What You Don't Know About Russell Brand... — 2 Angry Men

[00:00:00] Speaker 1: Russell Brand at times showed up to his rape trial looking like a porn star with his shirt unbuttoned almost down to his belly button. And I can't believe his lawyer let him in court the [00:00:16] Speaker 2: way Russell Brand looked. Appearances matter. And I don't mean to say this in a denigrated way, but he looks rapey when he's accused of rapey. [00:00:28] Speaker 1: I've really been looking forward to this all week. We are going to talk about why Russell Brand was convicted, convicted of rape. And we're going to get into three things. One, his pattern of conduct. Two, the media attention in this case, which he said made a difference. And three, appearance, the way he dressed, what he carried into the court, and how that may have made an impact. But what we're dealing with are a couple of things. He was charged with three counts of rape, three counts of sexual assault, one count of attempted indecent assault against six women in total. He was found guilty on one count of rape, three counts of sexual assault. He was acquitted on the remaining counts. The judge said that he will sentence him on Monday, but made it very clear he is going to get significant, significant prison time. So in terms of, you know, what the, what the first [00:01:35] Speaker 2: kind of early canary in the coal mine is, if I'm not mistaken, he was remanded into custody, even saying or pleading with the idea that he wanted to go home and see his kids. [00:01:47] Speaker 1: Yeah, the judge said, Nope. So he talked, he's not going away. That means that's not 180 days or a year. No, he's going to get years. But he talked a lot about this when he made appearances and his Pierce Morgan appearance, I think is really revealing, especially as we get into his kind of pattern of [00:02:07] Speaker 3: conduct that came out in the trial. For some reason, I asked you halfway through, are you a more successful sexual predator now that you don't drink? And you replied, yes, but I resent the word predator. I like to think of myself as a conduit of natural forces. After all, the most natural thing in the world for people to do is ****, isn't it? People want to do it. So all you have to do is remove all the reasons why women don't actually go through with it, like pride and reputation. You just have to unpick the condition stopping women going [00:02:36] Speaker 1: straight to bed with you. Hmm. That sounds like charm, seduction, game. So Mark, this feels like he's almost saying, I know what the roadblocks are to having sex with a woman. And I know how to eliminate roadblocks, which is a really bizarre way of looking at sexual interactions. Well, you know, the word predator [00:03:06] Speaker 2: predator is when you look at somebody as prey. And when you talk about that, and he says, I object to the use of the word predator, and then immediately goes for a description, which looks like somebody who was trying to consider somebody a prey. That's why lawyers go so crazy when somebody is in the crosshairs, or is himself law enforcement prey. And they're making statements like that. And it's a it's a unforced air, [00:03:38] Speaker 1: so to speak. You know, and I agree with that. What he said, what came out on the stand was, look, this all occurred, all of the allegations and ultimately the convictions occurred between around 1999 and the early 2000s, when he was at the very height of his popularity of his celebrity in England. And the way it was kind of described in court is he had an M.O. that he would literally at times pick women, young women, out of the crowd that came to see him. And he would then flatter them. He would be charming with them. And then once he got them in close quarters, his personality would turn radically and he would become ominous. And what is interesting, and I think you've probably seen this in cases, is what they try and do, what prosecutors try and do is establish patterns. So, yeah, you may not believe this one woman standing alone, but listen to all of them talk and they're all coming up with the same pattern. [00:04:50] Speaker 2: Yeah, we you're right, because we frequently will say what you lack in the quality you make up for in quantity, meaning that the more people you throw into the mix, the more compelling it is or the more you get people to say, oh, the where there's smoke, there's fire and boy, this is a wildfire. One of the there's a couple of cross currents going on with Russell Brand. I mean, I used to listen to a friend of mine, a very good friend of mine, who I had a podcast with, Adam Carolla. And Adam used to say, why is there, he would make the observation about people who are accused of either sexual harassment or or prosecuted in these cases? Why are they not really good looking people? I mean, there's a lot of people who think Russell Brand is good looking and therefore these allegations don't seem to jive with somebody who is good looking. You [00:05:42] Speaker 1: have a post because because why? Because they could get women on their own without having to do any. [00:05:47] Speaker 2: Correct. I mean, it's a the kind of the poster child for that kind of thinking, so to speak, was Harvey and Harvey Weinstein, not Harvey Levin, but Harvey Weinstein and this idea that they were using the power dynamic, which is so popular when it comes to the experts in terms of explaining these things. But one of the other interesting things about this was this kind of subtext that it wasn't until he had flipped his political or his ideology, if you will, affiliation. And that's when all of these things got resurrected. Because when you take a look at the age of these allegations, I mean, some of them, they're old enough to vote when you talk about the age of the allegation. And there was this idea of was he being prosecuted? Was there a documentary? And the documentary is also an interesting subcurrent. [00:06:39] Speaker 1: Well, that's what triggered this. And the documentary, the BBC documentary was 2023. And that seems to be what triggered all of this. [00:06:48] Speaker 2: And that is a occurrence that happens all too often. But it's a double-edged sword. I have seen cases and I've personally handled cases where a documentary ends up being kind of very effective in getting somebody justice or getting some kind of attention on it. And then you have the opposite here, where a documentary can end up being the death knell for somebody in terms of being able to get a fair trial. But there's also the factor of this judge. And I don't know if you reported on the judge who was [00:07:23] Speaker 1: handling this case. Yeah, he was very stern. And, and, you know, he, he, that courtroom was all business. [00:07:32] Speaker 2: Well, except I think it was monkey business. And I'll explain why. One of the things that you want from a judge is not putting their finger on the skin, letting people try their case. I mean, that's the hallmark, at least in the US, and this was obviously in the UK, you don't, I would say as a shorthand, just stay out of my cross examination. Let me do my thing. You want to rule against me on everything else. Just stay out of my cross. The reports are that what was happening during the cross is that the judge was not only interrupting, but interrupting at key points where the defense would start to make some traction. The judge would see that and the judge would insinuate himself into the proceeding in such a way that he was telegraphing to the jury that he was making the credibility findings that the jury as the finders of fact should have been making. That is repulsive to me in terms of a judicial role. [00:08:30] Speaker 1: Except in this case, the jury spent more than eight hours. They acquitted Russell Brand on two of the three rape charges. So it's not as if they were simps for the judge. I mean, they went through the evidence and they were able to separate what they believed was, you know, guilt from acquittal. [00:08:54] Speaker 2: Except understand if you're a juror, if you have a complete collapse of the evidence. I mean, one of the things that just is mind boggling to me is that there was one woman who was, and I don't want to get too graphic here for the kids at home, but there was one woman who was talking about mouth to anus contact and then was talking about being anally penetrated. And then there was another where there was a grabbing of kind of a touching over the clothes yet was acquitted of the oral copulation. None of these things hang together unless you saw that there were jurors who were basically trying to find something, almost a stretch in trying to find guilt where it appears just at least from the cold hard record that this was consensual. [00:09:51] Speaker 1: Well, then they would then they would offend them. If that's their approach, they would have found him guilty on all three counts of rape and they didn't. [00:09:58] Speaker 2: You would think so. But how do you split it up? How do you say that? Oh, it was OK. That oral copulation was OK. That was consensual. But the touching was not. [00:10:09] Speaker 1: Well, let's get into the way the trial worked and with his argument that the media made it impossible for him to get a fair trial. I think this is actually really interesting because what you're saying is none of it made sense. Listen to this. The part of this police interview Russell Brand had said that he had been removed at some point before the anal rape and was now on the floor. [00:10:46] Speaker 4: Mr. Brand then told us to clean up the mess on the bed and he left the room. The male who had answered the door to her, then entered the room and told her she had to leave as Mr. Brand had to perform in another show that evening. She then left and was dropped off to Hampstead Tube by the same driver. What is your response to this allegation? I have nothing further to add at this time. [00:11:09] Speaker 1: OK. I mean, that is laying out some pretty graphic details. So, you know, I think you've got to cut these jurors a break in that it was a split verdict. But what about his point that, look, there was so much media attention in this case that it was impossible for him to win the day because of the documentaries because the police interview was broadcast and that he was a big celebrity and people knew about this going into the courtroom? Well, I can argue both sides of that because [00:11:49] Speaker 2: that I've argued for years that if you are a celebrity or somebody who's famous, as opposed to infamous, if you are famous, you do get your presumption of innocence. If you're infamous, you tend to get a presumption of guilt. It's very rare that somebody who's thought of, you know, the worst human in the world gets a presumption of innocence going into a trial, whereas somebody who is famous or beloved in quarters does get a presumption of innocence. And it obviously depends on who your jurors are. But if it's true that the judge is in the middle of cross and is saying on the record that he finds a witness to be credible, that you are cross-examining, that's a tipping of the scales. That's something, how do you get over that? And that tends to explain, depending on when the judge insinuates himself into the cross-examination, can you explain the split? [00:12:52] Speaker 1: Well, you know, the prime minister actually kind of weighed in on this. Prime Minister Andy Bunham said, and this is a quote, "It's not always the case that people know everything about people in public life." I mean, it's not hard to decode that, that what they're saying is that there was another side to somebody like Russell Brand who was considered funny and harmless and whatever. And for, you know, this to go all the way up to the prime minister, it actually reminds me way back in the day when Richard Nixon in the middle of the Manson trial said, "I think they're guilty." And it became front page news and the jury saw the headline and the whole thing. But the fact that this got to the level where the prime minister was commenting, I think is actually really interesting. [00:13:44] Speaker 2: It is interesting, but it also brings up, you know, when I've often heard judges who talk about or characterize the accused or defendants usually in sentencing and invoke kind of this Jekyll and Hyde, this, you know, well, on the face of it, they appear to be Jekyll, but really Hyde or vice versa. What that does, though, that is speaking of code, that's really code for, by all accounts, the people have lived a life that doesn't jive with what we are doing here. Now, that can be the case. Clearly, somebody like Ted Bundy, I can think of, you know, I can give you all kinds of examples where there is a disconnect. However, if the disconnect shouldn't, in my opinion, should not, and under the law, should not supply a lack of evidence. And you then go to the, what kind of outcry was there by the accusers in real time? Were there police reports in real time? Were there what are called fresh complaints to somebody that's a close friend or a family member? [00:14:58] Speaker 1: Yeah, but you could argue, you've got young women who are up against this huge celebrity. And, you know, I understand your point that the faster you go to the police, the harder it is to get out from under the credibility issue. But it is certainly possible for somebody that young dealing with somebody that famous, that they wouldn't necessarily do that. [00:15:22] Speaker 2: Yeah, but then what do you, then what is, it's interesting, as I sit here in New York and there is a, um, a legal battle going on right now as to these statutes, the look back, so-called look back statutes, where they reinvigorate, invigorate statutes of limitation that have expired. And the idea that somehow, I mean, it's always been in America, at least since, uh, in recent memory, where you could not reinvigorate statutes that were criminal, where you go to jail, you can't have a statute that expires and then reinvigorate the statute because of the, the kind of the temperature of the times. You have to have absent murder, I believe, and it's always been jurisprudence. You've got to have a statute of limitation because otherwise, how do you defend against these things? How do you, when it's he said, she said, and you've got the opportunity in real time, if there's a prompt accusation that's made to go gather, whether it's cell phone records. [00:16:24] Speaker 1: Well, I mean, yeah, I mean, it's true that he even said that there are things he just didn't recall because it was so long ago. But look, getting to this issue where he was really complaining that the media coverage made it impossible. He helped create that media coverage. This is from a BBC interview that he agreed to sit for and got very specific about issues that related to the very trial that he just endured. [00:16:53] Speaker 5: What about sex? Would you have called yourself a sex addict? Well, possibly not at the time, but I think in retrospect, it was pretty clear that I was using sex to medicate and to feel connected and to deal with that yearning and longing. So, yeah. [00:17:07] Speaker 1: I mean, the guy, the guy's doing interviews talking about that he was a sex addict and, and that, you know, it was his way of medicating. [00:17:18] Speaker 2: Yeah, but it's there, you know, the old expression, drug, sex and rock and roll. If you're going to now, or 40 years after the fact, 30 years after the fact, or 20 years after the fact, try to criminalize behavior that in real time, everybody thought was consensual, you've got a real problem. The vicissitudes of the culture are then going to drive whether somebody is a loss of liberty. It's a it's a very, it's a very dangerous kind of concept to introduce into the criminal law. I mean, there are still fights going on in civil. And, and look, one of the problems with that, take a look at what's happening in L.A. County. L.A. County had a look back statute civilly, meaning you could sue after the fact, municipalities, and there ended up being a $4 billion settlement in L.A. County against L.A. County. And that then, at least the investigation, indicated that there was some degree of fraud. And in fact, it was even built into the settlement. If you settle the case for under a certain amount of dollars, there was kind of no scrutiny to it, which was the only way they could deal with it. It's almost be careful what you wish for. We look at what's happening now with the Cornell 7, Cornell 6, or Cornell 4, whatever you want to call it. There is a real problem with these ideas of we're going to have pick and choose when we can have investigations, when we can say what, that this was a crime, or this was consensual, or it was not consensual, or we've got evolving consensual. One of the frustrations, if you're defending cases like this for me, is you put an expert, prosecution puts an expert on the stand. That expert, no matter what the accuser says, there isn't any, any reaction by an accuser that that expert can't hypothetically say falls within the proper reaction of a trauma survivor. That to me is a real problem. And then the other problem you've got is if you're going to start saying that the consent can be somewhat malleable, like in this instance, I touched a breast through the clothing, but that was not consensual. But then I later orally copulated him in the same encounter, and that was consensual, which by the way is what the jury found. Well then that, to me at least, and to other seasoned sexual assault prosecutors, that's a bridge too far. You do not have the ability at that point to make meaningful distinctions between somebody who's a real sexual predator, who may break into a house and rape people, or may jump people on the street and rape them. And then you're taking the slippery slope, so to speak, to where somebody is saying, I didn't really, I consented, but in retrospect it wasn't consent. That is that, that is not what traditional criminal law ideas of mens rea have [00:20:37] Speaker 1: ever heard continents. You know, one of the interesting things about this case to me was how it was and wasn't covered. That no cameras obviously in England, but there is a kind of rule of decorum, um, in these courts where, um, there were no theatrics. And I just keep thinking, you know, that if this were televised, this could have ended up looking kind of like Johnny Depp Amber Heard, and it gets, it gets tried on TikTok. In this case, um, that didn't happen. Um, there were, the social media didn't kind of control this case the way it did say in Amber Heard. And, you know, and part of this had to do with the fact that, you know, you weren't acting for anybody if you were on the stand. And I've seen that. I've seen that in the Amber Heard case. I've seen it in the OJ Simpson case. I've seen it in a lot of cases and with lawyers where, um, where there are cameras present or where lawyers can go down, talk in the courthouse steps. None of that happened here. And, you know, it was all business and the way social media was able to deal with it, it didn't, it didn't control the case. And, you know, it's interesting that maybe, maybe England has it more right than we do. [00:22:08] Speaker 2: So I've long argued, you and I have discussed this actually years ago, there, the model for, and we're on, um, a Fox owned, uh, entity right now. The brilliance of what Murdoch did was to take this UK model and bring it to the US. And that is kind of the history of it. But I've always argued that when you inject that into the US, you don't have the guardrails that you've got in the UK, which is called the contempt of court act and the contempt of court act. Traditionally, you could have all kinds of breathless coverage leading up to it. But once the trial started, it was kind of by definition, they damped it down. This is the first, the recent months or years is the first time that you're starting to see that social media has kind of jumped that, uh, institutional protect protection. And your comment is exactly kind of what I had noticed is that it was covered on and off, meaning it was covered because social media was covering it, but social media could not, the guardrails that they were traditionally used on the media did not work over on social media. So we've entered a new age. Well, at least in England, right. Yeah. At least in England. It's an, it's an interesting phenomena that what I always thought, and I've argued for years, even written law review articles about it, is this contempt of court act should be imported or at least somehow replicated in terms of a guardrail that's even eroded there. And so we've entered a new age. Does that mean that the only solution at this point is for every trial to have a sequester jury? Because that's the only solution that I've seen. [00:23:59] Speaker 1: And that's not going to happen. We know that. Right. And that can't happen kind of financially or and practically. Can we talk about appearance that Russell Brand at times showed up to his rape trial looking like a porn star with his shirt unbuttoned almost down to his belly button. And that may be Russell Brand's brand. But to do that, you know, I, I, I remember, I mean, to me, the gold standard, and I think you're going to agree, the gold standard of appearance in court is the Menendez brothers' first trial with Leslie Abramson, where she dressed them up in sweaters, made them look so wholesome that it was impossible to juxtapose what the jury was looking at with what they were accused of doing. And they got a hung jury in that case and they could have actually won that case. And I think some of that had to do with the way they looked and the way Russell Brand looked, I thought was insane. And I can't believe his lawyer let him in court the way Russell Brand looked. It's so funny. And just for anybody who's [00:25:20] Speaker 2: watching or listening to this, we did not discuss this beforehand. But when I watched the both the interviews, and the police interviews and the media interviews, my first thought was, was the lawyer, you know, under the influence at the time for allowing this to happen, right? Because I don't care what you say, appearances matter and matter greatly when you're in the crosshairs. And I'll give you another example. And you're absolutely right about the Menendez brothers. Somebody had, I won't mention the name, after Chris Brown and Rihanna. I will never forget that part of the, there was kind of the rehabilitation and it was, he was booked on to Larry King. And I will never forget walking into the green room. Oh God, the sweater, the blue sweater, the blue sweater. And I, without missing a beat, I said, [00:26:12] Speaker 6: why are we dressing him like Urkel and, and, and I, and it was okay, you can go overboard. You can be ridiculous, but what the heck are you doing? I see it so vividly still. It was electric blue. Electric blue with the bow tie. And I mean, to the, the last time I saw Chris, I still teased him about [00:26:38] Speaker 2: it. I mean, it was just the most insane kind of approach, but it matters. This all matters. Of course it matters. Anybody who says, oh, that doesn't matter or this or that people, people don't understand. One of the first people who understood that intuitively that I represented was Susan McDougall. I remember she used to wear, she, she actually understood what to wear at what point in a trial it ended up white and would go from dark to white. So those things at some level matter. We humans, we, we process information that way. And if you come in there looking and I don't mean to say this in a denigrated way, but he looks rapey when he's accused of rapey. I remember sitting in a, in the criminal courts building once. And I had a, and one of the questions I asked jurors is when you look at my client right now, do you automatically assume guilt? What is your thought? And I had a client who was wearing an outfit that I had objected to, but I couldn't get there. And the, and juror number one said, Mr. Garius, he looks like he's doing an audition for the Sopranos. And how do you, you know, that is something that you have to deal with. And you're just being naive. If you think that it doesn't affect people. [00:27:57] Speaker 1: Yeah, I agree. You know, I got to tell you, the other thing that really I thought, and, and maybe it's just my personal thing, but I recoil when I see it. He walks into court with a Bible that has, you know, dividers in it. And it felt so phony to me. Now, look, he may be religious. I don't know, but a guy who's walking in, you know, like John Travolta and Saturday night fever with a Bible and as if it's well-read and all of these markers are in there. It's like, do you think a jury is going to buy it? Or is the jury going to say, this guy is acting. And I think carrying Bibles into court. And I realized, I believe OJ Simpson did this at one point and, you know, he got off, but, um, I think it just backfires. It is not authentic. And I think people are hiding behind a Bible and I think it's terrible to do. Well, there's also a more fundamental problem. [00:29:01] Speaker 2: If it's not authentic, then it looks like you have something to repent for. And it's almost like, why are you just, why are you basically confessing? Why are you admitting something that you need to repent for unless it's authentic? And people, jurors are not stupid. I mean, the part of the beauty of the jury system is that you put 12 jurors together. And if they get the information, the way it's supposed to be delivered to them, that is true super intelligence. They, there has never been a jury trial that I have not heard something from the jurors afterwards that nobody had thought of. Because when you get 12 people together and then you lock them in a room, they tend to come, come to certain insights. And so if, if you don't think that they notice the shoes that are being worn, the suits that are being worn, the colors of that, they are super attentive to that. [00:29:59] Speaker 1: Absolutely. Do you think, um, in cases like this, um, British jurors are tougher than American jurors? [00:30:07] Speaker 2: I do. My, in my estimation, by no means I'm an expert on the UK, but on this case, on this kind of evidence, this seems, uh, this seems almost over the top. [00:30:19] Speaker 1: So you think they're tougher? [00:30:22] Speaker 2: Oh yeah. I mean, well, look, it's hard to make a sweeping generalization. I will tell you that a, a, a so-called case brought with these allegations in one jurisdiction today in the US, I could make a compelling argument that in certain jurisdictions, you'd have a much better chance than you would in other jurisdictions. Right. And it's, this is also, at least in the US now, these kinds of cases have become politicized. And that's a factor as well. And that's why I say jurisdictions matter, juries matter. It depends on where you are, how you select a jury, and then who your judge is and whether they interfere or not. He is going to get years in prison. I, I, I, I can, I think people should brace for the fact that this is going to be a sentence that is really harsh. I don't think when you get remaining, when you've been out, when you're talking about an age of a case that is years and years and years old, and no contemporaneous, uh, apparent, uh, complaints, and then you get convicted in a split verdict and the judge remands you, puts you into jail. That is not a good sign. That is, that, that means you're [00:31:41] Speaker 1: going in. Well, the judge as much as said it. Okay. We will see. I'll see you next week. Okay. Thanks, Harvey.