Were these six highly televised and dramatic cases defined by headlines, or determined by them? Now streaming on Netflix, the docuseries Trial by Media explores how news coverage and public conversation around high profile crimes have had a lasting impact on United States criminal justice systems and culture. In this episode, Rebecca Lavoie (Crime Writers On…) speaks with CNN’s Chief Legal Analyst, staff writer for the New Yorker, and Executive Producer of Trial By Media, Jeffrey Toobin. There will be spoilers so make sure to watch all of the episodes on Netflix before listening here! A note to listeners, due to the COVID-19 pandemic, this episode was not recorded in a studio. Thank you for understanding the change in audio quality.
Were these six highly televised and dramatic cases defined by headlines, or determined by them? Now streaming on Netflix, the docuseries Trial by Media explores how news coverage and public conversation around high profile crimes have had a lasting impact on United States criminal justice systems and culture.
In this episode, Rebecca Lavoie (Crime Writers On…) speaks with CNN’s Chief Legal Analyst, staff writer for the New Yorker, and Executive Producer of Trial By Media, Jeffrey Toobin.
There will be spoilers so make sure to watch all of the episodes on Netflix before listening here! A note to listeners, due to the COVID-19 pandemic, this episode was not recorded in a studio. Thank you for understanding the change in audio quality.
[Music]
Rebecca: Welcome to You Can’t Make This Up, a companion podcast for Netflix Original true crime stories. I’m Rebecca Lavoie, your host. Each episode will take a close-up look at a binge-worthy true crime documentary or series, and I get to talk to the people who made them, digging deep into the back stories and getting answers to questions raised by what we just watched.Up this week, the six-part docuseries Trial by Media.
The series spotlights how news coverage and public discourse around high-profile crimes have had a lasting impact on our criminal justice system and our culture. And along the way we get a new window into six of the most fascinating and controversial trials in recent American history. I’ll be talking with Jeffrey Toobin. He’s an executive producer of Trial by Media.
Toobin is also a prolific author, CNN’s chief legal analyst, and a staff writer for The New Yorker. This episode contains spoilers for Trial by Media, so make sure to watch all of the series before listening on.Now, because of the COVID-19 pandemic, this episode will sound a little bit different. Our guest was recorded in his home and not in a studio, and we appreciate your understanding.
Male: I found out early on as a lawyer it didn’t matter about the law. It’s about being able to tell a story.
Male: When you turn a courtroom into a studio, you have to turn reality into a story, with good guys, bad guys, drama.
Male: You’ve got to come up with ways to become part of the news cycle.
Male: I’m not saying the trial is a theater, but court of public opinion is very important, because if everybody in the building likes these guys, they must be the good guys. Right?
[Laughter.]
Rebecca: Jeffrey Toobin, it’s so great to talk to you. Thanks for doing this with me.
Jeffrey: Hi, Rebecca.
Rebecca: I have something that I need to ask you, first and foremost.This is a series—by the way, it’s outstanding, and I never say that unless I mean it—but this is a series about the intersection of media and reporting on true crime and public discourse around big trials and how that has, you know, influenced maybe the outcome, influenced the way that people behaved in the case. You are a television legal analyst. So I’m wondering, when you embarked on this project, if you saw yourself, kind of, as somebody who is in this space and how you feel about your role in that and also working on this project.
Jeffrey: Oh, absolutely. I mean, and to a certain extent, you know, I felt like this was kind of a, “This is your life,” story for me, because I had covered some of these cases, some more intensely than others, but also just the issues that are raised by all of these cases about the intersection of law and media, and to a certain extent of politics, you know, that’s what I do all day long.
And that’s what I’ve done for my entire career. It made me sort of reflect on the good and the bad of how media can illuminate, but media can also distort, and how media is part of the legal system that, you know, judges and lawyers and law professors don’t always acknowledge, but as this series makes clear, is very much part of the real world.
Rebecca: I just kept thinking about, you know, the observer effect, that theory in physics that if you observe something, a phenomenon, for instance, you change it. And that seems to be the case in just about every case, and in so many different ways, that’s covered in this series, and other cases too. And in each one of these cases, you can really see the roots of big cultural themes take hold.
So, for instance, one of the ones that comes to mind is the Subway Vigilante, the Bernie Goetz case. Watching that episode of this series, you sort of see the very beginnings of the seeds of the Black Lives Matter movement. You see the very beginnings of the seeds of the rise of the NRA as a force for gun ownership of citizens. How important was it to you to choose cases for this series that reflect something much bigger that we can all relate to and see all the time right now?
Jeffrey: Absolutely. That was a key part of it, because all these trials—I mean, the great thing about all these trials is that they are interesting on their own terms. And, often, in most of these cases, it’s not easy to decide what the verdict should have been. So, you know, it has the traditional drama of a courtroom. You know, “Did he do it? Is he going to get convicted?” At the same time, all of these cases have a larger political significance.
Sometimes it takes a while for them to come to fruition, and sometimes you can see it right during the trial.And, you know, you look at something like the Diallo case, which really was very much the beginning of the modern Black Lives Matter movement. Or, as you mentioned, Bernie Goetz, I think it is not difficult to draw the line between Bernie Goetz and Donald Trump.
Rebecca: Umm.
Jeffrey: And then you get to the Blagojevich case, where in sort of this amazing conflation of events, Blagojevich has his sentence commuted by Donald Trump as we finished this documentary because his wife was on television on Fox News so much and appealed to Trump directly. I mean, you cannot have a more direct relationship between the media and the resolution of a case than went on in Blagojevich.
Rebecca: Let’s talk a little bit about Blagojevich because, you know, he does something that a few of the characters in this whole series do, is he chooses—you know, while his case is still active, pending, you know, after he’s been indicted, he chooses to become more of a media figure, which anyone who’s watched a single episode of Law and Order knows, like your lawyer always tells you not to talk to anybody.
And as, you know, a true crime reporter, I know you can’t talk to people when their cases are pending. But he chose to thrust himself into the spotlight more so, as like a proactive tactic. Can you just talk about that and, you know, whether or not you thought that was a good idea for him?
Jeffrey: Well, one of the tensions in this whole series is the question of, “Does it help or hurt for a defendant and his surrogates to go out and be public figures?” As you say, you know, those of us who cover trials, we almost always hear from defense lawyers, you know, “I’m going to try my case in the courtroom. I’m not going to try to get out in the press before the trial.” And that is often the best advice. Blagojevich failed to follow that advice.
And I think it was a dumb idea, mostly because he was guilty.And the more he talked about it, the more it seemed he was guilty. You know, for all that the media is important, I do think it’s also important to emphasize that the facts matter in these cases, what actually happened and what comes out in the courtroom. You know, sure, there are other factors involved, but the facts always matter.
And Blagojevich was trying to fight a narrative that was presented in the courtroom. However, he and his family kept after it after the trial, after he was convicted and sentenced. And that turned out to be very effective, to be in public about the case.So the real world is a complicated place, and sometimes the right strategy at one point is the wrong strategy at another, and sometimes vice versa.
Rebecca: Do you think it helps someone like Blagojevich that, you know, America felt like they knew him, I mean, on the Celebrity Apprentice? I actually forgot the extent to which he became a media darling when all of this was going on, doing all of these talk show appearances, being self-deprecating reading the top 10 list on the David Letterman Show, you know, all that stuff.
Do you think it helped him ultimately though that we just feel like we know him? And maybe he did all these illegal things, but he lives in a state where there’s lots of corruption in politics. And he has that great hair, and his wife really seems to like him. So, I mean, it did help him, right?
Jeffrey: I think the answer to that is yes. And I think, again, one of the things Trump has taught us is that, if you are totally ubiquitous and you become a permanent fixture, people will kind of not focus on any individual thing or individual act and just develop an impression of who you are. And Blagojevich wound up creating this persona of just sort of a lovable rogue that, you know, sure, he did some things he shouldn’t have done.
But look at this guy. He knew how to make fun of himself. He had a nice family. Nobody was killed. And that, I think, did help him, because when Trump ultimately commuted his sentence, people thought, “Well, he probably got away with something, but, you know, he’s not the worst guy on earth.” And my favorite episode that we haven’t even talked about yet was one that I suspect is least familiar to the broader public, which is Richard Scrushy.
Rebecca: Oh, yeah.
Jeffrey: And Richard Scrushy was a healthcare executive in the Deep South in Montgomery, Alabama, who was involved in a financial fraud. And he seemed awfully guilty to me. But his lawyer created this incredible media offensive around the case and using in the most transparent, cynical way efforts to ingratiate themselves with the African-American community, which was very heavily represented on the jury.
And that persona—which as far as I could tell was completely fake, was invented by his lawyers—seemed to work like a charm. He, you know, managed to create a persona for himself for the jury, both inside the courtroom and in the larger media environment, that made him a far more sympathetic figure than he deserved to be. So I think, in that respect, the media strategy was an unbelievable success.
Rebecca: That was more than a media strategy though. That was a cult of personality strategy to an extreme degree. Basically, this rich white guy was able to—through reinventing himself as both a televangelist and an ally of a black religious community and these black churches—able to then portray himself publicly as one of the oppressed, which was extraordinary to me. Can you talk about that?
Jeffrey: Well—and, you know, we shouldn’t love one child more than any other, but I really do think the Scrushy documentary is my favorite, both because the story is completely surprising and his two lawyers, his two defense lawyers, who are interviewed at length in the documentary, are just so hilariously transparent in their effort, you know, and to show what was really going on, which was we knew this was going to be a largely black jury pool, so we decided to reinvent Richard Scrushy as this Montgomery, Alabama civil rights activist.
And Scrushy joined this black church. He regularly appeared there. He had a television show with his wife that, you know, reflected sort of these newly discovered religious values. So the cynicism and the transparency of what the defense lawyers were doing in the Scrushy case was almost too sublime to believe.
Male: And I said, “Wow, folks, did you hear all this stuff that this government said in this case? Good gracious alive. It doesn’t sound like we stand much of a chance.” Stop right there. So now I’m playing to that role of we’re the underdog, and because everybody likes an underdog.
Jeffrey: It worked. And he got acquitted in that case. And, to see how that worked and to have these really funny lawyers, one of whom was African-American, one of whom was white, how they put that strategy into effect was just delicious.
Rebecca: It was. And it was also—the postscript to that was delicious. One of his lawyers was later indicted himself, right? And then Scrushy still maintained this like televangelist personality all these years later. And I’m like, “Why are you still doing this?” I mean, maybe he just—he came to believe his own character to actually be true.
Jeffrey: He did, although, as you noticed in the postscript, he was tried again and ultimately convicted.
Rebecca: Right, right.
Jeffrey: So his act wore thin eventually. And, again, I point out that, you know, the facts do matter.You know, the message of this series is the facts are certainly not the only thing that matters, that marketing matters too.
Rebecca: One of the things that’s so fascinating to me about this series, you know, really are the choices of cases. And they are big, touchstone cases that like really point to a moment that’s really easy to set up context around them, because it’s just so stark.
And one of my favorite episodes of the series—I love the Scrushy one too, I’ll be honest—but one of my favorite episodes is the one about Bernard Goetz, the so-called Subway Vigilante in New York. I remember this case very well. I grew up in New York. I was a kid when it happened. But the thing that I forgot was once again how Goetz, to a different result, also became a media darling at the time.
There might be no more like 1980 shot than Bernie Goetz sitting on a couch with Barbara Walters eating Chinese food pleading his case and talking about all the reasons why he shot these four young men. But his choice to become more public and go out and talk to the media and kind of be out there did not do him any favors in terms of the public perception of him the way that it did these other guys.
Jeffrey: It didn’t, but Bernie Goetz really touched a chord in New York. You know, I’m also from New York, and I also grew up riding the subways. And particularly in the ’80s—you know, New York has changed a lot since the ‘80s, but New York was a dangerous place.
And those of us who rode the subway and those of us who walked the streets were sick and tired of crime. And crime was just pervasive and scary. And Goetz spoke to an anger that was only barely below the surface in New York. And that’s why he had a—I mean, he had a lot of people who were sympathetic to him.
Rebecca: But he also regaled himself to be a racist, I mean, with his own words. You didn’t have to scratch too deep to find racist statements. You know, he said racist things in court.
Jeffrey: Right. And, you know, that’s why the Goetz case to me is this clear legal premonition of Donald Trump. I kept thinking of Trump throughout watching it, because this whole notion of, you know, white rage and we’re sick of these privileges being given to these black people and we need to take matters into our own hands. The legal system is too slow and bends over backwards in favors of defendants.
You know, a lot of the rhetoric you heard from Bernie Goetz was not all that different from what we’ve heard from Donald Trump. And even though Goetz himself doesn’t fare ultimately all that well in the legal system, there is a resonance that that case has politically that has been pretty successful.
Rebecca: I agree. I mean, it’s one of the first times you really hear a figure like Goetz himself talking about the distrust of the media and being given a platform by the media to talk about distrust of the media. I mean, that’s certainly a thing you can draw direct ties to 2020 there.A lot of public discourse over things like jury selection. There’s an amazing clip of Ronald Reagan.
Male: President Reagan said he could not condone what Goetz did, but he understands the frustration of people who are constantly threatened by crime.
Pres Reagan: Seeing that we got overzealous in protecting the criminals’ rights and forgot about the victim.
Rebecca: I mean, a lot of threats that I think speak directly to politics—you’re not wrong about that.
Jeffrey: And the cast of characters is one—and that comes up in several of these documentaries—you know, people who wind up being famous for other things. You know, Bernie Goetz’s main antagonist was the Reverend Al Sharpton—
Rebecca: That’s right.
Jeffrey: —in a very early incarnation with very different hair than he has now. And Curtis Sliwa was someone who’s probably not familiar to non-New Yorkers, but led something called the Guardian Angels, which was essentially a vigilante group that was walking the subways protecting people. And that tension between Curtis Sliwa and Rev Al is just such a premonition of so much that is to come in our politics.
Rebecca: You know, one of the most stunning scenes in that episode, and really in the case, was when the Guardian Angels were allowed to do that super prejudicial demonstration in the courtroom.
Male: Goetz’s lawyer recreated the shootings with the aid of a ballistics expert. The four Guardian Angels were placed in positions where the defense says the four teens were located when they were shot. A private investigator played the part of the so-called subway gunman.
Curtis: So I told the Guardian Angels, “Act the way these guys act.Act like thugs, like we see all the time on the trains, mad-dogging him and eye fornicating him.” The judge, who should never have allowed that to begin with, was like really fascinated at this. The court was fascinated at this. And then Waples was screaming at the judge, “What are you doing? You can’t allow this. It’s going to prejudice the jury.”
Rebecca: Now, what did you think of that?
Jeffrey: I mean, that would be another thing that’s so great about this series. And this has been a big part of my own career, is that, you know, I’ve written books about OJ Simpson, about Monica Lewinsky and that whole scandal. And one of the things people always say when you’re writing on one of these subjects is that, “Oh, we know that story already.”
No, you don’t. No one remembers the details of these stories. And that ridiculous demonstration in the courtroom, which basically turned Bernie Goetz into this victim, was just an example of how he was able to manipulate the legal system in a way that was really shocking.
Rebecca: You know, one of the things I think a lot of people think they remember, but probably don’t remember super well, is the era of super trash talk TV. You have an episode in this series about Jenny Jones and the murder case that came from an episode of The Jenny Jones Show.
And, you know, as somebody who’s been watching TV my entire childhood and adult life, I thought I remembered just how trashy TheJenny Jones Show was and how inflammatory, you know, the prodding was of guests on that show and how people were intentionally put—and I know there’s still shows like this on TV, so I’m not pretending like it doesn’t exist anymore—but the incredibly heightened sense of, “We can do whatever we want because it’s entertaining,” that came from this era of television, can you just talk about that? As somebody, again, who’s on TV, like what do you think when you watch that?
Jeffrey: Basically, this was an episode about sort of, you know, my secret crush. You know, who’s your secret crush? And there are three people on the stage. And the man reveals that he has a secret crush on another man, the second man.And this is meant to be a huge shock, because like, ooh, a man having a crush on a man.
I think, even in trash TV, the Gay Rights Movement has moved to such a point that it wouldn’t be seen as something grotesque and embarrassing and horrifying, as it was on The Jenny Jones Show. And what happens in the story of the trial is that the recipient of the crush winds up killing the other guy, because he’s embarrassed him so much.
And that just illustrates I think how much society has changed, because I think, even in trash TV, the idea that the guy who’s a recipient of a male crush would be so embarrassed that he’d go out and kill the other guy is, I think fortunately, an artifact and would be at least somewhat different today. The other thing that I thought was so revealing in that trial is that the defense sort of put Jenny Jones on trial.
Rebecca: Yes.
Jeffrey: They said, “You exploited these vulnerable people.You put them in this awful situation solely for the benefit of your ratings.” And Jenny Jones’s testimony in the trial is really excruciating, because she’s an awful witness.
Rebecca: Yes. She really is.
Jeffrey: She doesn’t acknowledge anything about what she was really doing. She doesn’t acknowledge that they were exploiting these people for ratings. And it needs to be said that, even though they were exploiting these people, that didn’t give Jonathan Schmitz the right to kill somebody.
But it was a clever defense strategy to try to shift the blame for this event onto Jenny Jones. And, as a viewer, you think to yourself, “Well, you know, you sort of have a point there, because none of this would have happened but for the intercession of these amoral television people.”
Rebecca: The episode also reveals this meta-layer of kind of the rise of Court TV. And, you know, Court TV was owned by the same production house that owned The Jenny Jones Show. And here they are making money by broadcasting this high-profile trial that is about them in some ways. It’s very meta-situation.
Jeffrey: Right. And that was a kind of surreal confluence of events. And one of my co-executive producers on this series is Steve Brill, who was the creator of Court TV and also the creator of The American Lawyer magazine and someone who really is kind of the founding father of American legal journalism, the field in which I work.
And it was actually Steve’s idea to do this case, even though, you know, it doesn’t make Court TV look all that great either, because they were covering the trial, because it was salacious and interesting and complicated and dramatic. And isn’t that what got everyone in this problem in the first place? You know, I think the line between covering a story, creating a story, and exploiting a story is not that easy to define. And I think, you know, we’re pretty honest about that in the series.
Rebecca: Probably the episode that illustrates that best is the episode about the New Bedford rape case, a really famous case that probably a lot of people have forgotten about unless they have seen the Jodie Foster film, Accused, which is the case that is the basis for that fictional film. That case was nationally televised, that trial.
The judge made the decision to put cameras in the courtroom.There’s the moment where the victim’s name and address is said out loud in court and therefore broadcast on national television. Do you think the gavel-to-gavel coverage in a case like this does change the outcome or the aftermath of a case like this?
Jeffrey: Well, you know, as someone who, for better or for worse, you know, made his career covering the OJ Simpson case, you know, I have thought a lot about the issues of cameras in the courtroom. And I recognize the complexities of the issue.But I still come down very strongly on the side that we should have cameras in courtrooms, that what goes on in these courtrooms is the public’s business.
These trials are conducted in the public’s name. And, yes, there are potential for bad things to happen, but the answer is not to keep these things secret. And the answer that, “Well, you know, newspaper reporters can sit in there and take notes,” you know, in the modern world that’s just not journalism.
Rebecca: Right.
Jeffrey: And in the modern world, journalism means video access, whether it’s now on the internet or on television. And the camera was not guilty, either in the OJ case or the Big Dan’s case, which is this rape case. The problem is the substance of what really went on. And so, as far as I feel, the camera pleads not guilty.
Rebecca: Well, one of the other themes that comes up in the documentary is in the episode about Amadou Diallo, a very famous police shooting in New York where a young man was shot 41 times by officers. He was unarmed. And he was immediately branded as a victim as an African street peddler or an immigrant street peddler.
He was sort of given as a victim an identity that branded him—the victim, who by the way was killed by being shot and unarmed—throughout the case, that then there was this, you know, media push by his mother in particular and by activists in New York to reverse some of that branding. But I think one of the legacies of that case is something we still see in 2020, right? That it’s sort of immediate branding of victims of police violence?
Jeffrey: Absolutely. Well, you know, of all the trials in this series, that’s the one I covered most closely.I was in the courtroom the whole time.And I’m interviewed in the documentary, and so I’m—I mean, this is one that is very close to my heart. And, I mean, if we can just go back to the issues of cameras in the courtroom, the Diallo case was a great advertisement—and I mean this sincerely—for cameras in the courtroom, because everybody thought going into that trial that, “Oh, they shot him 41 times. It was inexcusable.”
The police were—I mean, this was just a total outrage, indefensible, coldblooded murder. Well, what happened was people saw the officers testify, and they went through what happened that night point by point. And I—not only did the jury find the officers not guilty, the community was more sympathetic to what went on—not that they thought the verdict was necessarily the right one. And I’m not even sure I think the verdict—the officers were acquitted.
But you had a chance to see for yourself as a viewer that there was an explanation for what happened, that the officers were traumatized and horrified by what they had done. They did not set out to kill Amadou Diallo. They did not want this to happen. Now, that’s not necessarily to excuse them or to think that this was anything but an absolute tragedy. The fact that everyone got to see the verdict, see the testimony in the trial, I think was one of the reasons that the city reacted calmly to the verdict.
You know, a lot of people were worried that if there was an acquittal there’d be riots like in the Rodney King case in Los Angeles, where there were acquittals of police officers after the verdict in the state case.There were no riots here, in part I think because people saw the trial. And they saw that, once you got into the details, it was a lot more complicated than just 41 shots.
Rebecca: I mean, I found myself wondering—of course, you know, these police officers had great defense as well. And, you know, probably—and, again, of course I don’t think anybody woke up that morning thinking, “We’re going to shoot an unarmed young black man.”But that was the strategy. I mean, the lawyer talked about that being the strategy, is that they need to get up there, tell their story.
We even saw a TV analyst, not unlike yourself, saying after—you know, when the prosecution presented their case, “Here’s what needs to happen next. We need to see those cops crying. We need to see them feeling really bad. And if they do, that is the only way they can come out ahead.” So, yeah, I mean, it seemed real, but it also seemed strategically smart. Right?
Jeffrey: No question. And, you know, one of the issues raised by the whole series is, “How much of what goes on in courtrooms is a search for truth and how much is theater that is choreographed by the lawyers?” And that is, frankly, an interesting and in some cases a fun question to ask yourself. I mean, you know, on one extreme you have the Scrushy with this total phony-baloney civil rights activism of Richard Scrushy.
On the other hand, you have the testimony of the police officers in the Diallo case, which—you know, perhaps I’m wrong—struck me as sincere and heartfelt and truthful. But, again, one of the interesting things about the series is it lets viewers decide. And I’m sure other people will watch and come to different conclusions. But that fundamental question of what goes on in a courtroom is one that is really posed by virtually every one of these stories.
Rebecca: Well, Jeffrey Toobin, I have never quite seen a documentary from this point of view before, the intersection of media and high-profile cases. I loved it.I loved every episode. I loved every minute of every episode. I can’t thank you enough for talking to me about it and giving me your thoughts kind of under the hood of some of these stories. So thanks so much.
Jeffrey: Thanks, Rebecca.
[Music]
Rebecca: We’ve reached the end of this week’s episode. Thanks so much again to Jeffrey Toobin. Jeffrey is chief legal analyst at CNN and staff writer at The New Yorker. He’s also a prolific author of books on politics, true crime, and the Supreme Court. If you want to hear more of my takes on true crime and how we cover it on the media, check out my other podcast, Crime Writers On. Each week on that show, we break down true crime documentaries, podcasts, and the latest in pop culture.
And if you like You Can’t Make This Up, please subscribe to rate and review this show, and share it with your friends. Find us on Apple Podcasts, Stitcher, Google Play, Spotify, and wherever else you get your podcasts. And stay tuned for our next episode on the documentary, Jeffrey Epstein: Filthy Rich. You Can’t Make This Up is a production of Netflix. Our music is by Hansdale Hsu. I’m Rebecca Lavoie, and thanks so much for listening.