Cornell 7 Case: Criminal Defense Attorney and Sex Crimes Prosecutor Weigh In: In The Well

As you know, I love true crime. And here on the MK Show, we like to bring you the latest law and crime stories whenever we can. If you enjoy these stories as much as I do, I feel like we're crime solvers, don't you? I feel like we might be doing good. And I also feel like it helps you when a new crime gets committed in helping to figure it out. A lot of the true crime community actually does participate by sending tips into law enforcement and in some cases, they have been integral in solving cases, even some of these true crime podcasts at times have been helpful, at times not helpful, but at times helpful. So in any event, look, you got to check out MK True Crime if you are into this kind of content. MK True Crime is a channel featuring three shows where you can listen to some of your favorite legal experts from the Megan Kelly show. Kelly's court regulars like Mark Garagos, Matt Murphy, Dave Ehrenberg, Phil Holloway, Ashley Merchant, Mark Eiglarge, and John Aspelborg. Those are two of the OGs back with me 20 plus years ago doing these segments believe it or not, discussing all the latest true crime news and stories. You can't get enough of three shows, one feed, new episodes every week. They cover the headlines, the legal strategy, and the people who live it. Enjoy this episode and follow MK True Crime. Go ahead and subscribe right now. Just wherever you get your podcasts, go to that little purple button on your phone, type in MK True Crime, hit subscribe, you're good to go and you can do the same over on YouTube. That's MK True Crime on all podcast platforms. Welcome to In The Well, and I couldn't be more pleased, no offense to Ashley or Lauren or Alexandra. I've been waiting for Matt Murphy to get off of it. And I mentioned this, Matt, I remember in middle school having to watch the endless summer. Why I don't know, but they used to play it in the auditorium in public school. And I feel like you've been on the endless summer. Welcome back. I missed you. I purposely did not call you, even though I said I would when we were texting, because I have so much pen up to me. You know, I leave you for like two weeks, Mark. And I leave you unsupervised and then you're like, you're releasing evidence. You know, I thought we had an agreement that when we were going to illegally release evidence, we'd only do it on our show, because God knows Harvey Levin depends on you for releasing evidence. I leave you unsupervised and all hell breaks loose. You're the one that's supposed to be supervising me, Mark, not the other way around. Right. It's funny how life has changed and if you believe Harvey, he's carrying me and blah, blah, blah. Matt, I have missed you. You took off at the exact time when your insight is the most valuable, because you might remember. I've used this, I use the kind of internal calculation. What would Matt Murphy do? And that's the, you know, in terms of a prosecutor. What would Matt Murphy do with, of course, what we're talking about is Cornell's seven. Well gosh, Mark, first of all, before we even get into that, let me, let me be that boring guy at the office around the water cooler. I got to show you some vacation photos. So over the audience, can you show the one of you with that coming right down? Yeah, I think we got it. Natasha, can we, can we scroll through some of these? I want to share with the audience, get my, get my surf and credibility in. So for the group, what Mark's talking about, I went to Indonesia. I've got an annual trip with a bunch of guys. We go to Indonesia every year and this is our 23rd trip, Mark. And I, I can't believe we've done it this many times, but we go, you know, we, that's 20 years, 23 years with the, with the same group of guys. I love them. I miss them when I'm not with them. And what we do is we charter a boat and we go out and we surf some of these, oh, there it is. Yeah. So that's, that is a place called the whole. That's off Sumatra. And we can scroll through these. So this is, we, we go out on the boat in the very first day, yeah, here's some others. These are, these are the highlights. This makes me look like a far better surfer than I actually am. I'm going to say you look like you got some game there. Yeah. And one of the guys on my favorite Natasha, is there a way to zoom in on his face on a couple of these? Because there's some, you know, determination on that way. Yeah. And this one, I think it's, it's pure glee. It is, it is on that, that day was as fun as it looks. But I got, I got to share this story with you, Mark. So we're out the very, very first day, we're a place called bin tanks and bin tank. Okay. Mike Zinacola, he's a, um, that, he is a professional artist and he used to surf professionally, Mark. So I, I surf with my buddy, Mike, and it's equal parts like I'm learning watching him. He used to surf against Kelly Slater. He's a good friend of Kelly Slater's and he's Kelly Slater's level. I am not Kelly Slater's level. So every time I surf with Mike, I, I am inspired. I'm in awe and I, I think I should probably quit surfing because we're only like a month of part-age-wise. He's got all the talent in the world. I've got no talent. Um, I've got middle-length skill, but it's just an awesome trip. So we go out, Mike and I are surfing this place called bin tanks, which is the, the beer of Indonesia on the very first day. And there's critters in the water in Indonesia or tropical places like, you see sea turtles that'll like pop their head up and every once in a while, so you like a little shark fin swim through and we saw something that looked weird. I thought it was a turtle and he keeps popping up. There's a, we did a little scuba diving, too. And my buddy Jeff, who's very experienced surfer, he's like, guys, I think that's a crocodile. And I'm like, it's a sea turtle, Jeff. And play this, uh, the next, uh, market's going to, uh, market's going to love this thing. So that, that's it, a place called, uh, we're surfing Lance's left. That's a place called Lance's right right around the corner and it turns out to 14-foot saltwater crocodile. It's about 30 feet away from us and I'm like, oh, it's a cute little sea turtle. Jeff's like, no, man, he was a crocodile and we didn't believe him. So anyway, I survived that. I'm back. Well, I was in, right, you know, you almost opened yourself up. I thought you were going to shark and then there was going to be a whole professional courtesy joke. A lawyer joke. A lawyer who serves and sees a shark, you know, that I don't know how crocodiles feel about lawyers, uh, Mark, but I got some of the stuff that's happened while I was gone. I've got some pretty strong feelings. Um, well, let's just start, by the way, with what we're referencing is this, um, well, you start. You start. I won't even, I won't even ask a leading question while you were away, Matt, anything strike you? How's that? I. Oh, oh, my goodness. Um, so we've got this, this case, the Cornell seven case. And what Mark's referring to for the audiences, I, before I went to homicide, I worked in the sexual assault unit and, um, sex cases, it's a, it's a real niche in criminal law. And a niche among niches, uh, would be what we would, would refer to back in the days date rape or acquaintance rape where you have like vague issues of consent and alcohol and people that, um, are facing the attention. To remember that case, Matt, because the case back, I think around 2000, 2001, where I think it was starting the juvenile court where California basically said that, uh, that consent really lowered the bar on consent and in terms of what it required, but you're so right. You were the, I used to call you the, for those who don't know, Matt and I had many of those cases, um, and I used to T, but my, one of my favorite jokes is Matt would have filed a criminal stocking charges on Romeo if he had been around when Julia was there. So, probably would have, but then the problem is Mark would have talked me out of it as Mark did plenty of times when I, he'd come in and it'd like, I, it's like, God damn it. I know that Mark is going to, it's going to say something on this one. I'm going to hold, I'm going to hold firm and then Mark would speak reason. And we, we were almost always able to work out a deal if you got people that are being reasonable. Okay. And that's another thing about, so these cases would actually be presented to me for many, many years where you sit down with the detective and you talk about the, the potential, uh, for a criminal conviction and the ethical standard for filing a lot of people don't know this for a prosecutor is number one, you must have subjective certainty that the person did it. Number two, you must have a reasonable belief that you can convince a jury beyond a reasonable doubt under the law of whatever state you're in. Okay. So the first thing that you have to do is a prosecutor and I kind of want to walk through this Cornell thing is you must divorce any decisions from your emotions. Everybody is against rape, at least anybody in a prosecutorial capacity. Everybody is against sexual assault. Everybody thinks that behavior like, especially some of the stuff we saw in some of these text messages is abhorrent, um, we're all there, okay. But you have to divorce emotion and you have to coldly and methodically go through the evidence in a case like this and, and think, did these young men commit sexual assault and step two is the evidence strong enough to convince a jury beyond a reasonable doubt? And if the answer to either one of those questions is no, then you cannot and should not ethically file a case like that. Okay. the way just to highlight is you and I've talked about this countless times, but I'd be remiss if I didn't mention it. The prosecutor has a different ethical north star than the defense lawyer. And you want it that way. Our system is predicated on that. You want a prosecutor who like Matt, if they don't really truly look at the evidence and say, "I can get a conviction beyond a reasonable doubt. I have that kind of mindset, then I'm going to walk the kind of public blowback be damned." Isn't that correct? As opposed to a defense lawyer who is public blowback be damned, I'm here to zealously defend my client. It is perhaps the most important job of any prosecutor, Mark, and that is fundamental fairness. And a lot of times that means standing up to an angry mob, and you have to make that unpopular decision. And one of the units I rotated through in my career was I went through the gang unit for a brief time before they moved me out of the felony panel. And Mark, you'll remember this, there's a thing called the target program where what they would do, law enforcement, target gang leaders. Got a good memory. I was, as soon as you said that, I knew where this was headed. Yeah, look, and I was 100% for that. And you'd see these older gangsters, the ones that were the real psychopaths, and they would recruit these younger guys. And they were an absolute cancer to the communities in which they lived. And I supported the target program. The system created that. You want to explain to how? That's right. The California State Legislature passed Penal Code Section 186, or the Street Terrorism Act, where they would basically go after gang leaders. And I'll tell you, it worked. But when you're a prosecutor using that two-step process, Mark and I were just talking about, sometimes you would have really enthusiastic detectives and you'd have a really bad guy, legitimately really bad guy. And they would put, sorry, I got to swear here, a completely bullshit case on your desk. And you look at it and be like, what's this piece of crap? I'm not filing this. And this is important for the criminal case. They'd go, yeah, but this guy's an asshole. And I cannot tell you more how many times I butted heads with detectives. The, yeah, but this guy's an asshole thing is not an element to a crime. You don't get to introduce that. That doesn't come in as big of an A-hole as that guy might be. Or in this case, as important as the behavior was. And Mark, just quick or story, I had one case that stands out. Remember those Carl's Jr. little plastic numbers? You place an order at Carl's Jr. and for our East Coast audience. That's a big burger chain in California of Carl's Jr. You make your order and they give you these plastic number thing and then you put it on your table and your orders ready. Sort of like number 47. They did a probation search on one of these gang leaders and they wanted me to file a 496 for the audience. That is a felony possession of stolen property on a plastic frigging Carl's Jr. tag. And I'm like, I am not, I can't do this with a straight face. And I got the, yeah, but this guy's an asshole thing. You can't file a case because somebody's an asshole. You can't, I think the first case person comes in. The first cousin of that of the, yeah, but he's an asshole is the, if he didn't do this, he did, we know he's good for something else. Right. And that's called injustice, right? And that's another thing. Nietzsche has one of my favorite quotes, Mark. You've heard me quote him many times on this. Those who endeavor to fight monsters must be careful unless they become monsters. And fundamentally when we're talking about campus rape, the idea that some guy could rape a woman on campus or anywhere else and get away with it, what gets us is the injustice of that. It is fundamentally an injustice. That's what gets our blood boiling. It's not fair. It's not right. And I dedicated my professional career, guys, to going after sex fenders and protecting victims of sex crimes, okay? But when you, when in the idea of going and fighting injustice, as soon as you start abandoning due process or fundamental fairness, you are now creating injustice in the idea of fighting injustice. And in Nietzsche's view, in other words, to go fight monsters, sex offenders, you have now become a monster. You are now generating injustice. And that's not the way that this can work. And well, remember the LAPD rampart scandal. That became the whole theme for LAPD rampart is that while fighting the monsters, and that's why all of a sudden, people were getting phony evidence put on them, having all kinds of, you know, people were aghast at it, and the argument always was, "How could this happen? How could this happen?" There's gambling in here in this establishment. You put your finger exactly on it. When you don't rigorously apply the standards that you have to, is when you get to these kinds of basically bound down to the mob. Yeah, and you cannot bow down to the mob. Mob justice is injustice every friggin' time. It's like my cop case that I just did in the way. Mark, we're, you know, Black Lives Matter. It's like, okay, we had a white police officer who shot a black man who turns out it wasn't a firearm, okay? But the idea that we're against that, we're against police officers unfairly shooting people, that doesn't mean that then you go convict an innocent man because we're against it. Because we're against campus rape, does not mean that you can prosecute a case when the evidence does not establish proof beyond a reasonable doubt, okay? So, I wouldn't have drilled down on that even more because what was driving me crazy while in your absence. And I, I may have even invoked you, and now we'll see how well I know you after four and five years. I said, the idea, and who am I to? You rarely, do you rarely see me taking up for a prosecutor? I don't know. I mean, this Thompson County, I don't know the Topkins County prosecutor from Adam. I don't even think I could pick him out of a lineup. But can you imagine, I used to say, I've told this to so many people, the somebody coming in, a cop coming in, having a robust investigation to begin with, or at least just getting the text messages and having the text message where the purported complaining witness is saying everything we did sexually was consensual. A real-time text message that says that. Can you imagine Matt Murphy saying, "Yeah, I'll just put that aside because she could evolve around that later on." I mean, you know? No, look, and let's look at it. He's gotten so much heat. I saw an interview between him and Jake Tapper, where Jake Tapper clutched his pearls and said, "I have a daughter and I can't believe you didn't do more." I have, it's like I can see that make you. I've got a daughter. I've got granddaughters. And Jake Tapper was so ridiculous in that interview that me, who never misses an opportunity to slam a prosecutor as you will know, I was like incensed. In fact, I don't know why he didn't get more incents. - That's all, right, and the DA, and I can't even remember his name. He handled that pretty well and he said, "I'm bound by New York Law." Okay, so let's talk about that just for a second. What was he presented with? He had a six-page statement, swan under penalty of perjury, where this woman described a crazy night where she engaged in consensual sex, according to her, with several young men and her concern essentially was, she believed that she had voluntarily consumed so much ketamine that she wasn't capable of properly conscing. Okay, and this is important for everybody to understand. Under New York law, voluntary intoxication is a significant factor in determining whether or not an intoxicated person can be raped. California has a different law, but I bet New York winds up changing their code on this work, I wouldn't be at all surprised. - Well, remember, point out that case, remember the case at Stanford. That is a good way to put exhibit A, exhibit B, California, New York. - Yeah, and look, and personally, I think that a woman who is voluntarily intoxicated to the point of unconsciousness should not be a defense if somebody takes advantage of that and then rapes her. That's the way it is in California. And Mark, I've argued those before, and just so the viewer understands. - I was just gonna say, Matt, if they, for those who don't, aren't in the weeds on your history, Matt was truly in Orange County, a techno prisoners sex crimes prosecutor, before he became kind of, everybody knows you as the homicide guy. I know you as that young, swashbuckling, good-looking prosecutor, who I hated to have in my cases because-- - Dashingly good-looking, Mark Dashingly good-looking. - Trial was always a problem. I'd have to bounce every eligible in their muckers. - No, but no, that's right. Look, I've prosecuted day rapes before. I've done numerous day rapes. I did 17 trials while I was in the sexual assault unit, and several of those were, in fact, day rapes. I've lived this, I have listened to the victims, I understand how this works, and I'm gonna go, even a little bit farther, good, Mark. Back when I was at UCSB, I joined a fraternity, and I stumbled in as a fall quarter freshman, and I'm gonna talk about this at the very end of our show today, but I lived in my fraternity for four years, and, you know, the fraternity. right now are so they're getting so much heat. And a lot of people that walk by a fraternity party during college who are now on CNN bashing fraternities, my fraternities started a date rape education program called Greeks Against Rape, my sophomore year mark and I'll go into that a little bit more. But the idea that fraternities are somehow this like all these guys twisting their mustaches next to a rape and rape petri dish, right? Then it's a rape petri dish. They're in fact they are the exact opposite and I will debate it anytime with anyone I lived in my fraternity house for four years. There's some of the best people I've ever met in my life. We raised money for the Make a Wish Foundation and for handicapped kids and we kept the Glita Valley Boys and Girls Club a float and we coach special Olympics and among the things my fraternity created a program where we basically we realized and let me just back up again Mark. When I was a fall quarter freshman we had a woman from the UCSB Women's Center who came in and to speak to the students about rape on campus and she was angry and she was you could tell that she did not like men and she began basically by telling us some of the statistics and scolding every man in that room for essentially being a de facto rapist and when she saw my pledge pen I was the devil in that room and Mark and I look Mark you and I communicate for a living right? Our job is to stand up in front of juries and have people have an open mind and follow the law and explain what the evidence and the facts were and if you want to shut down a group of people start by saying hey you're all a bunch of rapists now let me tell you why okay so what we did is we approached it from a different perspective this is the the day we have education program at UCSB it was we're going to gather all the incoming pledges for the sororities and the fraternities we're going to sit all these young men and women in a room that are all going to be getting drunk and parting together and have an honest discussion about communication when you know when you're drunk and horny clear communication understanding was happening and then we'd also explain to these young men what the definition of rape was and how if you go beyond the word no or you or you're with somebody who's too intoxicated to affirmatively consent that not only can you is that rape to remove any ambiguity of that but you're going to bring dishonor on your entire fraternity there will be guilt by association like we've seen in this case and you will bring every single guy that has trusted you with the pen on your chest into disrepute if you cross that line and it was a huge success it was it started getting adopted by other schools I worked with Tom Hayden famous one of the Chicago 8 Jane Fonda's husband who's in the California state legislature I am Tom Tom brought me the founder of homies you need us many years ago and we were able to successfully get him out of immigration custody you talk about a different era but Tom was Tom was a very ahead of his time I guess he was ahead of his time and it didn't pass the California state legislature then I bet it would now but the idea was like let's have a constructive education program for incoming students for all you see in state schools okay so that was my question though I have a question though from the framework of Cornell 7 because as you're talking about this I don't know if you've seen this week when this lawsuit was filed kind of everybody was named including the president of the fraternity and you see that man I know where you're going on this it drives me insane how and I'm sorry guys for the viewers I told not to swear so much I can't help it how do you fuck that up Mark you have a responsibility as a prosecutor or filing civil cases I have filed sexual abuse civil cases as a plaintiff's lawyer before you have a responsibility before you name somebody in a complaint to do a modicum of due diligence before you ruin the life of a young man and for the audience what Mark is talking about at the same time that you're arguing cloaking the accuser in anonymity you are identifying and misidentifying young men and ruining them it just think about the amazing hypocrisy the amazing incongruence and where and how you have to divorce yourself from any north star in order to proceed in that fashion it is Mark it it this is my opinion here that conduct represents the worst of our profession where you are going to willy nilly slip shot throw a name on a complaint like this you're going to destroy a young man's life and by the way being the president of fraternity so the viewers understand it is the most searchable obvious easy thing to find who was the president of the chi five fraternity in 2024 and there's composites Mark every fraternity has an annual composites like your book where the the president is right in the middle and their name is right underneath it it is it is inconceivable to me that you would not check that before you accuse somebody of being responsible for a vicious gang rape it is I can't wrap my head around it it is not okay and even I love our our colleague John us billboard I agree with almost everything she says but she was like oh yeah some mistakes sometimes happens it's the only time I've heard John us say something that I disagreed with and I I cannot tell you how strongly I disagree with that and this is the same guy and I'm sorry he's a friggin clown this this plaintiff's lawyer is a clown he accused my partner Mark air goes of leaking information to to Harvey leaven on TMZ as if TMZ needs sources right he he did that mark with no basis it I was well 10 thousand miles away defensive is it's almost sexist he did it because of my daughter no and he's trying to fight he's trying it's like he's trying to use you to get to your daughter that is a that is a scumbag move I'm sorry I don't know this guy but I I cannot believe he did that and another thing Mark he is now on this gag order thing that he lost I saw an interview the day before I left between him and again Jake Tapper where he's talking about the the the title nine investigation that and then he came out and said I'm well I've only been responding to what the defense said that is a demonstrable falsehood that is not true and I and I'm watching this from 10 thousand miles away mark like looking at my computer just going I cannot believe that this guy is so bossy that he's accusing you with no evidence trying to say trying to link that to to tell you how many people did they interview in this tunnel line thing like over a hundred people Cornell and by the way let's going back to the the prosecutors job of reviewing this one of the things that came out in the title line investigation and this is a huge deal in her statement she accused two of the young men of doing ketamine off of her body and during the title line investigation that they really they they did a pretty thorough job here Mark they part of the evidence in that is those guys said that's not true and they submitted themselves to a hair test and for the viewer that doesn't know the the way ketamine and other drugs is metabolized in the human body there will be searchable elements of that found in hair and root root for retrospectively yeah that's right you can go back months and both of these guys said that's not true remember what's your name shaved your head remember what yes search my hair right and they did and they were able to conclusively prove that that part of the statement is not true that's a fact that was not available to the prosecutor when they refused it from a prosecution perspective once we again divorcing all emotion taking a step back this one is not even a close call guys and the the idea that Tish James in New York would come in and I'm going to offer one tiny bit of criticism here towards a legal move that your daughter made Mark and I know there's this was well thought out but Tish James was appointed by Kathy Hocal so this has become overtly political another thing that nobody talks about is there's an ethical prohibition in the model rules you cannot base any criminal prosecution on political considerations it's black letter ethics and nobody seems to have a problem with this in the state of New York I don't get it you cannot politically charge people with a crime or if politics are playing a role in the prosky troll decision okay so Tish James already made a series of statements saying I'm with the victim and I've got another problem with that too but but before we even get to that she has already like announced a bias before she is in any official official capacity it's not an opportunity to review the investigation or the files so so Tini your daughter filed a very proper motion to have Tish James removed this is my strategic problem with that Mark I had a case where I represented a group of women in a very very similar thing involving a Newport Beach surgeon I'll leave his name out where I represented five women pro bono as Marcy's counsel so for the viewer that means I represented them through the criminal process and the Orange County DA I, in a, in a move that I totally disagreed with, brought a motion to dismiss that case. I opposed it. I won. Second time in California history, a judge, they agreed with me, and refused to dismiss a case based on emotion by the prosecutor. So that means that the California Attorney General came in, Mark, and I will, and I'm here to tell you, they are utterly inept in sexual assault cases, and that they wound up getting, like, the process went on for two years. They treated my clients like hell. They dragged them through the mud. It was an awful experience, and that was because they were in Kovans case. Yeah, it was Phil Kovans case, and as you can imagine, Phil and I went at each other, okay, for about two years, and he was like, who am I closest friends? Yeah, he is a, he is a fine lawyer, Mark. He really is. He's a smart guy. He wound up an opposite answer that one, but I couldn't, I couldn't, I couldn't prosecute the case myself, and I had to try to convince the California AG had to do this. And I, I sail this because when, when Kathy Hocal appointed Tish James to this case, it sounds really heavy, right? Like, wow, the New York Attorney General is coming in, it's a special prosecutor. Attorney General has this huge ring to it. So for the viewer, it sounds like they actually know what they're doing. They have no clue. Tish James has never prosecuted one of these cases personally, she has no idea how hard they are. I guarantee you, Mark, she, all the King's horses and all the King's men, there is no lawyer in the Attorney General's office of New York. There is no team of lawyers in the AG's office in New York that has the confidence or professional experience to successfully prosecute this case under Prong number two. And my only problem with, with, I'm going to, I'm going to cut you off. You know, you're absolutely right. So guess what she's presently doing. She was drawing that? I've heard this, not from Kenny, not from Kenny, it's a very small, I often say New York is very parochial, it's very small, she's out there shopping for, for independent prosecutors right now. Of course she is. And you're not even dealing about independent counsel. Tish James is actively searching for an independent prosecutor as we take this because of exactly your point. There is in a single person that I'm aware of that knows, yeah, any, like you've forgotten more than their collective office knows about sex crimes, prosecution. They can't win it. Mark. They cannot win it. Tish James can't win it. She can person do it herself. So that was my strategic, like, I'm not sure about that when they, because you were agency, they've gone to the usual suspects. I can't, you know, it's kind of funny or ironic, I, one of the people who they normally would go to, I think is obviously conflicted, but I have a pretty good, if I were on the prediction markets and not set for trial in December, defending Mr. Van Dyke, the American War hero, I would, I would probably be on the prediction markets and start a question, resolve whether Tish James appoints a outside independent counsel to prosecute the Cornell seven case. For precisely the reasons you just articulated. Yeah, and that's the thing is that a good judge would look at her statements ahead of time and say, yes, this has the appearance of impropriety, which is the standard, and say that you, and conflict were off, my fear there is that then somebody with some game and some zeal might come in and, and, and present a much more formidable, you know, opposition to that. And in mind, I've got two minds for that conceptually, if I believed, and I'm thinking this through hypothetical, I'd love to get sure, but if I believed that, look, it's clear to me that there's an appearance of impropriety, and I've noticed James, I've, I have, I know her socially, not professionally, but socially. And if I believe that her statements were, um, dispositively, an appearance of impropriety, which they, they, it just appears to be, I mean, it, you don't want somebody who comes in, as you said, and kind of bowing to the crowd in, or, or, you know, taking a need of the mob as the mob is coming at you. If that's the case, I would, and I thought, and rightfully so, that she would file, come hell or high water, because it's a political football. And then I would want an independent sex crimes prosecutor like a Matt Murphy. I have, if I was Paulie Anish, and I believed that there was a version of Matt Murphy in New New York, I would want you to take the case, because as I've said with you in abstentia, a Matt Murphy who looks at this case would not file this, and he would take the heat. But that's what worries you, I guess, right? No, exactly, Mark, is it, look, fairly evaluated, the DA in this case, and that's another thing, like, take tap or saying, oh, I can't believe you didn't investigate it more. This is the way it works, guys, the, the, the police investigate, the, the prosecution reviews it. Also that statement, it's my understanding, she had, it was a female detective that interviewed her. She was allowed to make a series of corrections, she made over 20 corrections to the one, this is the, the original six page affidavit, I guess we can call it, because it's signed under penalty of perjury. She was allowed a victim advocate during that, and one of her friends to sit in there. So they didn't mail it in either, they, they got all this information from her. I don't know how you win that after that. And again, for the audience, before I start getting all, all this, all the hate, this is, I'm, this is, I'm approaching this from the position of what a prosecutor sees when it is presented them under the ethical umbrella of when it is appropriate to file criminal charges and when it's not. And another thing for the, for the viewer, one of the parts of being a sexual assault prosecutor that is the toughest part is you see cases all the time. You see two different, I mean, you see a lot of different kinds, but one is you see cases where you believe firmly that the person is a horrible human being, that they even committed the crime, but you can't prove it, which means you miss that second prong. You cannot file that case and you know that this happens a lot with little kids that when you refuse that case, it's the person may become a victim again. It is one of the hardest parts of that job. It's mind-boggling to me, just the bad information, the misinformation, the coloring of the, what the real standard is, the law is and everything else. And it, the frustrating thing about this, the build on your point, this case was, people called, well, wasn't investigated, you know, the Jake Tapper clutching a pearls. I love that. But have you ever seen as much material, I mean, there was more material and more investigation done in this matter than there is in 98% of the cases that come across my desk over the last almost five decades. Well, that's the thing. Mark, and you hit the nail on the head there because what the DA can do under circumstances like this and what the DA has gotten criticized for is not doing follow-up investigation. So when you have a case that lands on your desk, there's three things that you can file it, you can refuse it and you can refuse it for additional follow-up or you can make a determination that the person's innocent, okay. So the additional follow-up, title 9 here, they went through Cornell did an extensive investigation here, including review of all the text messages and those text messages are tough. And look, there are cases certainly where legitimate victims of sexual assault will come back and their hesitant to report that happens all the time, where it's real, where the person really did it. But one of the things you also have to look for as a prosecutor, Mark, is you have to look for ulterior motives, okay. And one of the most common cases you see in sexual assault is you see custody disputes where there is an uncorrelated accusation of sexual abuse against the DA at, right? And you follow, right on the heels, right on the heels of the filing for divorce or the custody, custody battle. You see those all the time, I had an old detective Don Hall with Huntington Beach who used to submit those on my desk, Mark, with a little yellow tab with R&R written on it and it stood for read and reject because it's so clear, it's not true, it didn't happen to you. And so many of you say that, I made a point while you were gone that it's so often one of the kind of, I think, axiomatic practices of criminal law. If you're an investigator, does not want the case filed, the investigator knows what levers to push. >> Yeah. And especially when you're working in a vertical, you have a relationship of confidence and trust without detective, and these are cases where, I am a huge victim advocate, guys. I dedicated my career to this. But there are cases that you either can't file because there just isn't enough evidence. Or sometimes you encounter ulterior motives and actual reasons to lie. So one of them is you got a custody dispute. Another big one, Mark, is when you look at the facts of this one, you got a civil suit, right? And also, when you name the wrong guy as the president of a fraternity, ruining his life and you're so negligent in the way you do it, he has been subjected to public scorn. That young man, I don't know him, I don't know any of his lawyers. That is an outrageous thing to do. It's not right. It's not fair. What else is incorrect in this complaint, right? And another thing that nobody's talking about, in the official case. statement by the DA. He said that after refusing the case, the attorneys never came to him and asked for them to reconsider. I was really surprised by that. That Jane Doe never came and asked for him to reconsider. And I was surprised by that. And you know this, Mark, there's a thing called collateralistoppel for the viewer where, because the burden is higher in a criminal case, as a plaintiff's lawyer, you always want the DA to prosecute it because once a fact-- -You've got to slam dunk app. -It's a slam dunk. Once a fact has been proven in criminal court, it is presumed to be true for the purpose. They are stopped from even arguing the opposite regarding the civil case. You automatically win and the only question then becomes a matter of damages. And Mark, that lawyer never went and asked to speak to the DA. I was really surprised by that because it's such a tactical advantage on that. And I think that they will probably toll the civil suit while this is investigated by Tisch James or whoever. But look, Mark, in my view, any fair prosecutor reviews these facts that isn't bowing to the mob is going to refuse it just like the DA did. This was a proper refusal. And when you divorce yourself in the passion and the yab at their assholes and that sort of thing, which a professional prosecutor ethically has to do, I don't see how you ever file this because I don't see how you ever win it. I really don't. Unless we drum up a mob, but I'll tell you what, Mark, it was-- I took it personally. That guy took a swipe at you to get at your daughter. And I just-- that pissed me off from 10,000 miles away. It's not okay. And look, when it comes to this fraternity thing, again, I will debate whoever that faculty member was. I will debate anybody any time. I dedicated my professional life to advocating on behalf of sexual assault victims as Mark knows. And this is one where I don't even see it as a close call. I'm sorry. I just-- I don't. And I'm as anti-rape, as an anti-campus rape, as anybody-- as anybody could be. And this is one where I see the mob is making noise. It's not fair. And I worry on this one, Mark. I really do. Yeah. So I appreciate that. You've landed. It's almost like the amen choir. And I appreciate it. And it's fantastic to have you back. You can't leave again for three straight weeks. I got another dive trip coming up at it. It's only about one week. So you're going to have to figure out a way or we're going to have to rope in Natasha to figure out a way. So thank you. And before we get, Matt, you had some final thoughts on Cornel 7 in the fraternities. I don't know that he's-- that he can top what he just did. But I'm going to sign off now. And Matt, I missed you. And like I said, you're not going to wait for three straight weeks again. Thank you. No, no. What? Yeah. Not until next year when these guys maybe get on that boat again, Mark. So now I miss the show. I miss talking to you. And I'm really happy to be back. Before we leave, I just wanted to talk briefly about fraternities. And I wanted to share a little bit of my personal experience. I grew up in a house where my parents were kind of unhappy people. And they had a drinking problem. When I went off to college, I was never going back home. And I'm not complaining. It just was what it was. But a fall quarter freshman year, I showed up the doors of Phi Sigma Kappa fraternity at UCSB. And those guys took me in. And they gave me a home. And I lived in that house for four years. And they were then and remained some of the finest human beings I've ever known. So people on college, they walk by fraternity houses and they hear the music on a Friday or Saturday night. But so many of the people that are talking about this Cornell seven case have never been an opportunity themselves. And they don't know what happens behind the parties. What happens on the other six nights out of the week or really the other 29 nights out of the month when they're not having a party. And what fraternities do, it's an American tradition where it is men and women that live in a house together. And in my fraternity, it was straight men. It was gay men. We had every race, virtually every race in the world represented. And you put these young men together and you call each other brother. And what you do is you go through life together for those four years and you deal with breakups and you deal with the deaths of parents. And you deal with really heavy life things and you support each other. And you also learn about what professors are best and what classes for your major and what programs are available. And it was in conversations with my fraternity brothers that made me decide to go to law school. And you take these young men and you teach them responsibility and you learn the history of the fraternity. And you learn things like honor and fidelity and mutual endeavor. And you talk a lot about helping other people. And fundamentally, these are charitable organizations. And as I just talked about with Mark, we raised money for the Make a Wish Foundation. And for handicapped kids at Debra School. And that fundraiser we did with Omega 5-Sci, which is a black fraternity. And we got together in their black eyes and my fraternity already. And we raised money together working together for handicapped kids. And we kept the Glita Valley Boys and Girls Club a float. And then my fraternity started Greeks Against Rape, which was focused on preventing sexual assault on campus. And it worked. It was it was a huge hit. And you know, you're trying to measure a negative here. But the idea that fraternities are this hotbed or marquees were petri dish of rape and sexual assault is bullshit. And I will debate anybody any time about the good that can come around from fraternities and sororities and how they can help people. And for me, and I didn't drink either. I didn't ever touch the drop of alcohol the entire time. I didn't drink and my fraternity didn't care. And they saw potential in me that nobody else saw up to that point. And they funneled me into positions of responsibility that I was over my head in. I became vice president of my fraternity. And it was one of the best most transformative experiences of my life. And so for all of those who watch the parties from the distance and think, you know, that's what fraternities are all about. That is, of course, when you throw a bunch of young men together in a house, there is beer and there is fun and there is that. But there's so much more behind it about helping people and helping each other. And they are truly forces for good. And I know this because I lived it. Okay. So I was gone. I was on my trip and I've heard a lot of people bashing fraternities and sororities. I think that the that Cornell shutting down some of the fraternities. I think that's wrong. And I think that people need to take a deep breath, take a step back from their emotions and ask themselves, like Jake Tapper said, well, I've got a daughter and I'd be mad if it if it was investigated like this. I ask everybody to think about their best friend who is a man or their son or their uncle. And whether or not you would want them to go through a process where the mob decides their guilt or innocence, where do processes thrown to the side and where people are treated fundamentally and fairly to appease the emotions of a mob that doesn't know all the facts. So I know I'm going to get some heat for that. I'm okay with it. That's it. Thank you for letting me vent. I missed this whole thing while I was gone. And yeah, thank you for watching our show. And please watch us next week too.