Cross: Tom Mesereau, Defending The Famous And Difficult
February 1, 2017 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindberg cross Los Angeles criminal defense lawyer, Thomas Mesereau, who successfully defense of Michael Jackson and won four federal jury trials in a row.
Q. You’re the son of a West Point officer who, after serving as an aide to General Douglas MacArthur, went into the family business, Mama Leone’s. That’s one odd combination, particularly in the 60s, a time of significant upheaval. Were you the crew-cut officer’s kid? The New York City restaurateur’s kid? You were clearly a smart kid, heading off to Cambridge when thw time came to leave the cannoli. Were you all “peace and love” as a youth, or the officer’s son, inured to hard work and high expectations? How did that shape your future plans?
A. In my opinion, we are all a combination of various influences, experiences, and expectations, good and bad. My life is no exception. My father grew up relatively poor and was an outstanding athlete and student in high school. He won a Congressional appointment to the United States Military Academy at West Point, where he was named to All-American football teams. He was a parachute battalion commander in the Philippines during WWII and the highest ranking member of his West Point class at the conclusion of the War. Dad and the late football legend, Vince Lombardi, were assistant football coaches together at West Point. My father could be brilliant, creative, magical, and effective.
My mother’s father, Gene Leone, was a poor Italian immigrant, who grew up in a New York slum, “Hell’s Kitchen.” His father died in this early thirties and his mother, who barely spoke English, had to raise 4 sons on her own. She began cooking meals in her home for friends, and it grew into one of the most famous restaurants in the world, “Mama Leone’s.” In fact, there is a book currently available which lists Mama Leone’s as one of the 10 Restaurants that changed America.
Grandpa was a bona fide genius in his field. He was a workaholic that reveled in the business. My father once commented that you couldn’t have a better restauranteur than my grandfather.
I was exposed to the realities of fame and fortune at an early age. I saw fame and fortune come and go. I saw the jealous and complicated lives that can result.
I was never going to be as good an athlete as my father, nor could I outshine him in many areas. The same applied to my relationship with my grandfather.
This caused no small amount of turmoil and confusion within me. Nevertheless, Dad and Grandpa gave me many gifts that allowed me to forge my own path.
Q. You went to Harvard for undergrad, where you studied government, boxed and played football. What was the plan going in? Did you know you wanted to be a lawyer? Was there a purpose behind it, to save the nation from injustice? After Harvard, and a master’s at London School of Economic, you were off to the left coast for law school. Why San Francisco, a fairly radical place in those days? Did you go to University of California’s Hastings College of Law with the intention of practicing criminal law? How well did a city boy blend into the mellow world of Haight-Ashbury? Was this where you belonged? Did you ever wonder why you didn’t stay closer to home?
A. My pre-college education was turbulent. Although we lived in an affluent part of Englewood, NJ, my parents sent me to a Catholic grammar school in a less affluent part of town. My parents were called in to confront my disciplinary indiscretions every year. Street fights were very common. I attended 4 high schools in 5 years, and endured numerous suspensions. Nevertheless, I learned that one can change their life very quickly with determination.
When I was admitted to Harvard, the Director of Admissions sent a personal letter to my parents telling them how impressed he was with me. I think my parents almost collapsed. A year before, after my third suspension from a Jesuit high school, they were unsure if the United States Marines would accept me!
I majored in government with a focus in International Relations. Following college, I worked for a United States Congressman who was on the Board of Directors at the United States Military Academy. I worked primarily on emergency fuel allocation legislation, which was a response to the Middle East oil embargo of 1973. I then attended the London School of Economics where I focused my Master’s Degree on International Relations.
In the meantime, my parents had moved to Laguna Beach, CA. I discovered that I could attend a state law school for $450 a semester. The head of the legal department at West Point was a great fan of Hastings College of the Law in San Francisco.
I left law school during my first semester to explore the possibility of being a foreign correspondent. Of course, at this point in my life, I realized that I was somewhat of a loner and a misfit, who liked to see things myself and not always rely on others for my information. Hastings gave me a 1 year leave of absence. After interviewing with numerous media outlets, I returned to finish law school.
My father had always recommended that I consider law school, particularly if I wasn’t sure what I wanted to do with my life. He was “spot on!” During my last semester, I took a trial practice class. The professor, a sitting San Francisco Superior Court Judge, told me I had special courtroom talents.
I fell in love with San Francisco the moment I arrived. Its spectacular beauty, diversity and tolerant air were infectious. I still get goose bumps when I travel to San Francisco.
Q. After law school, you did a stint writing speeches in Washington, D.C. What was that about? You then went left again, to work at the Orange County District Attorney’s office. Why prosecute? Was it just the job you got, or did you believe that you were going to save the world one perp at a time? While you weren’t really cut out to put people in jail, were you good at it? Did you appreciate the opportunity to exercise discretion that could help people? And there are, of course, bad dudes out there who deserve prosecution and punishment. Didn’t that make it more palatable?
Now that the Orange County District Attorney’s office is under enormous scrutiny for its handling of jailhouse snitches, Brady and perjury, not to mention the occasional beating of a defense lawyer, is this the same office you worked for? How could this office have gone so very wrong?
A. My first job was with a large national law firm in Washington, DC. I was an associate in the Public Utility Law section; we prepared and conducted administrative hearings and trials. I then returned to Sothern California and joined the Orange County District Attorney’s Office. I thought this would be a good opportunity to gain trial experience. However, I discovered I was too compassionate and empathetic to some of the individuals we prosecuted. I was determined to stay one year, and no more.
My first trial left a bad taste. I was asked to prosecute a young Latina girl for shoplifting. When she was first arrested, they had to put her on suicide watch. She had a long history of physical, emotional, sexual, and drug abuse. When brought to the police station, she immediately tried to sniff typewriter fluid. The case was a “slam dunk” that I thought should be resolved in a way which gave this poor soul treatment. Instead, I was forced to try it in front of a juvenile court judge. Following the automatic conviction, my colleagues came to my office to congratulate me and give me “high-fives.” I was totally disgusted.
There is no one I respect more than a highly ethical, professional prosecutor. Unfortunately, prosecutors suffer from the same human infirmities and weaknesses that others do. They need constant challenges to remind them that we are a nation of laws, not just privileged individuals. I am much more comfortable challenging authorities to ensure that those perceived as weak or less fortunate are not abused.
I am not involved in the current problems facing the Orange County’s DA’s office. Nevertheless, I am glad that certain courageous judges and individuals are challenging its apparent indiscretions.
Q. You weren’t long for the District Attorney’s office. But why criminal defense? Had you considered any other practice areas? Was it what you expected? And the obligatory first trial defense question: looking back now, do you cringe or are you filled with pride? What kind of case was it, and what would you do differently given the skills and experience you have today?
A. Prior to my focus on criminal defense, I was an associate with a large, national civil law firm; a prosecutor; Assistant to the President of a large corporate subsidiary; and a partner with a small mainly civil law firm. Everything interested me, at first. However, I always felt that having a passion for one’s work was a great blessing in life. My father and grandfather had passion for their chosen professions. I was determined to find such meaning and purpose in life as well. I had to come to grips with my compassion, dislike for elitism, and growing love for the courtroom. For 40 years, I have collected, read and re-read books by and about trial lawyers.
My desire for independence was also a factor. Of course, I like to see and do things for myself. I don’t fit into organizations very comfortably.
Q. Developing your practice, did you go through the usual hard work in the trenches, taking on the combination of retained, indigent, pro bono and the occasional unanticipated pro bono that most criminal defense lawyers enjoy? What about it got your juices flowing: the trial work, legal writing, dealing with the insanity that clients bring to your door, beating the prosecutor? Many young lawyers today seem to find criminal defense too frustrating or unpleasant, and struggle to go back into the well for another round of getting beaten to a pulp. Did that happen to you? What kept you going back day after day? Is this a matter of being tougher than the prosecution? If a lawyer feels vulnerable, does he belong in the trenches?
A. My trial skills were self-taught. No one took me into a courtroom and gave me good direction. Fortunately, I was able to read widely, observe other trial lawyers in action, and come to my conclusions about what was effective for me. I also consulted other lawyers who were very generous with their ideas and suggestions. I learned that our public defenders were extremely knowledgeable about what they do. They were always helpful.
Every trial lawyer must learn the fundamentals of trial practice and the philosophies behind them. But to excel one needs to learn when to break those rules and develop one’s own unique style. Along with the trial fundamentals, one also needs to learn who they are as a person and, conversely, who they are not. You can study other lawyers, but can never blindly copy them.
The late Johnny Cochran was the best trial lawyer I ever watched. His intellect, compassion, humility, flexibility and improvisation were breathtaking. Study carefully his closing argument in the O.J. Simpson case.
Every year, I read at least one book by or about the late criminal defense lawyer Clarence Darrow. Nobody combined intellect, psychology, emotion, compassion and kindness better than he.
By nature, I am repelled by arrogance towards others. It became clear to me at an early juncture that humility, decency and compassion are courtroom strengths. I also saw lawyers put on a tough front for clients which was very ineffective. Each case requires a different perspective and presents a unique chemistry. Trial practice is an art, not a science.
For many years, I volunteered at free legal clinics in the African American community. The time spent at these clinics was very satisfying for me. It also helped me to grow as a person and as a trial lawyer. The loner, journalistic bent in my personality took me to the Deep South to participate in death penalty trials. I wanted to see things for myself rather than rely on stereotypes and the opinions of others.
I feel fortunate to have found criminal defense in my life. While every day may not be a “picnic,” there are far more good ones than bad. My work spans both white collar and non-white collar cases. I have learned that doctors, business people, etc. can be targeted for inappropriate reasons as well as the poor. I believe non-white collar criminal defense helps one with white collar cases, and vice versa. The more cases you try with an open mind, the better you are likely to be.
My philosophy of trial practice strongly espouses the notion that we are always learning and growing in the courtroom. So many trial lawyers assume an air of arrogance, elitism, and a belief that they should be teaching, not learning. They are wrong.
You have to be yourself in the courtroom. Some trial lawyers are mild mannered, understated, and very effective. Some trial lawyers are theatrical, dramatic, flamboyant, and ineffective. I have studied, and continue to study, successful trial lawyers. But I would like to think that my fundamental style is my own.
Q. You’ve become one of the small cadre of Los Angeles criminal defense lawyers whom celebrities turn to when trouble finds them. But your first “big name” was Mike Tyson. What brought him to your door? Many young lawyers are desperate for that big name or big case. Are they too obsessed with fame? Is the big break the result of hard work, day after day, in the trenches for every client? Are young lawyers a little too hungry for their fifteen minutes? Are they ready?
A. I was contacted by a partner in a large law firm in Arizona who was counsel to Mike Tyson. Mike was being investigated by the San Bernardino County, California District Attorney’s Office for alleged rape. Gloria Allred had already given a press conference in support of the alleged victim. I was asked to be Mr. Tyson’s California counsel. We conducted an aggressive investigation and prepared a booklet for the District Attorney’s Office. It included background information on the accuser as well as forensic arguments. Although Mike had already served time in state prison for rape, the district attorney’s office declined to prosecute.
Mike Tyson was not the first celebrity I ever represented. I had defended others in large and small cases in Los Angeles. One that I am particularly proud of is my defense of Larry Carroll, a celebrity newscaster in Los Angeles. Larry was indicted for securities fraud by a state grand jury. After a 12 week trial, which included his testimony, the case was dismissed in the interest of justice. The trial judge concluded that Larry was a victim, not a perpetrator of an investment fraud scheme.
I understand why many lawyers want fame. They equate fame with legal success. However, fame can be fleeting and dangerous. It can also be a springboard to success. It depends on how it is handled. For example, many lawyers think a high profile case will never be forgotten. This is false. Other than the OJ Simpson Michael Jackson cases, they seem to fade quickly. I can speak all day about the pitfalls of fame.
Q. Most criminal defense lawyers have a piece of trial, such as voir dire or cross, that’s where they hit their stride. What’s yours? Is there a “most critical” skill that defense lawyers need to develop? Are there skills that just don’t matter that much? Beyond gaining experience, what did you do to reach that level of skill that allowed you to win four federal trials in a row?
A. Most lawyers don’t realize that humility, compassion, and decency are strengths. They put on a tough front for their clients who are desperate to be protected. Their egos and self-involvement create an obsession with their own work product, which in my opinion detracts from their objectivity. This affects everything from jury selection to closing argument.
A trial is an evolving, living organism. There has never been an experience quite like it before, and will never be one like it afterwards. It requires a unique combination of objectivity and passion. I have spontaneously scuttled weeks of preparation for a particular witness when the course of the trial dictated such. I believe more in listening, feeling, and observing a witness, than note taking. I try in my opening statement to immediately begin to portray my client as a living, breathing human being. If a trial lawyer is not a decent person, don’t expect them to make their client into one.
Because of my experiences in civil litigation and corporate law, white collar criminal defense has never posed any problem. I think trial lawyers who try both types of cases will likely be more skilled in both arenas.
Q. You represented Robert Blake, who was notorious for being a difficult client. While every criminal defense lawyer experiences the client who just won’t follow advice, how does that play out in a case where everyone is watching? Are celebrities harder to deal with? Do they take advice? When they don’t, or only half do, what are the consequences for their lawyer? Is there any magic to persuading people who are used to giving orders to heed a lawyer’s counsel? And when they don’t, how do you deal with it? At what point does a lawyer pull the plug and walk away from the case?
A. My attitude in every case is “I am the artist. I choose the paints and the brushes.” Again, this is a creative and human endeavor. It is not mechanical or scientific.
The creative process includes who appears at counsel table. For example, many corporate clients feel protected when a large number of big firm corporate lawyers surround them in the courtroom. I think this is counterproductive. It sends a terrible message to the jury who sometimes believe that a wealthy defendant is trying to buy justice. The defense team should be small.
Celebrities tend to have big egos. They are used to people catering to their whims and beliefs. They like to tell others what to do. To make matters worse, the people around them like to keep them insecure in order to create a need for them. In a high profile case, other lawyers will tell them what they want to hear to gain their confidence. It can be a very difficult situation.
I tell clients who I will work with. They don’t tell me.
Q. From a distance, few things look sexier to a lawyer than being the household legal name in a high-profile case. Is it really as much fun as it looks? While the first day or two may seem like fun, what about when the calls don’t stop coming, the interviews ask the same insipid questions over and over, the paparazzi won’t get off the hood of your car? What is the worst thing that happened to you as a result of being the “celebrity” lawyer? Have you learned to take it in stride? Does it make your head hurt, thinking about running the gauntlet to get into the courthouse?
A. Celebrity is a double-edged sword. The notoriety can be exciting and fun. It can also be fleeting and destructive. All kinds of characters come “out of the woodwork” to be your friend. They are not. Lawyers, in particular, are not immune to jealousy and envy. One has to be very careful not to get carried away with fame.
Fame also tempts the lawyer to think the focus is on the lawyer, rather than the client. This is wrong.
Q. Sorry, but there’s no way to interview you without bringing up Michael Jackson. You tried, and won, his case, much to the surprise of those smearing him along the way. But from the lawyer perspective, what distinguished you beyond your work at trial was that you handled the attention with enormous grace and dignity. With so many lawyers desperately trying to call attention to themselves, hoping to get that Larry King interview if not a show of their own, why were you unwilling to play the game?
You evoked the values of hard work and humility. What were you thinking? Young lawyers are told they have to toot their own horn or no one will, that shamelessness is the new rule. Is this the right message? Are the days of professionalism over, and it’s just about puffery? If Tom Mesereau were a young lawyer today, how would you bill yourself to survive in the current legal environment?
A. The Michael Jackson case was the highest profile case of my career. More accredited media covered the case than the OJ Simpson and Scott Peterson cases combined. It was a madhouse.
I did my best to take one day at a time. Following the acquittals, Mr. Berri Gordy, the founder of Motown, asked me how I had managed such an unmanageable situation. I told him that I would like to be able to say that I strategized everything. But this would not have been true. I hung by my finger nails each day. I did my best, and asked that God help me with the rest. I was fortunate.
Young lawyers are correct to believe that they must find a way to properly advertise and promote themselves. But it should be done with dignity and professionalism. I will expand on this in a Fault Lines post as soon as I can.