In this episode of Trial Lawyer Talk, Scott speaks with Kentucky criminal defense lawyer Frank Mungo. Mr. Mungo discusses a drug case and the power of storytelling.
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Transcript of Episode 45, with Frank Mungo
Scott Glovsky:
Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m your host for this podcast where we speak with some of the best trial lawyers around. Today, we have a special treat. We’re talking with Kentucky criminal defense lawyer Frank Mungo. Frank is one of the funniest guys, one of the most creative and skilled trial lawyers that I know. So let’s get started. I’m very happy to have on Trial Lawyer Talk my friend Frank Mungo. Frank is an awesome human being. Super genuine, super funny, and I’m really happy to have him here. He’s a criminal defense lawyer in Kentucky and in Ohio, and he also does some civil work, and is just a phenomenal trial lawyer. Frank, thanks for being with us.
Frank Mungo:
Man, Scott, thank you for having me. It’s really an honor to be asked to be on your program. Glad to be here.
Scott Glovsky:
Can you share with us a story of a case that had a profound impact on you?
Frank Mungo:
Yes I can Scott, and let me take you back a couple of years, and we’re in federal court. And in practicing in federal court, there’s a lot of times where the case is not about the trial, but the mitigation, the sentencing hearing, and I use methods that I learned at Trial Lawyers College to influence the court to either accept the plea bargain sentence or argue for a lower one. What I’d like to do is take you back to a time where I had worked out an agreement with the prosecution. It was a heroin case, heroin trafficking case, and there was a firearm involved, and the firearm automatically, if it’s involved in drug trafficking, carries a five year sentence, and in federal court they don’t go by years, they go by months.
So five years would be 60 months. The amount of heroin that this young man was selling was less than a gram. So if you take out your wallet and get a dollar bill out, that’s about a gram. So it weighed less than a dollar bill. So the prosecution said, “Hey, if you plead guilty to the charge of the gun, I’ll recommend the lowest sentence I can to 60 months.” And my client, “Yeah, that sounds great. I’ll do it.” So he accepted the plea bargain and now we’re in sentencing. We’re in before the judge, a federal judge in the eastern district of Kentucky, and my thought was, “Hey this is going to go smooth, no problem. He’ll get 60 months.”
Well we get to the hearing and we’re before the judge, and prosecution goes first and he says, “Madam prosecutor, why should I take this sentence?” And she gives a very credible statement about how my client accepted responsibility right away and recommended 60 months, just like we had planned. No problem, right? Well the judge looking at his record, and in Kentucky they got this charge that’s called unlawful transaction with a minor. Now that sounds like a heinous thing, but if you buy a beer and then you give it to someone who’s a minor, you have committed unlawful transaction with a minor.
Now his sister, my client’s sister, had a joint and he took the rap for giving it to her so he would get her out of trouble. So that was the commission of this crime in his past, but the judge got fixated, and the more he got fixated on it, the more he got kind of angry. And he says, “You know madam prosecutor, I’ll tell you what I’m going to do. I’m just going to enhance this man and I am going to give a sentence way above 60 months.” And then about that time before he was about to impose it, he says … He remembers he hadn’t asked me to make a statement on behalf of my client.
So then he turns to me and he says, “Mister Mungo, tell me right now why I shouldn’t enhance your client. All right. Tell me right now. Go.” Just like that. Well I am on the spot now, aren’t I? And the only thing I can think of is I look down at my client, he’s sitting down there and I know he’s about to die, and it occurs to me I see he has a scar on the back of his neck, and that reminds me about before you go into sentencing in federal court, you have to have a pre-sentence report and ask your health, employment history, and drug history and any medical history, and I sit in on that interview, and my client tells about how he got burned on the back of his neck.
And so when I see that burn on the back of his neck, it occurs to me what I’m going to do. So this is what I tell the judge, “Your honor, I do have a story about why you should not enhance his sentence. In fact, I have a story to tell why you should keep the sentence and follow the recommendation of the United States and give him 60 months, and let me take you back to the hills of Kentucky, and sitting in at his momma’s white hat, grand mama’s white house, my client his name is Steve, he’s sitting at his table with his grand mama, and the table is yellow formica, and they’re sitting there drinking coffee when the neighbor busts in and says, “It’s on fire! It’s on fire! It’s on fire! It’s on fire!””
And Steve jumps up, runs outside, and next door to his grand mama’s house is a double wide white trailer, and there’s smoke coming out of the windows. Black smoke just kind of billowing out. Now in that trailer is Steve’s girlfriend, and she’s got two youngins. A six month old and a one and a half year old. Now she’s outside crying and sobbing, and she’s got the six month old in her hands, but she says, “My baby’s inside! My baby’s inside!” Now here’s the thing. These aren’t Steve’s kids. They’re children by another man. But Steve without hesitation, he runs into the house, runs into the trailer, and the little boy’s name is Tanner, and he’s yelling, “Tanner! Tanner!””
Now the smoke is billowing up inside the room like boiling on the ceiling because it’s an enclosed fire. Now in about a minute and a half, that temperature can reach about 2000 degrees. Now the smoke is thick and so Steve has to run back out because he can’t breathe. He’s doubling over, and he’s hacking, and he’s coughing, and then he runs back in. Now this time the fire is spreading, and it’s boiling on the ceiling, and it’s starting to run down the sides of the hallway, and it’s licking outside of the windows, and Steve is yelling, “Tanner! Tanner! Tanner!” And he’s making it down halfway down the hallway and he can’t hear Tanner.”
And once again he gets overcome by the smoke and the heat and he runs back out. Now a crowd has occurred outside and they’re yelling, “Steve! Don’t go back in! Don’t go back in!” And so for the third time Steve runs back into the fire, and this time he makes it all the way back to the back bedroom and he’s yelling, “Tanner! Tanner!” Now this time on the side, the fire is just … It’s licking. It’s not really a corridor, it’s not a hallway, it’s just a tunnel of fire at this point, and Steve’s wondering if he’s even going to make it out. But about when he’s about to turn to run outside the room, he hears this … Behind the bend, and he pulls the bed outside and there’s Tanner crying, and shaking, and he immediately grabs the boy, rolls him up in a blanket, and he carries him like a football, and he can’t even hardly see the door, but he just heads towards the door, and this time he has to run through the fire because there is no hallway, it is just fire.
And he runs through the fire, and as he bolts out the door he is just a ball of fire. Steve is on fire from his legs, to his back, in his head, and the neighbors grab him and throw him on the ground, and they grab the boy out of his arms, and they put him out, and the first words out of Steve’s mouth was, “Is Tanner all right?”” So I look up at the judge and I said, “Your honor, I can honestly say with a straight face I don’t know if I would be that kind of man to run in once, twice, but sure I don’t think I would have even been able to run in three times. A man of that character deserves compassion. A man of that character deserves the sentence that was recommended.”
And the judge looked at me and just stared, and he says, “60 months.” He got off the bench. So that’s the power of setting a scene, and telling it in the present tense, and pulling the judge into the story of my client to get a recommended sentence. We don’t think we can do that in mitigation, but you can use it anytime and anywhere.
Scott Glovsky:
And how did you know that story?
Frank Mungo:
Just listening to my client. That’s one thing that we teach a lot at the college is listening. Just listening. And I never thought I would use it, I never thought I would need it, I certainly didn’t think I needed it. I thought this was going to be a five minute sentencing hearing and it would be over, and it turned into a fight for the recommended sentence that we had agreed upon to get the judge to follow it. But it was all about the materials and techniques that I learned here at the Trial Lawyers College.
Scott Glovsky:
Say some more, as a lot of our listeners are not people who are familiar psychodramatic techniques.
Frank Mungo:
Well let me walk you through it. So the first thing you want to do in telling a story is you want to set a scene, and then you want to transport your audience by telling the story in the present tense because then they can start seeing what the character sees as the story evolves, and then you try to use as much imagery as you can so that they can get an idea, that they will write, as we run down the hallway that’s burning, they will draw their own image of what that looks like. So I just have to start it and then they can see it, and then I just tell it as the story moves along, just keep that tension up. Is he going to make it out alive? Is he going to find the boy? Is he going to … What’s going to happen next? And that naturally pulls you into the story.
But it’s all about setting the scene and becoming … We call it … We literally call it setting the scene as a psychodramatic technique, and then we go into the first person or present tense as the story comes out.
Scott Glovsky:
Are the senses important in that?
Frank Mungo:
Absolutely. The more senses … I could have embellished it, “Well it’s a fall night, and it was 32 degrees, and there was frost on the grass.” I could’ve had given more imagery. What’s the sound of the fires he’s running down? The more sense I can, the more it allows you to write your own story. So that is kind of where I … That’s my … And I had to make this story up on the … I had to retell this story on the fly in a high stress situation, so I literally told the exact same story to the judge, so I didn’t have time to … If I had more time and I knew I was going to do it, I would add more sense to it so that the judge would really start to write his own story himself in his head.
Scott Glovsky:
Can you share with us Frank Mungo’s story?
Frank Mungo:
Well see I grew up in South Carolina in a small town, and I’m 50. I’ll tell my age. I’m 53 years old. So when I grew up, there were … You had to get out of the chair to change the channel. That’s how old I am. So there wasn’t much to do. So my dad … I hung out with my dad and my dad would take me around with him, and that was fun for me growing up being around my dad, and we would go around to … There was this old gas station where a lot of old men, I thought old men, hung out and what they do … And my dad would sit there, and he would talk to these guys, and they would tell stories. Just tell stories, and I loved that. I loved listening to them, and I just kind of got a natural … I’m like, “Man, I want to do that. I want to be a storyteller.”
And if I can find a way to help people by telling stories, I want to do that. So there’s no greater thrill for me when there is a trial or mitigation to advocate through story for my clients because I feel like that’s a gift that I was given, and I like to use it to do that. It’s why I became a lawyer.
Scott Glovsky:
And how did you learn to tell story?
Frank Mungo:
Well I learned by listening, but then as I got … My background is engineering believe it or not, so I studied physics and then I studied engineering, so I always like to figure out how things work. And so I broke down in a very analytical fashion as to why a story works. How do you tell it, how can you tell it better, and what makes someone want to come and fall into a story with you as it’s being told? And story structure, and there’s tons of resources out there on how to put together a sequence of story. So I did all that.
Scott Glovsky:
Like what?
Frank Mungo:
Well for example, there’s several …. I would say templates. Let me give you an example, and I know your listeners have seen it time and time again, and maybe they don’t realize it. It’s called a hero’s journey. Every Star Wars film that I’ve seen follows the hero’s journey. Any of the Avengers films follow the hero’s journey where it’s an everyday world, life is going on naturally, and then all of sudden there’s some exciting event, some initiating event that causes, like in this case, Steve who’s sitting at the table, someone busts in and says, “There’s a fire! There’s a fire! It’s on fire!”. That’s an exciting event.
That changes Steve from sitting there with his grand mama talking and drinking coffee to, “Oh my god. Something’s happened.” And it takes him from that ordinary world into a new event, a new world. Now Steve, when he reaches that doorframe, he’s got to decide … I mean I knew Steve wouldn’t. Nobody wants to run into a fire, right? So the easiest thing for Steve to have done was just stand there and just yell or whatever, right? He becomes the reluctant hero. He doesn’t want to go in the house, the trailer, but he does, and he does time and time again, and that heroic behavior pulls us in because we all want to be that kind of person. We want to be the reluctant hero, we want to face danger and move forward. And then the final stages, the return home, that’s when he brings the boy out of the fire.
And what does Steve say afterwards? “Is Tanner okay?” Now the actual story is, the final part of my story was written by the judge, right? He decides … He’s literally changed from being a hard person at the beginning of the story to a compassionate judge at the end of the story. So he’s part of my story as well and he has now changed because he has transformed after hearing this story from being hard to being compassionate, and rendering the 60 month sentence. So story structure helps us navigate a way because we’re so familiar with that structure. It feels like it’s the natural thing, and so we kind of anticipate what’s going to happen next or what might happen next, and that pull us into the story.
Scott Glovsky:
I know you’ve got a million of them, but let’s pretend we’re sitting at the campfire and you’re going to tell a funny story. Can you share with us a funny story?
Frank Mungo:
Man, you’re just putting me on the spot here, aren’t you? So if you and I were sitting at the camp, I’d tell you about the time me and my friend Wayne, and his brother Jamie, we were about … I was about eight years old … No I was about … Yeah. I was eight years old, and Jamie was five years old. That’s Wayne’s little brother, and Wayne’s also eight, and we had gone through the woods and come up on our elementary school where we went, and it was all closed. It’s like 4:30 in the afternoon. And Wayne got this bright idea that he would want to go and get on the school buses that were parked next to the school, and me and Jamie are kind of following after Wayne, and he already gets on the bus, and about the time we start heading towards the bus, the police appear.
I see this police car pulls in and he cherry tops. His lights start coming on. Now we ain’t done anything wrong, but that sheer thing of seeing the cops and they’re coming towards us, we start running, right? And so I’m running for the woods, and I’ll tell you right now, Scott … Usain Bolt couldn’t keep up with me. I was humping. I was humping and I could hear Jamie is like, “I don’t want to go to jail!” And I’m thinking, “Too bad Jamie, I am not going to get caught.” And I am humping towards the woods, and I’m like, “Oh, let me hit the woods.” And I hear the … And I’m running, and I’m running, and I’m like, “Jamie, I’m going to jail!” I’m like, “Not me! Sorry Jamie!”
And I hit the woods, and I’m running, and I’m running through the woods, and there’s a path in the woods, and I come across this creek. Now I know that I think I’m Superman at this point because I am running the fastest I ever have, and I think I can clear that creek. But that creek is about 15 feet wide, and so … But that don’t stop me because I am thinking I am going to make it. And about half-way through that air I’m thinking, “I am not running as fast as I think I am.” And I just nosedived, face-plant into this polluted creek, and I’m thinking, “Oh man, my mama is going to get me.”
So I run back, going home, I’m covered … This is the 70’s, right? So the creeks got oil and stuff in them, and I’m like, “Oh man.” So I’m stinking, I’m greasy and everything, and I sneak into the house and my mama is right there. My mama says, “Boy, what you been doin’?” And I’m like, “Mama, I’m going to jail! I’m going to jail!” And she’s like, “Well you just going to have to tell that police officer you’re sorry.” So she got me cleaned up and we went to the police station, and she made me apologize to that police officer. So that’s my story.
Scott Glovsky:
That’s a wonderful story. Well Frank, thank you so much for being with us. Thanks for sharing your wisdom and your humor, and you’ve taught us a lot about storytelling.
Frank Mungo:
Well thank you, Scott, man. Thank you so much for having me. I appreciate it.
Scott Glovsky:
Thank you for joining us today for Trial Lawyer Talk. If you like the show, I’d really appreciate it if you could give us a good review on iTunes, and I’d love to get your feedback. You can reach me at www.ScottGlovsky.com. That’s S-C-O-T-T G-L-O-V-S-K-Y dot com, and I’d love to hear your feedback. You can also check out the book that I published called Fighting Health Insurance Denials, A Primer For Lawyers. That’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care for people, and it provides a general outline of how to fight health insurance denials.
Have a great week and we’ll talk to you in the next episode.
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