The Karol Markowicz Show: True Crime, Confessions & Justice with Randy Barnett
3/20/202626 mincomplete
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0:17Call 844 -844 -iHeart. Hi, and welcome back to the Carol Markowitz Show on iHeart
0:28Radio. My guest today is Randy Barnett.
0:31Randy is constitutional law professor at Georgetown Law and a former Cook County state's attorney
0:36in Chicago. His new book is called Felony Review, Tales of True Crime and Corruption
0:41in Chicago. Get it now wherever you buy your books.
0:45Hi, Randy. So nice to have you on.
0:47And you forgot to mention I was a part -time pirate on the high seas.
0:52For those listening on audio, Randy has an eyepatch on.
0:56He's looking really cool, though, as I told him.
1:00Randy, you're a very rare second -time guest on the Carol Markowitz Show.
1:06I'm very honored. I'm really happy to have you.
1:08And not just because your first episode here, I think, was my biggest episode last
1:12year. Yeah. You were very, very popular.
1:15The people loved you. So I'm really thrilled to have you back on.
1:20Love me, love my books.
1:22Right. As long as they're buying the books.
1:23That's all we're really looking for here.
1:25So I have started reading Felony Review, and I love it.
1:29I'm really not a true crime person, but I love your writing.
1:33I've always appreciated your work so much.
1:35And I could hear your voice as I'm reading it.
1:38And you have like this very kind of funny way of delivering even stories about
1:42a very grisly murder. The book opens with a grisly, terrible murder.
1:47And really what caught my attention about this murder was the pointlessness of it, that
1:53there was really no reason for this murder to have happened.
1:57It was some suburban kids trying to buy drugs, and they run into some gang
2:03members who don't have any drugs for them to buy, but then they pretend to
2:06be of a rival gang, and then they get basically tricked into following these gang
2:10members elsewhere and being killed.
2:12And the pointlessness of it, the destroyed lives, do you see a lot of that
2:16in Chicago? Yeah, elsewhere. All big cities are pretty much like this.
2:21I went to law school because I wanted to be a criminal lawyer.
2:25In fact, I wanted to be a lawyer because of a television show that came
2:28on in the 1960s called The Defenders, which starred E .G.
2:32Marshall and Robert Reed as a father -son criminal defense team in New York.
2:36It was very gritty, very realistic, filmed on location in New York, and it made
2:41me want to be a lawyer.
2:43And I stuck with that from that day, from being 10 years old into law
2:47school. Now, in law school, and I went to Harvard Law School, there's all these
2:51pressures or social pressures to go and do something like big law, law firms or
2:57clerk or other sorts of things.
2:59And my fellow classmates, when I told them what I wanted to do, which is
3:03basically be a county prosecutor, they said, well, that's noble, but don't you think you
3:08might be wasting your degree?
3:10Right. And I said, I didn't go to law school to do something I don't
3:13want to do. I went to law school to do what I do want to
3:15do. And I became a criminal lawyer, a prosecutor in particular, and it was better
3:19than anything on television. And in fact, I'm re -watching The Wire.
3:26I've never seen it. My brother is a huge fan, always tells me I should
3:29watch it. Yeah, I mean, another show I'm doing later today asked me, you know,
3:34where prosecutors have been accurately portrayed.
3:37And I remembered The Prosecutor on The Wire, and I went back and I sampled
3:40where she appears. And it just made me want to watch the show all over
3:44again, because that's a show that really captures for the first time what it's like
3:48to be in the criminal justice system.
3:50And I got to live it for four years.
3:52And this book is a compilation of all the experiences I had in four years.
3:56And as you know, Carol, it was very varied.
3:59It wasn't just being a trial lawyer.
4:01It was doing a lot of things, including the felony review unit.
4:04So maybe I should talk a little bit about what that unit is.
4:06Please, yeah. It's very unique to Chicago.
4:09It was implemented in the 70s.
4:13Basically, the Chicago police cannot file felony charges against any suspect until a state's attorney
4:20has approved those charges. And in order for that system to work, there had to
4:24be a special unit created of prosecutors called felony review.
4:29And they were full -time.
4:30When you're in that unit, you're full -time in that unit.
4:33You work a 12 -hour day shift for three days, 6 a .m.
4:37to 6 p .m. Or then you get three days off, and then you work
4:40a night shift, 6 p .m.
4:41to 6 a .m. And you have offices in the police area headquarters.
4:45You have a squad car.
4:46You respond to district police stations where the crime has happened and where there are
4:51witnesses to interview. You interview the cops.
4:53You interview the witnesses. And then, if possible, you interview the accused.
4:57And oftentimes, what that would result in is a confession.
5:01Really? Including the confession that starts off.
5:03Often confession? Why? How is that?
5:05Well, that's one of the things I do in the book, in addition to tell
5:08all these stories, is I also tell the lessons that I learned by being an
5:13observer of the system as well as a participant in it.
5:16And one of the things I observed was people confessing and wondering, you know, I
5:20was able to generalize kind of about why people confess or give statements to the
5:24police. even without being coerced, because like, why would anybody confess without being coerced?
5:31And I found there were at least three different motives that were operating.
5:35I'm giving away some of the choice parts of the book, but I'm happy to
5:38do that. So the book anyway, guys, by the book anyway.
5:42So the first reason is because they don't think they're confessing.
5:45This by far is the most predominant one.
5:47They think they're talking themselves out of the crime, but they're actually talking themselves into
5:51it. Like, for example, saying, yeah, I was there, but I didn't pull the trigger.
5:57I was there, but I was not part of the robbery.
5:59I was there. Well, as soon as you say I was there, you've eliminated witness
6:02identification problems. Now the person's there.
6:05Now we can go out and prove the rest of it.
6:07And in some cases, like in the cases of the King brothers, I prosecuted in
6:11two separate jury trials, the two brothers murdered, robbed and murdered the former cellmate of
6:17one of the brothers. And each brother gave a confession saying the other brother had
6:21done it. And it didn't matter.
6:23It did mean I had to try the case twice, once against each brother, but
6:27it didn't matter which one did the stabbing.
6:29They were both involved in the robbery and therefore both were guilty of murder.
6:33So these were confessions given as a way of exculpating himself.
6:37That's reason number one. So reason number two is like Juan Caballero in the beginning
6:43of the book, I think they're somewhat proud of what they did, or at least
6:46they feel like they did the right thing.
6:48And you'll remember from the end of that confession, after the confession was taken down
6:53by a court reporter and signed and sealed and by Juan himself, I turned to
6:57him and I asked him, Juan, if you had it to do all over again,
7:00would you do it again?
7:02And the reason I did that is because he's a 19 year old kid or
7:05very limited, very limited criminal history.
7:10Look, was a clean cut kid, very articulate.
7:12And I thought a defense lawyer was eventually going to put him up there and
7:16say, look, he got swept up in things.
7:17He's just innocent. He didn't really do anything.
7:19And so I put it to him, which if you had it to do all
7:22over again, would you do it again?
7:23And he said, if it was a sure thing.
7:26And I said, well, there ain't no such thing as a sure thing.
7:29And he said, well, a lot of kings have gotten, you know, have killed people
7:33without getting caught. By kings, he meant Latin kings.
7:36And I said, I know, but you got caught.
7:37Would you do it again?
7:38And he said, I'd have killed Michael for sure.
7:42I don't know about the other two.
7:44Michael were the one that was mouthing off and bragging.
7:48So he thought he'd done the right thing, even after having confessed.
7:53Now, the third reason was exemplified by the confession I took from Cesar Morin, who
7:58was a Colombian -born person who shot and killed a Korean liquor store owner and
8:06seriously wounded his wife. She eventually survived, became a witness.
8:12And at the end of my confession, at the end of the confession I took
8:15from him, a confession, I should say, where I forgot to give Miranda rights at
8:19the beginning of the confession and had to somehow fix that.
8:21You can read about how that happened and how I made that mistake and how
8:24we fixed it. But at the end of that confession, he said that, because it
8:29took a week before they apprehended him.
8:31And that actually will bring me to another thing about felony review.
8:34They arrested the wrong guy.
8:35And because of felony review, they had to let that guy go and find the
8:39right guy. So that's one of the things that felony review did.
8:42So he was at large for a week before I got caught.
8:45And he told me in his confession that he had not been sleeping well for
8:48a week. And I said, well, why weren't you sleeping well?
8:50And he said, I kept thinking about the man.
8:53I just kept picturing the man.
8:55The man that he had shot and killed.
8:56And I think he felt guilty.
8:58And his confession was to get it off his chest, to get sort of clarity.
9:05And it was a true confession like you do when you confess.
9:09And so that's the third major reason, I think, why people talk to the police.
9:13There's actually a fourth reason I don't mention in the book.
9:15And that is that juveniles, most of these serious criminals have juvenile records.
9:21And their experience in juvenile justice is that if they talk and they explain themselves,
9:26they're let go. But they're not let go because they explain themselves.
9:29They let go because they let everybody go.
9:32But if you don't talk, if they act like hardened criminals, then the juvenile justice
9:37system might go worse for them.
9:38They might say, well, this guy's really bad.
9:40We're going to have to treat him more seriously.
9:41So we train them to confess.
9:43Then they turn 18. They've now committed a crime as an adult.
9:47They don't realize the rules have all changed.
9:49And until the jail door snaps shut.
9:51Now, here's the people that hardly ever confess.
9:54Anyone who's done prison time and who has sat in a jail for years and
9:59thinking, what an idiot I was for talking to the police.
10:01I'll never make that mistake again.
10:03Those were the guys that were very hard to get to confess.
10:07We're going to take a quick break and be right back on the Carol Markowitz
10:10show. Run a business and not thinking about podcasting?
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10:40That's iHeartAdvertising .com. Do you tell, like, young people in your life, don't talk to
10:48police? I mean, like, I don't think my kids, you know, they're young, but, you
10:52know. unwilling. They're never involved in any crime.
10:54But I still say don't talk to police without a lawyer present.
10:57You should not talk to the police.
10:59It's very hard not to talk to police, but you should not talk to the
11:02police. And there's a lot of reasons.
11:03There's a very good book about this, why you shouldn't talk to the police.
11:06And I'm drawing a blank now on the name of the professor who wrote it.
11:10But maybe we can find it and put it in the show notes.
11:12And he has a great video, a famous, very viral video on YouTube about why
11:16you shouldn't talk to the police.
11:17But you shouldn't, I mean, if you want to protect yourself.
11:20Right. And there's lots of reasons for that.
11:22But that's really a different show.
11:23But let me just say something more about felony review and what good we did.
11:27It was like the original Innocence Project.
11:29We were there to make sure there was evidence that before charges were brought of
11:33guilt, we couldn't determine whether people are really guilty or really innocent.
11:38Sometimes we had a gut feeling, but our guts are unreliable.
11:41We were there to assess the evidence.
11:42And if the evidence wasn't there, our job was to say no.
11:46And the record, our approval rating was about 60%.
11:50We approved about 60 % of the charges we were asked for.
11:53And every week we turned in our logs, which I still have my copy of,
11:57which is how I was able to produce the book.
11:59We turn on our log books and they would compile what our approval rate was
12:04and keep us in the 60 % range.
12:07And so we rejected 40%.
12:08There were 40 % of the people, like the first person named Cesar that got
12:13erected and then turned out to be the wrong Cesar that went free as a
12:18result of felony review. I tell another story about a man who I actually, this
12:21is the one time I reported to a crime scene and the deceased, the victim
12:25was on the floor. Just like on the wire, the cops there looked at this
12:30young kid and this 20 -something prosecutor as I walked into the room and they
12:36looked up at me and they said, is it okay if we turn over the
12:38body now? And they were just pulling my chain, so to speak.
12:42But I said, yeah, sure.
12:43So they've turned over the body and then the poor woman's hand just clunked on
12:47my boot. It just landed on my boot.
12:49But I essentially, but I basically let the husband go free because after interviewing him
12:56and comparing his statement to the witnesses that we had in neighboring apartments, as well
13:01as the physical evidence, I decided that his story was plausible.
13:04In fact, probably true. And he wasn't guilty of murder.
13:07And the difference between, I won't spoil it anymore to say, the difference between being
13:11charged with murder and not is that the victim, his wife, had one stab wound
13:17in the chest and not two.
13:19If she'd had two, probably would have been murder because it was one, it was
13:25not murder at all. But felony review saved him the price of having a lawyer,
13:29having to go through the system just because we were there.
13:32So I see you as this constitutional law guy.
13:36And yet you have this prosecutor felony review background.
13:41You know, here's the book.
13:42How do you end up there?
13:44What led you to love this and to want to do that after going to
13:48Harvard Law School? Well, as I say, it was the TV show, The Defenders.
13:53And the theme of the book is that being a criminal lawyer is better than
13:56TV. And I try to make that argument throughout the book.
13:59And at the end, actually, I include a letter that I wrote when Hill Street
14:02Blues came out, which was at that point, state of the art in terms of
14:06realism, but The Wire puts it to shame.
14:08But that was state of the art, original realism.
14:13I wrote a letter to Bochko and Kozel, who were the showrunners, and a copy
14:19of it to Grant Tinker, who was the president of MTM, Mary Tyler Moore's husband,
14:24about how prosecutors had been misportrayed in popular culture, in fiction and on television for
14:32years and years. And it was an eight -page, single -space, lengthy analysis of how
14:37prosecutors had been portrayed. And because, you know, I thought, and I was trying to
14:43sell them on the concept that reality is more interesting than what they show us
14:47on TV. And The Wire is actually kind of proof of concept.
14:51There's a reason why that show is a classic, because it does actually depict what
14:57it's like. I mean, I have to say, I watched three episodes last night, and
15:01I felt like I was back in Cook County.
15:03Only it was Baltimore. Do you see a TV show or doing something of that
15:08in your future? You seem really into that.
15:10Well, it would be wonderful if a studio picked up Felony Review and made a
15:14show out of it. But I did play a prosecutor.
15:17You should call Daily Wire.
15:19You call him. They do this kind of stuff.
15:20Yeah, all right. You call Ben, or whoever it is.
15:23Now, Jeremy's not doing it anymore, but call Ben.
15:25So I actually, I did portray a prosecutor in a feature film called Inalienable.
15:31And that was wonderful. It was a wonderful experience.
15:35You can watch it on YouTube for free.
15:37Look up, just Google, just go on YouTube and go Inalienable the movie, and the
15:40movie will pop up. It's a science fiction movie, but the last third of the
15:44movie is a courtroom drama.
15:45And I play the assistant to the prosecutor whose name, who was played by Marina
15:50Sirtis, who played counselor Deanna Troy on Star Trek Next Generation.
15:54It was written by Walter Koenig, who was Chekhov on the original Star Trek.
15:58And I had four wonderful days on a standing courtroom set in L .A., which
16:02the courtroom set was so realistic, I really felt like I was back in the
16:06Cook County State's Attorney's Office as I was portraying prosecutor.
16:09And then when I came off the set, a lot of the actors and other
16:12people who are crewmen, crew who are watching it on the video village, which are
16:16the video array that takes place off the set, they came up to me, they
16:19said, boy, boy. you really look like a prosecutor in there.
16:23And I said, well, I was one.
16:26So how do you go from felony review to being a constitutional law professor?
16:31What's the path? Okay. Well, there's a through line.
16:34And the through line is that the reason why the defenders appealed to me at
16:38the age of 10 is because it turns out that my overriding commitment is to
16:43the idea of justice, seeing that justice is done.
16:46And then it turned out, I thought, wow, there's a profession in which your job
16:49is to see that justice is done.
16:51And that's one of the reasons I became a prosecutor instead of a defense attorney,
16:54a defense attorney whose role is absolutely essential.
16:56We have to have good defense attorneys or our system doesn't work.
17:01Their obligation is to do justice, to zealously defend the interest of their client.
17:07Whereas a prosecutor's obligation is to do justice, make sure the just outcome is achieved.
17:13And I felt a lot more comfortable in that capacity than even as a defense
17:18attorney. But then I went to college and I discovered there's a subject called philosophy.
17:24And in philosophy, there's a subject called ethics and politics.
17:29And they're all about what justice is.
17:30Well, where I grew up in Calumet City, Illinois, I never heard of philosophy.
17:34I didn't know there was a whole discipline about that.
17:36And I was actually tempted to not go to law school and be a philosophy
17:39professor instead. But for various reasons, I stuck with plan A.
17:43As my daughter likes to say, were you going to go work at the philosophy
17:46factory they built in your town?
17:48Well, that's what a law school is.
17:50A law school is the philosophy factory where our job is to train students to
17:55go into the justice system and see the justice is done.
17:57And also as a law professor and as a constitutional law professor, I can approach
18:03the subject more systematically, systemically.
18:06So as a prosecutor, I couldn't change the system.
18:09All I could try to see is justice is done case by case.
18:12As a law professor, I can try to change the system.
18:14And that's the reason why I switched or segued to this other field.
18:19What are you most proud of in your life?
18:23Kind of had a lot of paths here.
18:25I'm proud of my kids and my grandkids.
18:28That's what I'm most proud of.
18:29I've got two great kids.
18:30They're both very successful. I won't go on and on about all their accomplishments.
18:35And I have six grandchildren.
18:36The most recent grandchild was born about two weeks ago.
18:39Oh, wow. Congratulations. And I'm really proud of my kids.
18:43They found great spouses as well.
18:46And so that's what I'm most proud of.
18:49Secondly, most proud of, it would be my writing about politics and justice.
18:55The structure of liberty was my first monograph.
18:58The subtitle, Justice and the Rule of Law.
19:01And Restoring the Lost Constitution, Our Republican Constitution.
19:04My last memoir, which I was on your show to talk about, A Life for
19:09Liberty, the making of an American originalist, being participating in the growth of originalism, developing
19:15the theory of originalism to make it the theory so robust, it's the theory to
19:19beat in academia. Right. And now I decided to reflect upon my time as a
19:25prosecutor, which is unforgettable to me.
19:27And I had a lot of fun writing the book.
19:29It was actually a lot of fun.
19:30You seem like you're having fun in this book.
19:33Not that I didn't think A Life of Liberty, that you were having fun there,
19:37too. You have a very playful kind of way about you.
19:41But I think in felony review, you're telling the story of, again, some really terrible
19:46things that happened, but with a lightness that really is part of your personality.
19:51And the other thing that I hope, you know, your reader, I mean, I should
19:54recommend to your readers, and that is, and you'll attest in both books, the books
19:58consist of very short vignettes.
20:01I mean, there aren't very, it's not long drawn out stories.
20:03You can read a five page, 10 page chapter in a few, you know, a
20:08few minutes and wait and come back to it.
20:10So it is told in little bite -sized chunks, which makes it easier to digest,
20:14I think. I love that.
20:16It's a really well done book.
20:19I'm going to recommend it to all of my true crime loving friends.
20:22I think they're going to enjoy that.
20:24We're going to take a quick break and be right back on The Carol Markowitz
20:27Show. Only iHeart can extend your message to audiences across broadcast radio.
20:49Think podcasting can help your business?
20:51Think iHeart. Streaming, radio, and podcasting.
20:54Let us show you at iHeartAdvertising .com.
20:57That's iHeartAdvertising .com. Give us a five -year -out prediction, and it could be about
21:04anything. It could be about the justice system, or it could be about art or
21:07music or anything at all.
21:09God, I'm going to make a wild, I'm going to make a prediction that I
21:12probably would never have made until about two weeks ago, and that is peace in
21:17the Middle East. Wow. I think we are actually, we have a path now forward.
21:22If we can pull it off, and there's no telling whether we will, there's a
21:26lot of people who are opposed to peace in the Middle East.
21:28Right. But if we can pull it off, what the United States is now doing
21:32with Israel in Iran promises a completely new Middle East.
21:37I mean, there's sort of like an old joke where, what are you going to
21:41do, you know, propose peace in the Middle East is though that you can never
21:45do that. I think we actually are on the verge of doing it five years.
21:48Now, we could have a absolutely transformed Middle East in which Arab and Jew are,
21:54you know, sort of shoulder to shoulder, each doing, you know, each going on tourist
21:59destination rides, you know, in each other's countries, doing a lot of commerce together, doing
22:04a lot of security together.
22:06All we have to do is remove this anchor from both Arab and Jew, from
22:12both, I don't know if it's Arab, I mean, we have the poor Persians in
22:16Iran are not Arabs, but we should say Muslim and Jews.
22:21Remove this cancer, which is not the Persian people, it's not the Iranian people.
22:26It is the government that they've been suppressed by since 1979 and who has been
22:32at war with the United States since 1979 and continues to declare its war against
22:37us in the Quorum of Death to America.
22:39If we can do what the president is now attempting to do, we have very
22:45strong reason to believe, the Rubin Accords gives us very strong reason to believe that
22:50there could be peace in the Middle East.
22:51Remember, all the countries besides Israel that Iran fired rockets at are all Formula One
22:57tournament countries. They all have Formula One speedways.
23:04Countries with Formula One speedways, I don't think, are countries that we have to worry
23:08too much about. Interesting. That's like the old McDonald's thing.
23:11If a country has McDonald's, it's probably not going to be war -torn.
23:15Well, it turns out that's less true than we hoped it would be.
23:19But Formula One. Formula One, that's a big investment, you know?
23:23Yeah, for sure. Yeah, much bigger than McDonald's.
23:25But I love that, and I love that you're optimistic.
23:28I, you know, I have my ups and downs on that.
23:31I don't want to go so far as to say I'm optimistic.
23:34A piece in the Middle East in five years is pretty optimistic, Randy.
23:37Optimism or pessimism are kind of irrational.
23:40I'm hopeful about the future.
23:41I'm always hopeful. I'm a glass half full instead of a glass half empty guy.
23:45That defines me more than optimism or pessimism does.
23:48I love that. Well, the one question that I ask all my guests that has
23:52stayed the same for the three years of the Carol Markowitz show so far is
23:56to leave us here with a tip from my listeners on how they can improve
24:00their lives. Do you remember what you said last time?
24:02I bet you. I only, I think I do.
24:05And I'm going to say the same thing.
24:07All right. Yeah, do it.
24:09Live your life as though you're going to write a memoir about it.
24:11That's what you said. Why would that be?
24:14Why is that? Because if you think about now, you know, I'm 74.
24:19I, you know, I've made most of my choices.
24:21I've made I've done most of my deeds.
24:23And now that I wrote a memoir, I when I look back, I want to
24:26be proud of what I did.
24:27I want to be able to put it all in the book instead of, oh,
24:29gosh, you know, there's a mistake.
24:31Here's another mistake. I did put the mistakes I've made in the book.
24:34You know, my professional mistakes anyway, not all my personal mistakes.
24:38But if you live your life as though you're going to write about it one
24:41day, that will be a way of getting yourself to make better choices.
24:45Will I be proud of this moment?
24:47No matter how it turns out, will I be proud of the choice that I
24:50made today or will I regret it?
24:52Will I be sort of like, well, ashamed of it?
24:54I really don't want anybody to know.
24:56Live your life as though you're going to write a memoir.
24:58You'll live a much happier life.
25:01And then secondly, then write the memoir.
25:03Even if only for your kids and your grandkids, your descendants, wouldn't I love to
25:07read a memoir done by my great grandfather, Harris Barnett, who enlisted in the Army
25:12at the age of U .S.
25:14Army at the age of 18, having immigrated from Russia and enlisted in the Army
25:19a week after the Little Bighorn and was discharged honorably in the Montana Territory, which
25:25means he fought in the Indian War before returning to Chicago, my hometown, to raise
25:29his family. Wouldn't I love to have a memoir by Harris Barnett?
25:33But I don't have one.
25:34So write a memoir for you and your kids and your descendants.
25:37I love that so much.
25:38And I'm going to make everybody I know write a memoir.
25:40He is Randy Barnett. His book is called Felony Review.
25:43Please buy his book anywhere you buy books.
25:45It's really so excellent. Thank you so much for coming on, Randy.
25:48Love to have you on.
25:49I'll see you on the high seas.
25:52This is an iHeart Podcast.
25:55Guaranteed human.