The Limits of Manifesting Success with James Forman, Jr.

Guaranteed human. (upbeat music) Pushkin.

Hey everybody, it's Jake here.

“I hope you enjoyed this season of Deep Cover, The Family Man.”

As so often happens when I'm working on a story like this, there are questions that have stuck with me. Things we couldn't unpack in detail during the course of the series. A lot of those have to do with the legal proceedings

that Keith Giamanko faced after his arrest in 2008. Like how did his tearful and immediate confession affect his prospects and the courts? And speaking of the courts, why was he prosecuted twice

at the federal and then the state level? Why couldn't Keith and his lawyers get on the same page about their trial strategy? And of course, the biggest lingering question for me

was the sentence that Keith received really necessary.

So I sat down with my friend, James Forman Jr. to talk it all through. James is a professor at the Yale Law School and won the Pulitzer Prize for his book on mass incarceration.

Here's our conversation.

“I kind of want to start at the beginning”

of Keith's interaction with law enforcement. So he gets arrested after the 12th bank that he robes. This detective who's been looking for him, John Bradley, ends up going with him into an interrogation room with another detective.

And Keith does not ask for a lawyer and he immediately confesses to what he's done. He said that he was just tired of all the deceit

and he just felt this overpowering urge

to come clean. And I have to wonder there, how things might have gone differently if he had asked for a lawyer? If you James Forman show up and are called in

as the public defender in this moment, what advice would you have given to Keith before he said a word to the police? And do you think that might have made any difference in terms of the leverage that he might have had

for making a better deal? - Yeah, it's a really important question. I mean, the advice that I would give him and that any lawyer would give him is not to talk. Because you don't know at the early stages of the case

what the government's evidence is. And so you don't want to provide the government more evidence and you don't want to say anything that would be inconsistent with the evidence that the government is gonna be able to have

and they can use that and try to say, oh, you relying, you relying, now you're lying on the stand. And so I would have advised him not to talk. In terms of your other question,

what difference would it have made? In this case, I don't think it would have made really any difference at all, but that's only because of how strong the government's case was.

“They have eyewitnesses, I believe they call tellers”

from every single one of the banks or they could have called tellers from every single one of the banks. They had people who were prepared to testify. They have physical evidence.

So there's some funds that could be traced back to that bank that were given to Keith, which he then had in his car when he was stopped not far from the scene. And there's a confession.

Right, so if you're the prosecutor in this kind of case, you're salivating because you can't lose. And if you're the defense lawyer in this case, you're trying to figure out, well, what kind of plea offer can we get?

Because if you take this case to trial as a defense lawyer, it's what we call a slow guilty plea. You can either plead guilty officially in like 15 minutes at a formal guilty plea or you can take a case to trial that cannot be won,

which is going to be a guilty plea. It's just gonna take three or four days before the guilty plea comes in the form of a jury verdict. And so this case was unwinnable. And it was even more unwinnable at the state level

because on top of all the things we talked about, you have a federal conviction. So he's already played guilty in federal court and the fact that he had played guilty to these crimes in federal court can be

and was introduced in the state trial. So it's overwhelming.

with this mountain of evidence. Well, so what do you, if you walk into the situation in your Keith's lawyer, what are you telling him is his best case scenario or the strategy that he should be pursuing to get, you know,

the light of sentence he can? The only strategy here that I see is a strategy of mitigation, a strategy in which you go to the prosecutor and you basically are asking for mercy but it's mercy based on something.

So you are telling the prosecutor the story in some ways the story that comes out over the course of the podcast and in some ways the story that he tried to tell in the sentencing phase at the state trial, right?

“Which is, how did it come to be that this person did this thing?”

Is this person who did this thing the kind of person who is just born to commit crimes and rob banks

and will always do it or was it situational?

Were there things that happened in his life? Trauma's other events, crises that put him into a place where he did a thing that was really not his character and who are the other people in his life that will be harmed and hurt by his being incarcerated?

All those things are part of the package that you put together to the prosecutor to get them to see that this is a case of somebody who is not a lifetime career criminal. It's a case of somebody who made a terrible decision

and you try to get them to see the robberies together as one decision and that's hard. But this is what you argue and to go back to your point about the confession, that's where you introduce the confession.

So the one way in which the confession helped him

“is that you can say as soon as he was confronted,”

he told the truth, well, that's interesting. I hadn't thought about that, that it actually could play in his favor because it showed maybe that he was on the path to rehabilitation or redemption

or whatever you want to call it from the moment that he was caught. Yeah, you said to the prosecutor, look, if your concern is that this is some sort of career criminal who is just going to live

his life or the rest of his life, trying to get over, trying to lie, trying to deceive, trying to harm, trying to steal, you know that kind of person and that person does not confess

and they do not confess right away.

They do not in the first moment

that they have the opportunity to come clean in the way that he did, right? In that authentic way where he says it, he was sorry. Yeah, I mean, he breaks down. You can hear him weeping in the confession.

Yeah, so you, you would make that argument to a Bob McCollock. I mean, again, it might not work, but this is what you have to do. All right, well, I feel like we have to jump into this issue,

which was like, in this case, you're not dealing with one prosecutor but two or two prosecutions, I should say. The one that comes first is the federal prosecution and then it ends up as we know,

going to trial on the state level because there's a state prosecution as well. And there's a lot to kind of unpack there.

But I think the first question that I have

is just simply how, because we'll, you know, we grow up learning in the constitution that you can't be prosecuted twice for the same crime or set of actions

“and it seems like that's what's going on here.”

So, how is that possible? Now, you're right, that is people's intuition and the way that it's possible is this idea that we have these two governments, right? It's called dual sovereignty, but two governments is the idea.

We have a state government and we have a federal government. And both of them is entitled to pass laws and has pass laws making various kinds of conduct criminal. And one of the things that is covered by both is bank robberies.

And as a result, both of those entities, the state of Missouri through the St. Louis County Prosecutor and the federal government through the United States Attorney's Office in Missouri has the authority to bring charges, federal prosecutors in federal court,

state prosecutors in state court. And that's pretty well established and has been that way for a while. It's both well established and it's also in some circumstances vigorously defended by people who would otherwise be

the kind of people that are kind of sympathetic to the idea that, you know, we have too much punishment in this society and we have too many prosecutions and our prison sentences are too many, but that. Well, civil rights violations are the classic example

So the most famous one in our lifetime is Rodney King.

“So Rodney King is driving his car in Los Angeles.”

He's pulled over. He's beaten without mercy by the LA police department. And it traumatized the country, it traumatized me. I was a law student and then the further trauma was, when the officers who beat him were brought to trial

in the state system, they were acquitted. All four of them were acquitted. And then the federal government stepped in because they had that's the dual sovereign. That's a dual sovereign.

And we also have the right to bring up charges on these officers. That's right. That's in conviction and celebrated. Yeah.

So that's double those officers could have the same reaction. They could also, then Keith said, well, this is not fair. We were already acquitted. So there's this idea. It's more than idea.

“There's this strong kind of legal precedent or tradition”

that both the federal government and the state have their own set of laws and their own sovereignty over an area. And if you break those laws, either set of those laws, they can both come after you. That's right.

Now, as Keith thinks about mounting his defense, it seems to me that he has a more complicated challenge than many defendants in that he's not balancing one prosecution, but two prosecutions. It, you know, you're talking about making an argument

to prosecutors in which he sets up these mitigating circumstances, hey, cut me a break. And that, in some ways, is banking on having a sympathetic ear or, you know, some sort of compromising spirit from the prosecutor.

Now, we're talking about doing that with two separate prosecutors. And I'm wondering, how do you do that? Because that seems like that could be quite a challenge as a defense criminal defense lawyer.

Well, the first thing you try to do is figure out

which of these prosecutors is likely to be looking for more time. And that can be based on your assessment of how punitive that office is, right? What are the kinds of sentences that they tend to look for

in cases like this? I'm not a lawyer in Missouri. So I didn't know until I listened to this podcast, what the sentencing guidelines were. And, but if I trust me, if I was a practicing lawyer

in St. Louis, I would know those things. And I would know that I had a prosecutor like Bob McCollot, who is well-known for trying to get publicity

“and it has well-known well-established punitive instincts, right?”

A long ball hitter, somebody that likes to get long sentences. So you know that, going into it. So in this case, that would mean that you'd be going

to the state first likely to try to get a plea agreement

in which the federal government agrees not to bring charges, charges that they could bring as part of this kind of global resolution. And what you're saying is, we want to resolve all of them in one plea agreement.

Like this one plea agreement is going to take care of everything, right? So kind of what the heck? We were able to interview Keith's lawyers because one of them had passed away

and one of them hadn't talked to us. Keith says, and we'll have Keith's version of this, that they said that they had told him that maybe the state would drop the charges. That seems unlikely to me, given what we know about Bob McCollot.

Why is the federal case played out first while the state is unresolved? I've been asking you this since you presented this case to me. And I don't know. I know the judge was interested in this question.

Yeah, because it comes up when he's actually entering the plea and federal court, the judge actually says, hey, what's the deal with the state prosecution? Has this been worked out? And the defense counsel basically says,

hey, we're still working on that. Which I remember we talked about this. And you said you found that surprising that that hadn't been worked out at that point.

Yeah, again, I never want to label,

I don't want to label somebody substandard or incompetent from a distance without knowing all the ins and outs of the practice. But I can tell you that where I practiced, and as I was a lawyer, I would never stand up and say,

oh, we're going to enter the plea here. We haven't worked out what's happening in state court, especially when you know that the exposure, the likely sentence in state court is going to be greater.

under those circumstances. (gentle music) We're going to take a quick break. And when we come back, I ask James about the media battle around this case.

He tells me, while a lawyer never tries to manifest success.

(gentle music) So I want to talk about Obama call out for a second.

“He's a prosecutor who's an elected official, right?”

Yes. So very few countries in the world elect their local prosecutors, but the United States is one. And it's a version, yes. Huh, I didn't know that.

Yeah, and it's one of the reasons why a lot of people suggest have argued. And I agree, part of why our system became so punitive, especially in the '70s, '80s and '90s, is that we had people running for office

on the idea that I'm going to lock up more people than the other guy or girl, but most of the guy. I'm going to lock up more people. I'm going to have them in for longer. I'm going to have them in worse conditions.

And so it became this kind of race to ever more punitiveness, ever longer sentences. The only way you'd ever get defeated as a prosecutor, as a salvaged prosecutor, is if your opponent could point to some case

where you didn't get the longest possible sentence in the public is outraged. And so there's a dynamic here where public sentiment, which is typically very anti-crime and wanting more punishment, leads to a dynamic

where all of these county prosecutors, all over the country, get more and more and more punitive. - So he's, Maccola is part of this uniquely American phenomenon, where you get votes if you can prove yourself to be a tough, uncrime prosecutor,

which is what Maccola presents himself as. So I mean, I wondered what extent the notoriety around this case actually works against Keith. And this is interesting for the following reason. After Keith is arrested, he approaches his daughters

and basically says there's an opportunity

to go on good morning America.

“I think it could help build some sympathy for us.”

The girls agreed to it. But I wonder if this ended up actually hurting Keith because this helps make it a national story and actually put his case more on the radar of someone like Bob Maccola.

- Yeah, I think that's right. So think about it like this, or here's one way into thinking about this question of the defense attorneys and the media. I was a training director for a year

at the Public Defender Office in DC. And we had a two-month training program at the office. And typically on a Friday afternoon during the end of the end of training, on the syllabus, it would say media training.

And they would come in the new lawyers were being trained and would come in two or three o'clock on a Friday. And I would say, okay, we're gonna do the media training today. And then on the board, you pull across the curtain and it says no comment.

And then I would tell them, all right, go and go watch a movie, go enjoy your weekend. - Come on. - Yeah, because that is the media training that we were provided in my office.

- Those are the two words that you say, no comment. Now that's extreme, my office was extreme. But what was the principle behind the thinking? It was this, it was exactly what you're talking about. It was that the attempt to win the media battle

was never going to be in your favor.

Or it was almost never gonna be in your favor. And you wouldn't know the cases where it was gonna be in your favor. And so you might sacrifice clients by thinking that you were gonna win the media battle.

Because if you're effective, the only thing you're gonna do is piss off the prosecutor. Who's like, why are you taking this case to the media? And so if you have a claim for mitigation,

“if you want to kind of get that sympathy,”

if you wanna make the case that Keith and his daughters were trying to make that there was a reason behind these actions that he wasn't a career criminal, you should have sympathy for him. The three places to make that are number one

and number three in front of the judge. And you hope that you're successful with the prosecutor's office,

so you never get to the jury.

Got it. And then if you succeed in front of the jury, you get an acquittal and you never get to the judge for sentencing, but your last stop is the judge. But it's never pretrial.

It's never when Keith and his daughters tried to do it. - Yeah, there's another interesting thing about that is that in that scenario, it is your lawyer, your advocate who is making the presentation of the story that is whatever mitigation is,

that this guy was a good dad. He was in a desperate situation, like there was a narrative there. When you go to the press, when you go to Good Morning America, you're rolling the dice, you have no idea whether,

in fact you're even going to be making a story that makes anyone care about you. - Yeah, I mean, guess what the media is not, your friend. - Yeah. - And so...

- Yes, as the journalist.

- But yeah, no, I mean no offense. - No offense, but the reason why we give this training and the reason why when I was a lawyer receive this training is that your agenda is not their agenda. - Yeah.

- Your agenda is defending and representing your client to the utmost. Their agenda is creating a story that will be of interest of viewers. - Yes.

- There's occasional moments where that might align. - Yes. - But mostly it won't. And you can't also sell out those many clients where it doesn't align for those few one or two

where maybe it does. - Yeah. - It's interesting too. The risk is it either irritates the prosecutor or even just calls attention to your story

in a way that it's not going to help you. - Yeah, right, because they're going to be a little bit, they're going to be a little bit offended, maybe. But at a minimum, as you said, it's now called their attention.

They're like, well, let me focus on this. Maybe they get somebody more senior to take over the case.

“And that's why, by the way, if you pay attention,”

95% of cases you'll see defense attorney declined to comment. - Yeah. - Or defense attorney said, my client Keith is innocent and he looks forward to his day in court.

- Yeah, I've never had an all my years of reporting.

I've never had a defense attorney give me an interview all a case was pending. The only time I was ever actually I interviewed a defendant in that circumstances was when he ignored his lawyer's advice.

At the opening of the trial, Keith and his, this I also haven't seen. I don't know if you've seen this. The judge basically says, are you ready for trial? His defense lawyer says, yes, your honor.

And Keith says, no, we're not. And then he and his lawyers proceed to argue in front of one another about their strategy about, in front of the judge, it seems like complete disarray and dysfunction.

And in fact, Keith is trying to get his lawyers replaced at that point and the judge ultimately doesn't allow it. It's like a bad reality TV or soap opera or something. Is this, I hadn't seen anything like that before, is this unusual?

- It's not common, but it's not unheard of.

“The issue, I think, from the judge's perspective”

to take their perspective in this instance, is I don't really know what's behind this disagreement. And I'm not because of lawyer client confidence is, I'm not going to ever be able to figure out actually like who's right in this disagreement.

But what judges are aware of is that some people charge are looking to delay their trial, especially in a case where there's overwhelming evidence like this. And one way to get a delay on the day of trial is to say

that you have a dispute that can't be resolved with your lawyer because if the judge impose gives you a new lawyer, that lawyer's not going to be ready for trial that day. So that lawyer's going to need at least a few weeks if not a couple of months.

And now you're not going to trial that day. And so judges are worried about that. It's also the case. Again, I don't know where neither of us was in the room with Keith and his lawyers, so we don't know.

But there are difficult clients. I had clients who said, I'm not satisfied with the quality of representation that I'm receiving. And I want a new lawyer.

“Now, I think they were getting excellent representation.”

But obviously, I have a lot of bias in that equation. So we're not going to know whether Keith was right, whether his lawyers were right, was this just a delay tactic? Did he have a vision of a defense?

Was he asking them to put on a defense that they were like, that's a crazy defense. It's not going to work. We don't want to put it on, right? I mean, it especially didn't surprise me,

He is a very, very headstrong person.

He believes that he is going to manifest the reality that he wants against often overwhelming evidence to suggest that he's not and will not be the reality. So when you're dealing with somebody like that with that kind of mental state,

“I think it's, 'cause the lawyers aren't manifesting.”

That the lawyer's job is not to manifest a good outcome. Like if I believe hard enough, and if I think it, then it's going to happen. The lawyer's job is the opposite of that. The lawyer's job is to see the risks

is to push back at the person who's manifesting this good outcome. And when the lawyer does that, the person who's manifesting can feel like, oh, they don't have faith in me. They don't believe in me.

They think I'm not telling the truth. Well, I gotta surround myself by people who believe in me. Like that's part of manifesting. I'm sad for my fingers, 'cause that is super interesting to me because I think that that is the way they keep reddit.

Is that I think he felt that they didn't believe in his case. They weren't behind him for heartedly,

“but what I'm hearing you say is that it's the lawyer's job”

to be glass half empty. It's the lawyer's job to think about the worst case scenario and to be risk-averse.

Now, that doesn't mean the lawyer's always right,

but that probably means the lawyer is doing their job. That's right. I mean, we, you know, in my office when somebody was getting ready to, when someone was deciding whether they were going to take a plea or go to trial,

one of the things that we saw it as part of our job was is to have somebody else from the office come into the room, we'd go to the jail if our client was locked up or in the office if they weren't. And me as the lawyer, I would have a client tell their story.

I would do, in essence, the direct examination. And then my colleague would do the cross-examination. They would act like the prosecutor and they would be mean as they could be. They would be the most hard-ass prosecutor

that we knew in the office. We didn't want Amy and a fester. Way wanted you to know that if you took the stand, that's what was gonna happen. You were gonna have to be prepared to answer those questions

and it was going to be grueling and if you didn't have good answers, the jury was gonna know it. And so what I would be saying to Keith before trial is listen, I know that you didn't have a weapon and I know that in your mind,

you were not trying to threaten anybody with a weapon. You were not trying to suggest that you had a weapon 'cause that's Keith's view. But what I want you to understand is these people are gonna come and they're gonna take the stand.

And the prosecutor is gonna ask them the question. When you read that note and you saw his hand in his pocket, what did you think? And that teller is gonna answer, I thought he had it gone. And teller after teller is gonna come in.

These are sympathetic people. These are people that the jury is gonna relate with because they are just coming in and doing their job. They did not ask for this. And they are going to create this mountain of impression

that all of these people thought you had it gone. And that is gonna meet the standard

for first degree, under Missouri Law.

(gentle music) Let's take one more quick break and then James and I get into the sentencing and what justice looks like in this case. Let's go to the penalty phase

because in many ways, if there was a chance that Keith's strategy was gonna pay off, it seems to me that the place

“where that would occur would be in the penalty phase, right?”

- Yes, okay. That's the part where his daughters take the stand and basically talk about how important he is in their life especially the absence of their mom and their mom struggling with drug addiction.

And a personal level, I find Marissa and Elise to be very compelling as people. But I'm wondering in the context of sentencing with an adjuri, is that something that typically is effective with adjuri?

Will you say to them, yes, this man did these things

his kids in fact who are counting on him and by incarcerating him, they will suffer

“and is that an argument that resonates with juries?”

- So the first thing to say is juries sentencing

is not common. But I think he can make a difference for judges and I suspect for those same reasons, I would think that it would be an effective tactic to use in front of a jury.

So I think that that was a good strategy. It can't just be the, these people are gonna be harmed by your absence because I think juries understand everyone has people who love them and everybody who goes to prison has somebody

who's sad and hurt that they've gone to prison. So that's not enough by itself. You also have to have as existed here, a story that is both of trauma that helps you understand how it was

that somebody could be put into this position where they would feel trapped and have no choice but to do the thing they did. That's number one. But also number two, which was also present here,

is that that set of decisions is not the totality of who that person is and that to me is part of where his daughters would come in

“with a jury, which is that I think a jury”

is gonna see them or a judge is gonna see them and is gonna think the person who raised these magnificent two children who are coming in here with all of their energy and their sympathy and their love, that person is not a career criminal.

That person is not a menace society. That person is not somebody who needs to live the rest of his life underground behind bars. And so when you put all of those things together, right? The good work that he did raising those children,

the trauma that he and day overcame, the trap and the box and the cage that he felt he was in at that moment that he made the decision to do those robberies, plus then the ongoing harm that would be caused

by them losing another parent, they've already lost one. That is a compelling mitigation case. - All right, in some ways, I say this at the beginning of the podcast, I say this is a story about punishment. What should be the consequences for Keith's action, right?

What should be the punishment? And this is a discussion that I have with Bob McCullough and I asked him, help me understand the motivation for wanting Keith Giamon could be in prison for 20 years 'cause the taxpayers of the state of Missouri are paying for this.

McCullough's response was deterrence, basically,

which is I think a common thing with prosecutors. And I'm asking you, what's your sense of what Justice ought to look like like this in a situation with Keith? - Well, let me, I will answer that question,

but let me first say that right classically in criminal law, there are these theories that justify punishment, right? Deterns is one of them, right? We want the world to know that this is the kind of sentence you're gonna get because we want the future Keith Giamon

'cause of the world to not resort to robbing banks when they're in a crisis, right? And the fact that it's high profile is gonna help McCullough justify that argument to himself 'cause people are gonna learn about this sentence

in the news, right? The other theory of punishment is this idea of retribution, right? That, you know, and I for an eye, you have to make the victim whole. These victims were harmed that day, they suffered that day and to make them whole Keith has to suffer, right?

And the third big rationale that is often argued is incapacitation. The idea that you need to be held behind bars because if you're not, you're going to do more crimes, right? Now, I don't think the incapacitation argument

was powerful here, I don't think a lot of people thought,

“certainly not that you need to 20 years for that, right?”

And maybe, but I do think when I hear the, when I hear McCullough on the tape and I think about prosecutors that it was both the retribution and the deterrence argument that were kind of motivating them, everybody's instincts about these sorts of things

are gonna be different. I'm somebody who believes that the United States has one of the largest prison systems in the world and I believe that we should have a system that is dramatically smaller than it is.

and this racial justice crisis that is mass incarceration is because of how long our sentences are. So I'm someone who believes that in general, we should have a massive reduction in the length of sentences. There are countries, European countries,

that in essence have the maximum sentence

“with the rare exception of the mass murderer, right?”

They basically have the maximum sentences 20 years.

That's the longest you can get for any crime. - Yeah. - I'm somebody who believes that we should import that model here and the impact of that is then it pushes everything else down. To me, this is a crime that did not involve a weapon

and did not involve an act of violence. Nobody was shot, nobody was stabbed. It was a monetary crime. In my opinion, a crime like that should shouldn't be getting 20 years. And so, and if we had a maximum for various serious crimes

of 20 years, then you might look it in and say, "Well, well, we're giving 20 years to the guy who murdered somebody. "Well, we're not going to give Keith Giamaco 20 years." - Yeah.

James, we've talked in the past, particularly in season four, about what is justice look like. That was a very different case. It was a hate crime case. And I remember being surprised in that situation

that you basically were arguing for clemency and saying that time served in a prison cell should not be the only metric by which justice is measured. And I'm wondering if you feel that way here and if so, what is restored of justice

that's like in Keith's case? - Yeah, I was thinking about the tellers.

“I mean, to me, when I think about the victims here”

overwhelmingly, the ones that I think about are the tellers. I understand that the banks were victimized to an extent,

but it's those tellers that that I'll always remember.

And if I was a prosecutor and I was thinking about who's interested in my trying to protect and who's interested in my trying to indicate, for me it would be those people that came to work to do their job who were harmed

and who are hurt by the actions of this man. And I know from talking to other people who have been victims of crime, that often in those circumstances, what people are looking for is that basic human interaction

of having somebody to look them in the eye and say, "What I did to you is wrong and I'm sorry." And I'm gonna tell you a little bit about why, about who I am and what led me to that day. And I'm not telling you that to excuse my actions

at all.

“I just want you to understand the context for what happened.”

And then those people want a chance to look that person in the eye and want to say, "Here's how it felt for me. "You might be thinking, "Oh, this was nonviolent "and you just had a note,

"but from my standpoint, I was terrified "that you had a weapon. "I was terrified that you were gonna pull a gun out. "I was terrified that I might die." And in the case of the one tell me,

"My child in my unborn child, my die with me." And I want you to know how you harm me. And I want you to know that I still think about that day, I still live with that. And you think this has some sort of,

to some extent, that occurred within the courtroom. But it wasn't with that purpose in mind, right? In other words, the victims explained the effect that this had on them. Keith talked a little bit about the mitigating circumstances,

but the framing of all that was different, right? It was, they weren't talking to one another. - It was completely different. - It was completely different. I mean, just on a minor level. I mean, just think about, we go to that case,

we talk about our kids. I mean, think about the smallest thing. Your kid violates curfew. Your kid calls you and says, "I'm not, I'm gonna be home by midnight and then isn't."

And they show up at two o'clock, right? AM, two hours late.

And you never have an in the helper in household.

And you know that at the time you talked to them, that they were lying. They were not planning on coming home. And you feel terrible as a parent. You were lied to, you were directly lied to by your child,

who you know everything you have done to raise them, all the sleepless nights, all of that, right? That is a harmful thing. And what you want is you want them looking you in the eye and admitting that they did wrong

You don't want some elaborate third party thing

where they're talking to somebody else. The court process is not set up to reduce the kind of intimate face-to-face acknowledgement of harm, acknowledgement of pain and commitment to act differently in the future.

The court process isn't set up for that. - Okay, I'm interested in what you say. And obviously I've had that same experience. Our kids, James and our kids are friends and they're contemporaries and I've been that in that spot.

- In fact, some might have even been here when you didn't come home from perfume. - I can either confirm nor deny. But my question is, in that situation, James, your hurt and your interest in resolving this

is linked to the fact that you have a deep and existing relationship with your son. The part where I'm tripped up here is what about the teller who has no relationship with Keith and maybe just wants to move on with their life.

I am just pushing back on the idea that victims would necessarily want to be in proximity or have anything to do with someone that put them in that situation.

They won't always, but some do.

And right now, we don't give any the opportunity. We don't give anybody the option of having that be part of the way that they get my made whole.

“We tell them all that the only thing is you can come down”

and testify and we're gonna try to get the longest sentence that we can't. Like that's the whole framework. So I guess all I wanna say is, I think we underestimate people's capacity

to not necessarily forgive, because you don't wanna put people in a position where they have to offer forgiveness, although they might. But we underestimate people's capacity

to be helped or partially repaired or made better

or made partially whole by having the chance to be face-to-face with the person who is truly prepared to acknowledge the harm that they have created and apologize for it. - Yeah, I hear that, this was a commenter from Spotify

that was flagged me by a producer. This is talking about Keith. Such kindness by the police for an old white guy. I'd love to hear a similar story about a black father, so many of which have had to do the same

for their families, and were beaten slash murdered by the police while being arrested for trying to care for their families. Were you hearing the story and seeing kind of racial dimensions to where

was your mind going to thinking about how this might

“have played out differently if Keith were someone of color?”

- True, I mean, starting with the arrest, which the commenter is talking about, right? That moment when Keith is pulled over by the police, a few miles from the bank after leading them on some manner of kind of a high-speed chase, right?

And we have black kids shot and killed holding a toy gun. And so, for sure, I had that reaction. I also had the reaction throughout the fact that good morning America was interested in this story.

The way the police treated the girls, when they came to their house. So it seemed to me throughout the process that there wasn't a amount of privilege that he was getting, I will say that I'm trying to work

towards a system where we level up and everyone gets treated that way. So I don't want to have a reality where I say, well, I nod that that happened to you.

“You should be beaten and mistreated in your family.”

Your daughter should be taken into child custody just because that would happen to a black family. I want to flip it and I want to say to black families, to poor families, to families of color, we're going to give you the Keith J. Monko treatment.

James, thanks so much for breaking this all down for me. Really appreciate it. And look forward to having you on again. Fantastic. I had a great time. And I look forward to our next conversation.

This episode of Deep Cover The Family Man

It was edited by Daphne Chen.

Our executive producer is Jacob Smith,

mastering by Jake Korsky.

Original scoring in our theme

were composed by Luis Guerra.

“Our show art was designed by Sean Carney,”

fact-checking by Enica Robbins. Special thanks to Karen Shakurgi, Morgan Ratner, Kira Posey, Jake Flanagan,

“Corinne Gillierd Fisher, Eric Sandler, Christina Sullivan,”

and Greta Cohen. I'm Jake Halpern. This is an eye-heart podcast. guaranteed human.