penalty and uh to to what extent have you been doing capital trials versus focusing uh post-conviction on death penalty work?

SPEAKER_02 34:06

Well I've done in federal court I've done you know probably um eight capital trials um and um I I'll I have one client who got the death penalty uh in federal court and that was in the Western district of Louisiana um a tough jury pool I have to say um and uh and an ugly ugly case um and uh a case that I got into very late um and it was uh and so that's the only one that I've gotten the death sentence in what was the name of that defendant uh his name was uh Tom Sanders um and it involved the murder of a uh a 12 year old girl I think and uh it was ugly facts is he still on death row was he executed well he was no he was uh he was uh pardoned uh by Biden and I'm sure that the state of Louisiana is now going to try him right so you had seven other trials and uh and didn't get the death penalty on the or maybe maybe more than that and and had uh had probably the other most important one I had was the Shenandoah National Park case um uh where I represented Daryl Rice uh who's charged in a double homicide of a of a uh lesbian couple up on the parkway off that story yeah it was that was a big one and and we uh and ultimately we caused the uh the the government to actually dismiss the case um and uh uh it was it was uh a case that was uh was just uh manufactured um it we when they decided that that Darrell was their suspect they they'd been investigating the case for a year Darryl dropped into their laps uh bec uh into a uh as a result of uh an episode on the parkway he was arrested they decided he was now their suspect for this this double homicide a year earlier and then they forced all the evidence to try to match up with Daryl uh they threw out they threw out their old timeline in order to match up to when he was in the park I mean it was it was a horror show uh and that's the case you know the one thing that I say about myself the one thing that I I did well was I put good teams together and I let people do their work. I let investigators investigate the cases I got them the resources to do it uh and let them go out there and and the that case is one where our investigator just took apart uh the government's case completely uh and it just collapsed.

SPEAKER_03 37:01

How were you able to get all these funds for the Musawi case and also uh for your other cases including the uh the the Shenandoah case right well so two different things one Musaui is it's the was the federal defender office and so they have their own budget and they can put the they can take get take the money and they can use it as they see fit.

SPEAKER_02 37:23

No nobody else is involved in it. In terms of a case like Rice where I was uh um actually the Federal Defender Office was involved in that but we weren't funding it you went to you would go to uh the judge uh and and you uh you do a budget and the budget gets gets approved by uh the uh by the uh court of appeals actually for a big case they they establish the budget you have if you run out of money you go back to them and you ask for more money and if you make it if you make a case for why you need the money you get it a lot different than at the state level in plenty of states no very different if the the federal government in capital cases has funded them very well up until now now what's going to happen going forward who the hell knows have you been involved with uh uh state level indigent defense in Virginia or elsewhere well uh not indigent defense um i have uh done yeah i haven't been involved in indigent defense um my uh my wife is involved in indigent defense so i sort of see um how you know see it through her eyes who is your wife julie mcconnell where does she work well she is the uh is a clinical law professor at ur and she is the um at the law school and she is the the go-to person for uh juvenile law uh in virginia defense of juveniles and and the defense of of uh of uh uh adults who were convicted as juveniles for the earl washing case were you uh were were you his um well i guess you weren't his lawyer when he was convicted because i think you uh you said you've only gotten had had one death penalty conviction so you got involved with his case after the appeal even post conviction yeah i was actually um um i was second chair on that uh uh uh great lawyer in northern virginia bob hall was lead counsel um and i was second chair to bob um in uh federal habeas now um i remember being invited by one of the uh leaders of the Arlington County Bar.

SPEAKER_03 39:56

He was all excited this is a few years ago he said well the Arlington Bar Foundation is giving its annual award to Helen Fahy he said she she's a pioneer in DNA well I looked it up and I verified she was on the wrong side of being a pioneer on DNA and I blasted that on my blog and social media saying that would be garbage to go to that uh did you I guess you had no reason to have any dealings with her because she she or maybe not because I think she was uh wasn't she working at the federal level at some she was US she was U.S. attorney right she's a nightmare okay in fact I'll tell you what she did to me which was really quite extraordinary so I had a case uh of a guy named Joe Gertano uh and Joe had been convicted of capital murder sentenced to death um uh I won't go through the whole history of that it's it's it's would take too long uh it's worth his own podcast and more but in any event um what when Joe was coming up for execution we were doing a a public campaign to get him uh clemency uh which was ultimately accept uh successful but as part of that I went up to north to Arlington actually uh to a bar associate uh a local bar meeting uh where they invited me to talk about the case and I did and Helen got there was a guy up in northern Virginia whose name I can't remember now who was the go-to person for ethics um and she planted him in the audience to accuse me of being unethical for trying to influence the uh the the legal process uh involving Giuratano that is the clemency process well it's the reason it's crazy is because clemency is supposed to be a political process it's not the legal process it is specifically a political process so it was total bullshit and Helen was responsible for that wild well and and then of course her son tried unsuccessfully running to be uh Commonwealth's attorney in Fairfax uh a few years ago yeah I wanted to talk to you uh I I I will tell you Jerry that when I started law school at George Washington Law School in 1986 I was I was too cynical I saw the bottle as too empty uh versus too full when there were a bunch of giants around me Phil Hershkoff who uh who who argued uh loving versus Virginia was just a few miles away and Vic Lasberg is a great uh civil rights civil liberties lawyer was over in Alexandria uh how how much of it all were you do dealing at all with uh Phil and Vic Lasberg and John's whirling yeah so Vic I dealt with uh a fair amount a good good bit uh Phil I'm sorry to say I did not uh um uh uh have much interaction with Phil um and uh yeah I mean they were giants and Vic still is and have you done any work with Marvin Miller uh yeah and Marvin and I brainstorm things all the time when going back and forth he's he's terrific. He's got a great mind. Now speaking of great minds and yours is one of them the name of this show is Beat the Prosecution do you have any approaches to winning beyond the uh the starting basis of being fully prepared for and and fully devoted to your client you know it's like I said it's about um you know in in my case because I've been in federal court mostly I'm able to get the resources I need to put have an investigator

SPEAKER_02 44:00

whatever. But you need to put you need to have you need to get the resources to do it. You need to outwork the prosecution, uh, and you need to be creative. Um and uh you know uh and then you need to have luck.

SPEAKER_03 44:17

And what did you do to to learn to uh be effective as a trial or did you learn as you went I I doubt if there were there were as many seminars as as you were starting as there were available to to me when I started that's that's the truth.

SPEAKER_02 44:32

There were not very many and I've done very few of them. Yeah I I just sort of learned as I went I watched other people and I uh learned some lessons the hard way some of them I learned and some of them I forgot and did it again. You know I remember the I remember the first criminal trial I had which is a larceny case uh and I was trying it in uh in district court in uh in uh one of the Boston suburbs when I was in law school and the cop was on the stand I think actually what it was was a credit card fraud case uh and I had the cop going it was a gray cross examination and then I asked him one too many questions uh and and he and he nailed me on it and when the and the judge would when you were finished the judge would do a debrief you know and he for the law students and tell you what you did right and what you did wrong and he said you know you asked one too many questions and I said yeah so you know you have to not do that so then I was uh I think back I had I was in uh to try and Massaui and Rudy Giuliani was testifying for the government in the penalty phase um and uh I my whole examination was about how uh how um how strong I mean I thought he I thought he was gonna have to say to me yeah New Yorkers are great New Yorkers are strong you know we'll work they'll recover et cetera and so I got all of the stuff I was doing and then and then I asked one the last question was something about uh and so and so uh New Yorkers will recover from this and he said well all except the ones who are dead yeah well was pretty Giuliani testifying what was the well he was well because I mean he was testifying as a victim as a victim uh as a victim you know and so you get to put on victim evidence and so he testified about all of his uh all of his close colleagues who died and the numbers you know the number of people in the police department and in the fire department and he was a perfectly appropriate witness and you know and yeah so you know speaking of of the you know over the World Trade Center uh I worked at um a combination of one one Wall Street and 101 Barclay Street from 1985 to 86 for the then named Irving Trust Company and I go by the World Trade Center all the time and then you know uh a few years afterwards I saw ground zero it was it was really something yeah no doubt uh now have you taught uh trial advocacy and appellate and post-conviction advocacy you know I've done I've done uh uh you know training sessions but I've never taught it taught it like I've like at the law school like some people do I haven't done that when did you stop uh practicing law are you still doing any uh cases no uh yeah I haven't quite stopped I am uh uh I have uh a few uh fourth circuit appeals left um and um uh and a couple of cases in district court um I would anticipate all of that to be wrapped up within the next year and a half maybe and uh I will be done and I'm gonna keep my license so that I can dabble and if I have some anti-Trump thing to do to do I'll do it.

SPEAKER_03 48:14

Oh yes uh you did mention about your anti-Trump work. This is a good time for you to talk about that. Well it's I don't I don't have anything yet but it's a group called uh Lawyers for good government which has put together lawyers who are want to be available to assist people who are being persecuted in Trump world um and um so I thought not to really represent people but to do research to write memos that kind of stuff okay so is that uh an active group and does the lawyer just look up lawyers for goodgovernment.org to to sign on I I I don't know if it's I assume I I don't remember how I did it.

SPEAKER_02 48:52

I got an email and I worked off of that but yeah.

SPEAKER_03 48:57

Okay. And uh before you sort of winding down your practice were you uh solo at the time or what were you doing?

SPEAKER_02 49:04

I've been yeah I've been solo for uh for years um since I so I left the federal defender office in 2015 I retired um and I then went to uh I then worked solo uh I was in an office shared space uh and then uh did that for several years and then I guess with uh right after COVID um maybe a year after that I just I stopped using the office and just started working out of the out of my home. I think the the last one or two questions I want to ask you is have you uh done any uh Supreme Court oral arguments and have you done a lot of uh Fourth Circuit arguments I've done a zillion Fourth Circuit arguments I mean I think I had I think at one point I had uh uh 10 in uh in a six month period um uh when I was doing the post-conviction cases um between that and some other arguments I had civil cases and whatever I was in the Fourth Circuit constantly um Supreme Court uh I had a fourth circuit actual argument actually uh a month ago no a couple months ago and I have one at the end of this month and then I'll have another one the month after that those will probably be my last um I've are I had two Supreme Court arguments um one went superbly one well uh so well the argument went superbly well argument went perfectly but I lost 313 uh and uh and then I then one that didn't go well at all what were the uh cases that you argued in the U.S. Supreme Court so the first one was a case called Giritano V. Murray um and the Joe Giritano brought a lawsuit in federal court he bought it initially pro se uh uh to force the state of Virginia to give um provide lawyers to death row inmates uh for postconviction um that case was he filed the pro se it was picked up by Paul Weiss Rifkin Wharton and Garrison in New York they litigated it I I was their co-counsel here uh it was litigated in Richmond we won in the district court um we lost in front of the panel in the fourth circuit we won on bank in the fourth circuit it then went up to the the government the uh commonwealth thing got a uh got granted in the supreme court and uh Joe Giardano wanted me to argue the uh uh the case in the supreme court so I ended up doing that so that was the first one um and I received so much fabulous preparation that when I did the argument I didn't get a question I hadn't answered uh five times in the course of practice uh it was it was just perfect I mean I mean I spent I I just spent my all in the weeks leading up to it my all I thought about was that questions and answers just circulated through my head it was excellent never experienced anything like that the second one um uh I have to say that I kind of uh it was a case called uh Buchanan versus Angelone Doug Buchanan was a death row inmate uh from uh uh uh can't remember somewhere near Lynchburg uh and um uh I really kind of loused up the issues in the cert petition and as a result of that got wowed in the in the argument and I lost I think I lost uh six three or four yeah I can't remember what it was yeah six three maybe well well this is a chance you to talk about some of your wins on the fourth circuit then uh well I don't know there have been a but listen most of them were definitely cases the fourth circuit was uh was uh was a uh a black hole uh yes you could you could in those days you could not win in the fourth circuit in a in a capital case we just got pummeled all the time uh so yeah then I want I won some but not many what motivated Doug Wilder not to give more pardons or or uh commutations of the death penalty even gave any of those was this just pure politics or what well Doug was a political animal um you know he he gave it to my client so what can I tell you but the bigger question is what made it motivated Tim Kane not to give more uh clemency so what's the what's the answer to that? I don't have an answer to that he's a good friend and I wish I could tell you um I think that was politics.

SPEAKER_03 54:07

I mean there were a number of cases in my opinion in which he could have done that and he had I think he had more executions under his watch than any other governor um if not the most it was uh uh damn close to it uh and there were certainly I know there were there were cases where he could have done it which I'm disappointed yeah as you wind down I mean I uh I spoke to Mark early only about a you know not a long time one or two years before uh Virginia abolished the death penalty and I said congratulations Mark for finally coming out uh against the death penalty I I said that doesn't solve anything about what was going on when you were attorney general though advocating for it and uh his response was I mean he he tried to sound sincere and maybe he was sincere saying he just was convinced at the time he said he was against it he was against it I didn't get to the point of asking him uh being able to ask him how he felt about it when he was attorney general he did say he'd be willing to be interviewed by me ultimately once he gets through some cases so he's gonna be in the hot seat there. Well it'll be interesting love to see it. Yeah. I told you we'd be together for an hour. We've gone a few minutes past after doing some of the technical difficulties this is your opportunity Jerry to say anything to the audience that you haven't already said remembering that anybody could be in the audience the on both the side of light and the side of darkness. Yeah well I think I've said what I have to say I appreciate it immensely okay everybody it did take several efforts for me to bring uh Jerry on the show I'm so delighted you came on you've heard from Gerald Zirkin last name Z-E-R-K-I-N first name Gerald G E R A L D nickname J-E-R-R-Y a giant in criminal defense and serving civil liberties and someone who inspires me to keep on doing the work that I do you've heard from John Katz and also Jerry Zirkin this is Beat the Prosecution I'm a criminal defense and DUI defense law in Northern Virginia thank you thank you for listening to this week's episode from Beat the Prosecution this is a regular podcast giving people a leg up against police investigations and prosecutions.

SPEAKER_00 56:28

Nothing discussed on our media sources such as our podcast or website is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email at info at beatheprosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.