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_01 0:32

Hello, everybody. This is John Katz. I'm a criminal defense and DUI defense lawyer in Fairfax, Northern Virginia. This is Beat the Prosecution. I am delighted to have this guest here. This is the first time I'm speaking with him. His name is Joe Margulis. He's a professor at Cornell. He'll tell you all about that. And I first learned about him 34 years ago from his dad, Irv Margulies, a great mentor of mine at the first law firm I was at. And I went when I went to Irv, who is the head of the litigation department there, and told him that I got a job as a public defender, he said, Oh, that's the uh my my son Joe. He does that kind of work. And the rest is history. And Joe and I, we've emailed with each other uh in the past, but this is actually the first time I'm actually speaking with him. Joe Margulis, please introduce yourself.

SPEAKER_02 1:27

Um thanks, John. That was very nice. Um I'm Joe Margulis. I'm uh uh on the faculty here at Cornell. I'm a lawyer, I'm a litigator, I've been a civil rights and a criminal defense lawyer since the memory of man runneth not. Um sometimes feel every bit as old as that. And uh I'm just happy to chat with you all today.

SPEAKER_01 1:49

Wait, you feel as old as that? If my math is correct, let's see. You graduated college only three years before I. So unless you started or finished college late, you're only three years older than I am.

SPEAKER_02 2:01

I just turned 65 a few days ago.

SPEAKER_01 2:03

You're only three years older than I am. Happy birthday. Before we go about you, uh, as much as I adored your father who uh who passed away about, I think it was about four years ago, this is about you, not him. But what I do want to say is this is kind of curious. Uh the year before, let's see. Uh so the year before I am at Irv, when I started working at uh the law firm as a summer associate, I was with a federal bank regulator. And uh one of the people there said, well, you know, that we got this Federal Bar Association, maybe you want to get involved. And uh in a couple of weeks, we're having the Tom Clark Award. And I go over there and uh and I meet Ramsey Clark. You know, no two fathers and sons probably could have been more different than that. Tom Clark was on the Supreme Court and voted on the wrong side, if I'm not mistaken, about uh the concentration camps for Japanese Americans during World War II, and Ramsey became a darling of the left. And you may already know this, Joe. Ramsey and I co-counseled, teamed up uh representing a bunch of plowshares activists in the depleted uranium action in 2000 and in their Baltimore jury trial. And so at some point, your dad, who is general counsel at some point of the uh commerce department, he got the Tom Clark Award. And uh as much as I adored him, I don't think that he was uh uh had had the kind of uh inclinations that you do uh about what you choose to do in practicing law, but you can let us know. But I thought that was an interesting connection there.

SPEAKER_02 3:39

Yeah, I I remember that. I remember he won the Tom Clark Award. God, that really takes me back. That was a long time ago. Um, but he spent a long time in uh in government service uh as a lawyer in government service before he um went into private practice. He didn't go into private practice until you know very, very late in his career. Uh and I think he really believed in uh his work in government service.

SPEAKER_01 4:05

Well, it was great. What I learned from him was that you can have a great and sharp mind. You may have been his son who talked about how sharp his mind was and totally not uh put on airs about it. I remember how he boiled down uh this argument one day about uh uh there was litigation over um uh fee recovery, attorney's fee recovery from the federal government for uh for a successful uh litigation against the government. And uh Irv went right to the heart of the matter and he wrote in this uh responsive brief throughout this litigation, the government has been trying to wrap itself in the mantle of the government. I thought that was just great. This man just gets right to the heart of the matter.

SPEAKER_02 4:47

Yeah, he had a way of, I mean, he was sharp. He was a really, really sharp guy, and uh he had a way of um distilling complicated and complex problems to their nub, uh, which could be maddening sometimes. Um, but it's uh it's a good skill to have as a lawyer.

SPEAKER_01 5:08

And finally, about him before we get to you, to his credit, I assume that as a Republican, I think he said at one point he was a Democrat, then he switched to Republican. I'm gonna guess that he was a moderate Republican. I don't know. And sometimes he mentioned mild things about politics, but he never asked me about mine. He probably figured that out one way or another, uh, anyway, even though I didn't talk much politics there. Uh now about you. All I see on your resume is what you've been doing academically, but that's only listed as starting years after you finished law school. So, what what led you to go to law school and what has been your path since then?

SPEAKER_02 5:44

Wow. You want me to go all the way back to law school, huh? Geez, how much time do we have?

SPEAKER_01 5:49

Well, weren't you high above Cayugo's waters then as well? Or was that as an undergrad?

SPEAKER_02 5:53

Yeah, I was an undergrad here at Cornell. Um and uh you know, I don't even know why I went to law school. I don't I don't know if I could reconstruct that that long ago. Um I I remember that I did not want to be a lawyer when I was in when I was in college. I did I that is not what I wanted to do. I thought that I would go to graduate school in history because I was a history student here. And I loved the study of history, I love reading history. Um and I remember thinking, well, I can't go to get a PhD in history, I'll never get a job because there's so hard to get. I mean, it's probably better than it is now, but it's just so hard. Um and uh after I graduated from college, I started a job um in based on work I had done in the public defender's office in Washington, D.C., where I trained um college students to uh work as investigators in the public defender's office in in Minneapolis, in Hennepin County. And I was an investigator and I also ran this program teaching young people how to uh do criminal investigation. And that I think drew me to the law in spite of myself. So I did that for three years and then started law school in Chicago in 1982. Is that right? Am I right about that? No, 1985. I graduated college in 82. I started c I started law school in '85.

SPEAKER_01 7:38

Got it. So when you graduated from law school, I guess that was in 1988. That's actually when I started at Irv's Law Firm as a summer associate.

SPEAKER_02 7:48

Wow. Yeah. Yeah, I graduated in 88, and then I clerked for a year on the northern for a judge on the northern district of Illinois, and then I went down to Texas uh in 89 doing death penalty work. I represented folks who were on death row in um state and federal post-conviction litigation, habeas work. Which organization did you do that with? What's that? Say again.

SPEAKER_01 8:12

Which organization did you do that uh death penalty work?

SPEAKER_02 8:16

There used to be these organizations, they don't exist anymore, um, called resource centers. Um I remember those. Yep. And they were in all the death states, not all of them, but almost all the death states, and they started in 1988, 89, um, in, you know, really the buckle of the death belt, Alabama, Mississippi, Louisiana, Georgia, uh, and Texas. And I was in the Texas Resource Center. And I was there for about five years until they cut the funding. Um and that was uh that was a hell of a time to do capital work. They were there were a lot of executions in Texas then and a lot of execution dates. So we were really um uh that's the work I was doing when you told you told my dad you were gonna go be a public defender. I was a I was a capital litigator down in Texas. That was trial by fire, brother. That was trial by fire. Okay, so you were let me just say that was not a healthy environment.

SPEAKER_01 9:15

Of course not. Well, Steve, Steve Bright was my interviewee about a year ago, and of course you know Steve. Sure. And uh I had Angela Lyon on too. Um so what made you decide to do the death penalty work versus other types of criminal defense?

SPEAKER_02 9:33

I don't know. I mean, I know what attracts me to it now, and I'm I I'm actually I was having this conversation. I was having this conversation not too long ago with David Brook. You know, David?

SPEAKER_01 9:47

I know David or know of him.

SPEAKER_02 9:49

Yeah, just a just a wonderful man, a wonderful man and a great lawyer. And for people who don't um who may be watching this who don't know David, um just an extraordinarily gifted uh capital defense lawyer, um, and you know, has represented some of the most high-profile capital cases in US history or in the history of the modern death penalty, um, and is now counsel for Ramzi bin al-Shib, um, who's one of the folks charged in the military commission proceedings. And he and I were chatting, um, and I was trying to explain that what draws me to work now is different than what drew me to work then. So I think then, and I'm embarrassed about this, I I say it with no sense of pride or or um uh uh bravado, but what I was into then was fighting with the government, right? Um just go into court and fight and you know get bloodied and go back the next time and you win some rounds, you lose some rounds, and it was all about fighting. It was all about fighting with the government. And I thought that was noble, and I don't I don't know, I don't know. I'm not proud of it at all. Um but that's I think what drew me to it, right? I mean, what better place to fight than Texas, and what better work to fight about than death penalty work? And so I think I was drawn to the fight, to the battle. And um yeah, boy, it's really embarrassing to describe it now. But I was yeah, you know, uh a lot of us were that way, and we just went down there and we were just it was really it was not good, it was not a good environment.

SPEAKER_01 11:49

Well, so so what's the part not to be proud of and to be embarrassed about that you were too idealistic or that you're helping to feed, you know, there's this argument that if no, if no death uh death qualified defense lawyers are there, how do you have the death penalty? Are you talking about that at all?

SPEAKER_02 12:04

No, no, no, no, no, because in Texas they'll appoint somebody else. I mean, Texas will have the death penalty. It's it's not that, it's that, and this is really important to me, John. When you go down there and your motivation is just to fight, then your client is incidental.

SPEAKER_01 12:23

There you go.

SPEAKER_02 12:24

Right. And that's that's a really important difference. I think when I when I left there and I was a trial lawyer, I moved up to Minneapolis and I was a trial lawyer there. I tried a lot of cases that I probably shouldn't have tried because I was just into the fight. And probably a lot of cases I should have just resolved this case. Yes, that's not something to be proud of. You it you you've got to be in this work because the client matters, not because in there and and and and go toe-to-toe with the prosecutor.

SPEAKER_01 12:57

But isn't there a way to harmonize uh wanting to do the fight, but still putting the client first? Because that's the way I approach it. I mean, I love I love the fight, and I know I'm on the side of the angels, but I also, you know, I say to clients sometimes, I say, look, there are two types of lawyers who aren't going to serve their clients' interests. One is gonna meet them and plead them so they can make more money per hour on average if they're charging a flat fee. The other kind is gonna be like me, who loves going to trial, will tell my client, well, just go to trial if I want to be selfish about it, because I love going to trial. I have to rein myself in to put the client first. And of course I do that, but I just love going to trial.

SPEAKER_02 13:35

Um, I think the two can be harmonized. All I'm saying is that I did not harmonize them well early in my career. I think that I am better at it now. And if I were to distill the difference, um I when I would spend because you know, when you're representing somebody who's on death row in post-conviction proceedings, if if you're lucky, the case lasts for years, and you have the opportunity to get to know your client very well. Right. Um and uh the uh the difference is uh back then I viewed my client as important to me only in as much as their story helped me uh make the case for their defense, not as a human being that I wanted to get to know. And so I didn't really listen to them. I learned what I needed to know um in order to advocate on their behalf. Now I spend a great deal more time with my clients, and the first meetings I have with my clients nowadays, I'll bring in paper, but I don't even take my paper out, I don't take my pen out. I don't want to look, I just want to I just want to know you as a human being. I just want to know, I want to see the world as you see it. Excellent. Where you came from, what your day is. I just just talk to me. And don't worry about where you're going. I'll ask a question now and again, and it'll lead you this way back. And then don't if you feel like you're wandering, don't worry. We'll we got plenty of time. I'm gonna come back tomorrow, and my question, the first question at the start of the day tomorrow will be as you were saying, great. I just want to hear, I just want to know this human being, and I want to tell their story, and that's a and and then and then you can use all the skills of a lawyer, right? Right, but you gotta have that first, and that's I I am to be honest, that's not where I was before, and I'm not proud of it.

SPEAKER_01 15:44

But you arrived there. Clearly.

SPEAKER_02 15:48

Here we go, here I am.

SPEAKER_01 15:50

So, all right, maybe we can fast forward. So you you then ended up going to uh another state, Minnesota or whatever, what was it with the public defender's office?

SPEAKER_02 16:00

Um, no, I was with a small um community defender organization that uh did a fra it was like a public defender. We were we were um, you know, we we we we we represented folks who were indigent. Um and I left that in for a brief period of time. I was there probably 1995 to 98, I guess, maybe. And then I went into private practice, and I was in private practice when 9-11 happened.

SPEAKER_01 16:30

Wow.

SPEAKER_02 16:31

And that became the you know, the thing that swallowed up my private practice, um because I was counsel, lead counsel in the first Guantanamo case, um and have been involved in representing folks at Guantanamo, you know, ever since, and still have a representative guy down there. And that became incompatible with having a private practice, and it's what eventually drove me to academia. I got a job as a clinician at a law school, not because I had any particular interest in being a clinician at a law school, but because they would pay me to keep doing my pro bono work, right? So that's that that's how that arc started.

SPEAKER_01 17:21

Interesting. And uh and then at some point you became a uh professor beyond uh being uh a clinician, then right.

SPEAKER_02 17:29

At at some point I needed to step back from the litigation. It was when I was going through this crisis of just not being able to be someone who just fought all the time. It was really it was a real, it was a it was a sort of a personal crisis of the of the way I practiced law, and I needed to step back from litigation. Um, and I left clinical work and just became part of the regular faculty. Um, and then when I came to Cornell in 2014, I was fortunate enough to have a position in the law school and in the what we call the government department, what other places call political science. Um, and a few years ago I basically made peace with the kind of lawyer I wanted to be. I guess it's four or five years now, might have been around the time of the of the um pandemic, and I wanted to get back into litigation more heavily, but doing it in a different way. So I gave up my position in the law school. Now I only teach in the government department, but I litigate a lot more.

SPEAKER_01 18:34

So what litigation are you currently doing? What kinds of litigation?

SPEAKER_02 18:39

Oh, you know, I have a mix of things. I represent a few guys in motions for a reduction in sentence in federal court. You know, there was those two cases um argued in the Supreme Court a few days ago on the what's called the compassionate release statute. Um I was involved in one of the cases against the Trump administration for things that they're trying to do in the, you know, a challenge to one of the executive orders. Um I uh still represent a guy uh at Guantanamo, Abu Zabeda was the first person held in a CIA black site, um, and the and the and the only person subjected to all of the so-called enhanced interrogation techniques. Um uh there's some uh collateral death penalty death penalty work, stuff about um the administration of the death penalty. I think I think I'm gonna get involved in. Um so it's a mix of things. It's all in this space of um criminal defense and allied prison condition type work.

SPEAKER_01 19:44

I would think that sound would sound like a dream job for a lot of civil libertarians who are going to be professors to be able to uh put the two together.

SPEAKER_02 19:53

I'm lucky. I I'm I I work with, and I'm also at the point in my career where I don't have to work with people I don't want to work with. I, you know, it's I get to peep pick who I work with, I work with really good lawyers. Uh, you know, everybody's been around the block a few times. Uh there's a real value to that. And I enjoy teaching smart undergrads. They seem to like my classes, they show up to my classes. It's fun. That's I'm I'm pretty lucky.

SPEAKER_01 20:21

I've seen some great reviews about you by students. Yeah. Students say nice things. Uh, I remember one day I said to one of my supervisors at the public defender's office, I said, This is so cool. A client of mine, when I got him out of jail, said, I'm gonna invite you to uh my uh extended family's picnic this summer. And the response was you gotta keep an arm's length from your client. Now I know I believe that your that your opinion would have been more someone of mine. No, if he had actually invited me, I guess he forgot, I would have gone. Hell yeah. Hell yeah.

SPEAKER_02 20:57

Oh, of course, why not?

SPEAKER_01 20:59

And that links back into what what you were talking about. I I see some of my colleagues who integrate so much with the clients, and a lot of those are the folks who come to my friend Chris Flor's office. Chris Flores a great criminal defense lawyer in uh Maryland, and every second Saturday morning of the month, he uh he hosts uh in a hybrid level. You'll enjoy this actually, to choose one person's trial and develop it to uh get to higher quantum levels towards winning. And we incorporate uh methods from the Trial Auras College, which I went to in 1995 at Jerry Spence's ranch before there was the schism there. And we use uh psychodrama or the next best thing, which is uh scene setting and storytelling. You were talking about stories, it's really great. There's that on the one hand, and then there are the lauras I see in the courthouse just being totally antiseptic with their clients, very arm's length, you know, and perfectly akin to the you know, there's the two. Different physicians, the kind who keep their arm's length because they don't want to have to deal, for instance, with all the emotions of dealing with it when their uh you know uh patients die, for instance, the oncologist with that. And then the physician like Wendy Lau, who's been a Zen priest for several years over at the Upaya Zen Center in Santa Fe, who was an emergency room doctor who said one of the reasons why she uh medicine didn't work for her is because there was this constant pressure not to be able to really get to know your client and get to uh give holistic treatment to your client.

SPEAKER_02 22:32

Yeah. Yeah, you know, it's a balance, and I don't I don't pretend if I were back in a regular criminal court again where you're there all the time, I don't I don't know how I would handle it. Um I remember I was down not too long ago, a couple months ago, I was down um at a um courthouse in uh New Orleans, and I was it was a it was a guy that I've been writing about, um, and he was he had served 30 years in Angola, you know, the Louisiana State prison. And his case, uh, he was granted a new trial and an ineffective assistance claim, and and they recharged him, and his case was gonna be resolved. Um uh and he was the public defenders down there got him a really, really good arrangement, and he was gonna get credit for time served, and it was all gonna be done. So I went down there to watch it, um, and it all came flooding back to me. It all came flooding back to me, sitting in the in the in the you know, in the well, the audience well of the courthouse, of the courtroom. Um, everybody on the other side of the of the bar was white, and everybody in the audience, you know, waiting for their case to be called was African-American, and the just the lawyers seemed, you know, so you know, it to them, this is all just second nature. They don't the things go on and they don't really care about the folks over there, and they're swapped. You can't tell who the prosecutor is and who the defensive is. They're all friends, and they're all pals. Everybody's paling around and joking and yucking it up and blah blah blah. And the people back here, you know, they're sweating bullets, what's gonna happen, they're nervous. It's the worst feeling in the world. It is the worst feeling in the world to be part of that. I never want to be part of that again. I never want to be part of that again. That feeling of um, I'm part of the in-crowd. Yes, it happens that in case nobody else notices, I'm the, you know, the old white guy. I pass through this this space with ease. Uh, and the black folks sit over there. Oh, I hated it. Oh, it's just a terrible feeling. It's a terrible world to be part of.

SPEAKER_01 24:59

Well, let's take a little detour then and get back to your dad then. To what extent did the two of you talk about your law practices? And to what extent do the two of you benefit from uh learning from each other about how you practice the law?

SPEAKER_02 25:15

You know, I um we didn't really talk about the work that I did. I, you know, you sort of alluded to this. He was a very conservative man. Um politically. Um he um started out when I was growing up, he he was more in the libertarian side of the Republican Party. Sort of he was he um had a lot of ambivalence and and and um uh uh dissatisfaction with with uh uh government as an government was just incredibly inefficient and so on. But over as he grew older, I think he he moved more to the the the cultural conservativism as as well. Um just I don't know why, just part of this sort of natural, I don't know, but for one reason or another. And so while I think he was um uh I I don't know if he was proud of the work that I did, you know, the Guantanamo work, which is so high profile. Um I know I know he came to the Supreme Court and watched an argument I did there once. Um but we just saw the world in a very different way. Um I think I benefited a lot from him, not because he would talk to me about his cases or I would come to him to talk about my cases, but growing up, you know, you're sitting at a dinner table with someone who's a really sharp lawyer, and it teaches you how to um think through a problem. He was a very rigorous analytic thinker. And so I benefited from that, even if you're not talking about the law, right? He also, as you probably know, was trained as an economist. You know, he went to law school. Yeah, he was an economist, and he thought in economic terms, um, which is a which is a useful way. It is a it is a useful tool to bring to the law um and to bring to public policy. It's not the only tool, you know, it's not it's it's it's not the only thing that works, but I benefited from that toolbox that he brings to normal conversation.

SPEAKER_01 27:44

I think he was uh proud of what you were doing, at least with his response to when I told him I had gotten a public defender job, because he's he seemed very happy about what I was doing, and he and he told me in in relation to that about the work you were doing a little bit.

SPEAKER_02 28:00

I guess he might have thought it was noble, but I think he probably thought it was machina, you know. I mean, why don't you go to a job at a firm and make money? And I'm sure he probably thought it was just you're doing what? And you're you're getting paid what? What yeah, I'm sure he thought that was just crazy, man. What are you doing? You're wasting, oh, you went to this fancy law school, oh, you're clerk for this federal judge, oh, you could be making so much money.

SPEAKER_01 28:23

Well, you're teaching at uh Cornell Law School, which at least is uh very rigorous for its um its admissions policies, and I imagine that uh you would still match up to that at least uh now. So, to what extent uh are are you more of a brainiac or just a practical person and in the way you teach and in the way you practice law and the way you think about uh defending your clients?

SPEAKER_02 28:53

There are some people who are, I mean, it's funny because I've litigated at a very high level, but I would not describe myself as a law guy, right? That the that they're they're they're deeply, deeply immersed in the law. Um I describe myself as a a fact guy. And what I really want to do, this sort of is like what I was saying before, uh I I think it is a great privilege. It is a gift. You are being a gif you are being given a gift to learn your client's story. Right? And sometimes if you know you're representing a very simple case, and you know, it's the his story is not really relevant to what it is you're trying to do. But if I'm trying to get a guy out of custody who's serving a life sentence um and he's been in there 30 years already, I can only achieve that by learning his story with a depth and a nuance and a richness that uh he has never even conceived of before, because people don't think in terms of that, right? It's a matter of doing an investigation and and weaving it into a narrative about who he is as a human being, um, and how he became where he became and what led him to the worst day in his life and what he has done since. That to learn all that is a great gift. I feel privileged when I learn that story.

SPEAKER_01 30:28

Yes.

SPEAKER_02 30:29

And I love it. I just love it. So that's what I try to bring to the work.

SPEAKER_01 30:34

Can you give an example of how that has worked out uh for you in getting some advantage or victory for a client?

SPEAKER_02 30:44

Um yes, I can, but I'm not gonna, because I don't want to talk about pending cases. And I would say that the Guantanamo litigation that are the collectively, the the lawyers who were involved in the Guantanamo litigation. I mean, I started that work in late 2001. We filed the litigation in Rasul versus Bush, which was the first case, in February of 2002, about uh three weeks after the first prisoners were brought there. We were part of a larger effort to delegitimize the prison by um opening it up and communicating the humanity of those who were there so that it ceases to be a black box, it ceases to be a prison beyond the law. And I am proud of what we achieved in opening it, and by opening it, revealing the humanity of those who were there. And once you understand that they are not them, um you lose the moral claim to hold them in places like Guantanama. Um, and that can only happen if you perceive your task not simply as a legal one, what is the legal basis for them to hold them, but as a narrative storytelling moral one. That is, why are you doing this to another human being, right? Why are you doing this to another human being? That's a very different challenge. And that's what we ultimately that is the reason why Guantanamo only has 15 people in it, right? It's not because we won a lot of cases in court, but because you delegitimize it culturally, and it becomes impossible to hold those people as a moral matter, not as a legal matter.

SPEAKER_01 33:06

I I don't think I knew that. You say there are only 15 inmates in Guantanamo now?

SPEAKER_02 33:11

Uh, you know, it's something like that. Close to it. I mean, I mean, there's almost no one there now. It's but there's just a there's a there's a few, yeah. I mean, there's a few guys charging the military commission proceedings, there's a couple others. It's a very, very small prison, but most county jails hold substantially more people than that. It doesn't mean it's not important, but it is important, and and we're holding some people in a way that's wrong, but it's a shadow of what it once was, right? They're they're at its biggest, you know, it was a it was a global obscenity and it had nearly 800 people in it, and it was, etc.

SPEAKER_01 33:44

I know it enables me to have no hesitation to defend people, even uh those who are not only charged with some of the most heinous crimes, where I am pretty convinced they did it. Uh what it what is your approach to uh if someone asks you that, what what is your answer that for you to justify defending the allegedly worst of the worst?

SPEAKER_02 34:07

Um you know, I don't have any um in my work I've never been drawn to innocence cases. Um innocence cases are a story about the system, right? How could the system somebody who's in custody and has been for a long time, it's a story about how the system could be so wrong as to convict somebody that didn't do anything. But guilt cases are cases about the human being, right? What brought this person to this place? How do we understand what they did and where are they now, right? Who were they, who have they become, and to place the worst day of their life in an in a narrative arc that enriches us in learning it and others in receiving it. I am fond of saying that the lesson of history and the lesson of psychology is that all of us can do monstrous things. Anybody who believes that they are not capable of monstrous things is deluding themselves. That is arrogance on stilts. And if all of us can do monstrous things, then none of us are monsters.

SPEAKER_01 35:28

Right.

SPEAKER_02 35:29

It's a matter of understanding that. And so that that is my that is my work is to understand and communicate that.

SPEAKER_01 35:36

I want to break that down, starting with does this go anything further with what you just talked about, that what uh Publius Terrence said, something along the lines of I am human, and anything a human can do is not alien to me. And what Tiknad Hans said, which was that he can identify with the pirate who goes onto the uh boat people ship and rapes a uh a teenage girl on there, with uh the pirate being uh someone who's suffering, and he can also identify with the victim of that rape.

SPEAKER_02 36:07

Yeah, absolutely.

SPEAKER_01 36:08

Does it go any deeper than that? Well, not deeper. Does it go any beyond that?

SPEAKER_02 36:12

I don't know if it goes beyond it, but my philosophy, I have long since, and this will tell you my, you know, the will show the way in which I was at odds with my dad. I have distilled my moral philosophy to eight words. Um there is no them, there is only us. That's it. And that links me at a level of shared humanity with people who have done abhorrent things and people who have endured abhorrent things. Um, and I know that I am them and they are me. I see us in them, and I see them in us.

SPEAKER_01 36:51

Well, that was the next one I wanted to get to. And also, can you address it's one thing if the person who has allegedly done heinous things or has done heinous things is our client because they appreciate that we're helping them, uh, versus maybe you know uh someone who's uh trying to beat up us, beat us, beat up on us verbally andor worse, for their view of our politics or our worldview.

SPEAKER_02 37:18

Um look, everybody has the right to autonomy and dignity, and um there are people who um who behave in a way that they behave in a way that is wrong. And I don't have any problem with holding them accountable. Um but they that accountability has to has to be from a place of understanding where they come from and not judging them as an as an other, as a monster. And it doesn't matter if they're coming after me because I'm a Jew or because you know because of my politics or or because you know they're just having a bad day and they just want to beat the shit out of me. It's a they're wrong, but we have to we have to evaluate that wrong um from a perspective of understanding. Doesn't mean that doesn't mean that they get away with anything, right? So for instance, I know that look, I am there there there are very few ways in which I am less like Steve Miller, Stephen Miller, um Donald Trump's chief of staff. I mean, he and I just disagree about everything. And if he says that, you know, I'm an idiot, I'm one of those crazy lefties who wants to let monsters out of it. Well, look, Stephen Miller comes to the world, it's pretty obvious to me, from a place of deep, deep fear and insecurity. Well, that insecurity comes from somewhere, right? There's something, there's something pitiable. And we should have pity on the a person who is this frightened, right? Okay, so this is this is what he needs to do to deal with the uncertainty in the world. Fine, that's fine.

SPEAKER_01 39:07

Well, where do you get these ideas from? Just from Gandhi? I see that's on your bookshelf and Publius Terrence or from other folks, or or perhaps if you I don't know where it comes from.

SPEAKER_02 39:17

I don't know. I don't know. I just I don't know where it comes from. It comes from spending a lot of time, a lot of time with people who everybody else calls a monster. And I was I don't know what the fuck they're talking about. It's not a monster as far as I can tell. What the hell? What the hell? It's my job to communicate that to you. Uh, you know, there are no monsters.

SPEAKER_01 39:43

The name of this show is Beat the Prosecution. You've talked about doing a lot of trials and other litigation. What secrets or near secrets or anything else do you have for winning in court or getting as much justice as possible for your client, otherwise?

SPEAKER_02 39:59

God, I don't know. Because I've I've lost a lot of cases. Um, if I were to communicate one thing to young lawyers, I would, and you may appreciate this. I'm working so closely with my dad, learn to write. Yes. Learn to write, learn and especially learn to write facts. Lawyers are not, as a rule, are not good writers. Took me a long time to shed the baleful effects of a legal education. Um, and to write like a human being again. I spent a lot of time on my writing. A lot of time on my writing, and it makes a difference. Learn to write. And how did you learn to write? There's only one way to learn to write, and that is to write. Find good writing and ask, this is what I tell students. First of all, you can only do it if you read, right? You can't do it if you don't read. Read good writing and then stop as you're reading it, and as you and as you say to yourself, wow, that was really good. Don't just gloss onto it and go to the next paragraph. Ask yourself, why was that so good? Was it the imagery? Was it the sound that the words make? Was it the construction of ideas? Was it just the short, simple declaratives? What is it that was so good? And then practice that. And first, what you're gonna do, like anybody who's learning a new instrument, you're gonna copy somebody else, right? And we're all gonna try to be John Lee Hooker. Well, but then you're gonna get beyond John Lee Hooker and you're gonna develop your own style. That's the art of writing. So the the art of writing is the discipline of rewriting.

SPEAKER_01 41:53

Right. And do you have any particularly top two, three, four, or five books uh that you would suggest reading for uh helping on that path?

SPEAKER_02 42:03

So the most important writing that I've ever read for me were the essays of George Orwell. I think George Orwell was the greatest writer in the English language of the essay. George Orwell's essays are, you know, I used to assign it, but it's a waste now, students. I don't know if it does any good. Politics in the English language. I just have students read it over and over and over again. It's just an amazing document. Shooting an elephant. I mean, read Orwell's essays and then ask yourself, how does he do this? Holy shit! How does he do this? And then try to do it, and develop your own stuff, right? Because you're not going to be George Orb.

SPEAKER_01 42:50

But uh well, okay, so you've been important. So you've done oral advocacy too, you've done direct exam, cross exam, closing of the whole thing. Yeah, do you have anything to share about that, or do you just feel there's really nothing unique about what you would do?

SPEAKER_02 43:07

Oh, there's nothing unique about anything that I do, and I'm not I'm not special in any way. I've just lived a long time and I've practiced in a lot of venues. Um uh no, I I I I'm not uh no, I don't have anything special about that. There are a lot of people who are big time uh uh trial lawyers and trainers of trial lawyers. That's not who I am. Mostly if I have any skill at all, it's that I listen really carefully and I write really well.

SPEAKER_01 43:45

And you have three books, and you've got a lot of articles out there.

SPEAKER_02 43:49

I have three books, and I have a fourth book coming out, which I'm really, really happy about. It'll come out in the next uh summer or fall on these issues. These it um It's a story of six people, including this guy that I was down in in Louisiana and New Orleans about six people who did god-awful things. Um, and it looks the worst cases square in the eye, um, and says, this guy is no more a monster than I am or you are. Uh, and I'm really proud of it. Tells the story of six very, very different people who did very bad things and who are much richer and more complex. Well, two of them were executed. There were death penalty cases. But the four who are still alive, it was uh a great privilege to unpack and tell their stories. Great privilege.

SPEAKER_01 44:43

This is a a nonfiction book? Yes. There's six real people. Who who is your publisher? Beacon. Beacon Press. And who's the publisher of your other three books?

SPEAKER_02 44:55

So the first one on Guantanamo was Simon and Schuster, Guantanamo and the Abuse of Presidential Power. Um, that was my first foray into writing books. And then I published two with Yale University Press. Those were slightly more academic. Um the third one I had a lot of fun with. It was very different from what I usually do. It was the story of um a little neighborhood in Providence, Rhode Island, um, and how to prevent uh gentrification, which is a sort of a step out of my comfort zone, but it was fun.

SPEAKER_01 45:34

How did you pull that off to get such major publishers, starting with your first book, even in this day and age when so many people are self-published at best? I don't know.

SPEAKER_02 45:45

I don't know. You know, I can't answer that.

SPEAKER_01 45:52

Well, all right. I was able to uh interview another writer last week who was less modest than that. Actually, he wrote one of my uh son's favorite children's books. His name is David Schnitzlein. No, Danny Schnitzlein, he wrote the book The The Monster Who Ate My Peas, which is just a great classic, but unfortunately not promoted enough for enough people to know about.

SPEAKER_02 46:13

That's fun. Good for him. No, I I uh look, I know some people who are really full of themselves. I just I don't know. Whatever, man. Whatever. I I do what I do. I uh uh look, I I I feel like I'm I'm immodest about one thing. I know I'm a good writer, I know that I do that well. That's after uh uh after that.

SPEAKER_01 46:40

Um that's all. Beyond what you said, uh, do you have any examples you're willing to share about you uh helping really touch one of your clients' lives or any of your students' lives? Because it it sounds like you you are a great catalyst for a lot of people, as modest as you sound.

SPEAKER_02 46:59

Um students say very, very nice things. Students often write me notes saying how much studying the criminal legal system with me mattered and how it affected their uh trajectory. Um and it directed them, it led them to choose a path in social justice or in um to work in the criminal legal space. I had a I had a conversation just today, in fact, earlier today, with a couple of my former students who wanted to catch up. Uh they graduated a few years ago, they're both now third-year law students. One's at Harvard, the other's at Fordham. One wants to go into the be a prosecutor in the Southern District of New York, one wants to be a civil rights lawyer, um, really, really bright young, uh, soon-to-be lawyers. And um, you know, the the students say very kind things about the influence of a faculty member who reminds them that you can you can learn your legal skills, master your legal skills, but if you do not pair those skills with a deep moral foundation about the the need to communicate and defend the humanity of your client, then you're then you know then you're just a tradesman, right? Not that there's anything wrong with being a tradesman, but all you are is a technician of the law. And that's not the art of being a lawyer. And I and I and I think students appreciate that.

SPEAKER_01 48:50

Yes, now with some of the work you've been doing, um a lot of times you're teaming up with other lawyers, right? Oh yeah. Uh what is your approach then when you're butting heads with uh those other people on the team or coming close to that? Uh I'm you know, I've had to do that, for instance, when we have multiple defendants in a federal case, and we all have to come to an agreement about what we're doing with the uh peremptory strikes. I mean, that can be maddening from that standpoint alone.

SPEAKER_02 49:22

Oh, yeah.

SPEAKER_01 49:23

What happens beyond that?

SPEAKER_02 49:26

Yeah, um, it's always very stressful um to be part of a big case, particularly if there's a big case with a lot of egos involved. Ugh, that's a pain in the ass. And that happens, particularly if you're in a really high-profile case. Um I would say that I'm not very good at it. I lose my patience with big egos. It's almost always a guy, uh, it's almost always a guy uh who thinks they're, you know, all that, and peanut butter and jelly too, man. Um and uh, you know, I just it's hard for me to resist the impulse to take them down a notch. And I know I shouldn't. Even as I'm doing it, I know I shouldn't, but what are you gonna say? Well, we're all works in progress, brother. We're all works in progress. But it's it's yeah, it's but I've been very lucky. I have had some co-counsel relationships that are great, just terrific lawyers. I've also worked opposite, you know, in the Guantanamo stuff, I worked opposite a lot of the folks in the Solicitor General's office. Uh and you know, the Bush administration, the Obama administration, the uh the Biden administration, they're very, very good lawyers. And there's nothing, you know, look, you're on your side, I'm on my side. We're gonna go, we're gonna beat each other up. That's fine, you know. But but it's very honorable work. There's I don't have any problem with them.

SPEAKER_01 50:57

Have you ever had any uh negative experiences with opposing lawyers? Oh, god, yeah.

SPEAKER_02 51:03

Geez, I remember I almost holy cow, almost came to blows. I was in some conference with a judge back in chambers. Oh my god, I almost came to blows with this prosecutor. Yeah, man. Sure, of course. Hasn't everybody? You do this work long enough, yeah, you're gonna get involved. Yeah, yeah, sure.

SPEAKER_01 51:24

One of the biggest things I learned uh with with a prosecutor who uh is not someone you would you would want to have a beer with, uh, was I made an objection uh during a bench trial. The judge calls us up to the bench, and the prosecutor starts arguing against my objection before I get a chance to argue it. And the judge said, objection denied from forever since. I mean, this happened over 20 years ago. When I have a motion, when I have an objection, I make sure to say to the judge, judge, that's my motion. That's my objection. I would like to argue first. Right. And on the flip side, though, if it's something as small as the prosecutor has a motion to postpone a DWI trial, one of the first things I'll do is I'll give the judge a good big good one, good morning, judge. I'll say, the prosecutor has a motion that I object to. And all of a sudden I have planted the seed in the judge's mind to listen a little more closely to the reasons the prosecutor gives for seeing a postponement because he knows that I'm going to be coming back with why I object.

SPEAKER_02 52:30

Right, right. Good for you. I remember, well, you know, I used to be, I used to be such a smart ass, and I'm just so embarrassed about it now. I remember once I was litigating some case in Minnesota, I was in Minneapolis, and the judge called us back in chambers. I don't remember the issue, don't remember anything about it. And I was walking back into her chambers, and she had a copy of the Constitution framed on her wall next to her desk. But it was small, it's like this. And I said, Oh, look, the Constitution, that's a very small copy, Judge. Why don't I get you a bigger copy so you can read it? That was good. And what was the judge's reaction? Oh, I don't know. I don't know. I don't probably I don't remember any. She probably did not think it was funny.

SPEAKER_01 53:17

Um, we are coming down to the last two minutes, and this has been a true pleasure uh to to meet with you, and um I want you to have uh be able to say to everybody anything they haven't already said that you want to say, and I and I want you to be able to promote your books and anything else, and any of your causes, and anything else that you think should be said that hasn't been said.

SPEAKER_02 53:41

Oh no, that's not my style. I'm grateful to people for listening, and I hope it's been helpful. And I would just say that um just remember the lesson that um we can all do monstrous things, and so therefore, none of us are monsters.

SPEAKER_01 54:00

That's all I I think that's a great place then for us to conclude. Uh Joe Margulies, and for those who want to look up his books on Amazon, for instance M-A-R-G-U-L-I-E-S. First name is Joseph. Do they put Joe or Joseph on the books? I forget.

SPEAKER_02 54:18

Joseph, it's Joseph on the books.

SPEAKER_01 54:20

And uh if you look up his biography of Cornell, you'll see a bunch of uh hyper-linked articles by him. He is brilliant, in my view. Thank you so much, Joe Marguis.

SPEAKER_02 54:31

This is John.

SPEAKER_01 54:34

Thank you so much. This is John Katz, it beat the prosecution. I'm a criminal defense and DUI defense law in Northern Virginia. Stay tuned till the next program.

SPEAKER_00 54:45

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. 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 beattheprosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.