Transcript of Episode 43, with Zaki Zehawi

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 in the country. Today I’m very glad that we’re talking with Zaki Zehawi. Zaki is a fabulous criminal defense lawyer. He’s a public defender in San Diego, California, and he’s truly one of the most creative, feeling, spontaneous, and caring trial lawyers that I know and people that I know. Zaki is a wonderful guy, and I’m really glad that we’re all going to learn from him today. So let’s get started.

Welcome to Trial Lawyer Talk. I’m Scott Glovsky, and I’m here in this podcast where we speak with some of the best trial lawyers in the country, and I’m excited to be sitting across from Zaki Sahoway, who is a wonderful trial lawyer, genuine, real, authentic, passionate, and caring trial lawyer. Zaki, thanks so much for being with us.

Zaki Zehawi:

Thank you, Scott, for asking me to be here. I’m honored.

Scott Glovsky:

Zaki, can you share with us a story of a case that had a profound impact on you?

Zaki Zehawi:

Certainly. The one that comes to mind is the case of Laundrea Raymond, and this was a case I handled about five or six years ago, and it was the case of a client who was accused of burglarizing a home with the intent to commit rape. His story started back when he was kicked out of his house at age 19 for impregnating his girlfriend. His father was very, very controlling, very, very religious, abused him, abused his siblings, abused his mother, abused everyone in his life and completely abandoned Laundrea when he found out that his girlfriend was pregnant.

So client was on the streets for about six months and started using methamphetamine when he was on the streets, and I think pretty much lost control of who he was and the direction that his life was going into when his girlfriend aborted his child. And that kind of sent him off the deep end. He was hustling, he was robbing, he was stealing.

He eventually one time followed a girl into her apartment. It was a girl who was completely sympathetic. She was 22, 23 years old. She was taking a late night study class to take the LSAT to go to law school. She couldn’t use the bathroom at the law school, because the class got out so late that they locked everything, so she hurried home and she went into her apartment, and my client was casing those apartments. Saw her go in, she had to use the bathroom so bad, she forgot to close the door behind her. She walks, she goes to the bathroom, she walks out. My client’s standing in the living room with the door closed and a handgun. She didn’t know at the time, she thought it was a handgun, but it was a very realistic looking pellet gun.

He orders her into the bedroom. She’s terrified. He rapes her. He has her forcibly orally copulate him. He rapes her again. Each of those counts was 25 to life, and he left after stealing a few of her things, and he’s caught within a matter of hours. And the girl who was raped, her roommate and the roommate’s boyfriend were home in the same apartment in their bedroom watching TV. She didn’t know that, and she never made a sound because she was so terrified. When they caught up with my client, the district attorney was … My client had no record, and they were not interested in anything besides a life sentence.

And so that was the case that I had to deal with. We even at one point offered them 30 years. I think my client would have even gone to 40 years of a determinant sentence. Obviously they had the DNA from the semen, the lineup, he’s seen taking public transportation. He’s caught within hours with the girl’s items he had stolen. It was a factually terrible case. Terrible. And we had to try that case. We had to try that case. And the only thing that had some type of traction was saying that he formed the intent to commit rape after he got into the apartment, that he was homeless, he was looking for a place to stay, and he kind of saw this open door, walked in, so he wasn’t committing a burglary at that point, but formed the intent to commit rape once he got to the apartment. And that’s a big difference.

That’s a big difference from a maximum of eight years for each rape count or forcible sexual act versus 25 to life. But it was a pretty weak argument, and we tried that case, and he was convicted on everything, and he was sentenced ultimately to … I think it was like 56 years to life at 19 years old. I’ve never felt more powerless in a case and ineffective that I couldn’t negotiate this case. I couldn’t present his story in a way that made the district attorney and their supervisors and their supervisors’ supervisors care about my client. They had him, they knew he had them, factually it was horrible case. Legally it was a horrible case, and they just weren’t interested. I completely failed to negotiate that case properly and obviously completely failed to have him not wake up every day knowing he’s going to serve a life sentence.

Scott Glovsky:

When you say you failed, say more about that.

Zaki Zehawi:

I truly, truly believe that any case can be won. Any case can be won. If you don’t believe that going in, then you know you have no business stepping in the ring. You have to be optimistic. And when I say that it could be won, it could be one by just an 11 to one hang with one not guilty voter. And then you bring the case back to the district attorney. Rather than put the victim through this again, or the complaining witness through this again, let’s listen to settle it for something that we can live with. That could be a win. And so you have to believe that. If you don’t believe that, the jury will see that, and they will convict.

And so what I mean by I failed is that whatever approach I adopted in that case didn’t resonate with the jury for them to care about my client. I failed to do it with the district attorney. I failed to do it with the jurors. Come sentencing, there’s not much the judge can do. These are mandatory consecutive sentences except for one. I convinced them to run concurrent, but the real issue is he’s going to be carried out of prison in a pine box. That’s the end of the story. Now, fortunately, because of his age, we’ve had some new legislation in California where he might get a shot at parole earlier.

Scott Glovsky:

Well, is that true? In other words, virtually all of the listeners of this program and anyone who hears it, hearing those facts and hearing that situation would think it’s an incredibly difficult case, if not impossible case.

Zaki Zehawi:

You know, yes. I feel that way about many of my cases. It’s impossible, or size it up and think this is the value of this case. How much of a patch out of my client’s life is the system going to take before they consider it justice? But being a public defender, you don’t get to choose your clients. You don’t get to choose your cases, you don’t get to choose much. You don’t get to choose where your case gets filed. You just have to be the eternal optimist. If you’re not, then you’re doing yourself a disservice, because there’s no way you can do this job without waking up every day thinking that you can make a difference in somebody’s life. Once you start giving that up, then it’s really time to find something else to do.

Scott Glovsky:

How much does that matter? In other words, we both have seen great lawyers win impossible cases, and Jerry Spence says it all starts with you, but your optimism, how important is that, or confidence?

Zaki Zehawi:

I think it keeps me sane to some degree by living in this … It keeps me sane by presenting this alternate universe where good things could happen even though they probably won’t, or they might not. And I think that’s one of the beautiful things about the Trial Lawyers College is that we get a chance to see our most difficult and impossible cases through new lenses and discuss them with real attorneys who are trying cases in creative ways to find that optimism, to find that spark, to find that theme, that moral center that you can get your jury to gravitate to that you probably didn’t even think about, that maybe individually your other colleagues didn’t think about, but collectively you’ve come up with something beautiful, intangible, and achievable for you and your client.

And so even when you have the most hopeless cases, just going to our local groups and working them up has been profoundly impactful for the benefit for the better of me and my clients and keeping me optimistic about what I do.

Scott Glovsky:

How did this case have a profound impact on you?

Zaki Zehawi:

I can count on less than one hand clients that are serving a life sentence, and Laundrea’s case … It’s hard to say, because it’s something that just kind of stays with you, knowing that someone you defended is doing life. You don’t think about it every day, but there’s just days where you can’t stop thinking about it, whether it just days when you have another case and it kind of creeps back into your mind.

So it’s hard. And I want to think that because of that experience, I’m a better lawyer, but that’s maybe the optimistic part of me. I certainly don’t think going through that made me a worse lawyer or a worse human being, but I think that knowing and understanding the gravity of the consequences that your clients are facing is something that you have to appreciate.

Scott Glovsky:

And I can feel the weight, the responsibility that you feel, that your client, who you fought for spending the rest of their life in prison, that’s a lot of weight to carry.

Zaki Zehawi:

It can be. It certainly can.

Scott Glovsky:

How do you deal with it?

Zaki Zehawi:

Well, let me start by telling you the ways that haven’t helped me deal with it. That’s drinking. That certainly has not. Again, I would go back to my wife and her understanding of who I am, what I do, my TLC brothers and sisters, my colleagues at the office. There’s no shortage of people out there that are ready to pick you up for getting the shit kicked out of you. And if you surround yourself with those people and make yourself available for those people to create those connections, they’re always going to be there for you if you allow yourself to be there for them first.

I’d say maybe the last thing is exercise. You got to keep yourself healthy, however you do it. Running, working out, lifting, crossfit, whatever, you have to get your blood flowing, to just take your mind and disconnect from everything and focus on your body, because there’s nothing that feels better than exercising really well and that feeling of just your body being satisfied in its own skin.

Scott Glovsky:

You mentioned a minute ago essentially having a tribe to lift you up when you’re down, to support you, to show you love. How does that relate to how you pick a jury?

Zaki Zehawi:

At least in the criminal defense world, the best that I feel I can hope for a jury is one that tells me that they’re gonna listen, they’re gonna wait to hear the facts. Very rarely you get a jury are up there that’s completely pro defendant, and this guy’s been framed, and I’ve been framed before. It happens, but it’s a rarity. And so step one is you have to be open and honest and vulnerable with yourself, and then give the jurors an opportunity to follow you. I think that when it comes to jury selection, voir dire is … Ultimately, I think if you were to condense it down into one teaching moment, voir dire is how well you know yourself. That’s it. It’s how well do you know yourself with the case that you have if you’re being perfectly honest with yourself. What was my first impression of my client that’s got a tattoo that says, fuck the police, has big letters on his forehead, or one that can say stop yelling obscenities at the top of their lungs?

And I know it’s public defenders, we’d really like to say, oh, well, you know everyone’s presumed innocent, and it’s fine, but it’s not. It’s not all the time, and I have my first impressions that I’m ashamed of sometimes when I walk in and get a gang case, and it’s a 19 year old kid, a minority from the inner city, and I was like, oh, yes, this makes sense. And it’s a bit shameful. But I have to recognize that in myself, if there’s any hope in getting the jury to recognize that within themselves, because if I’m not being honest with who I am, then there’s really no reason for them to be honest with who they are.

Scott Glovsky:

I’ve heard that you often represent gang members, and I’ve heard you have a story about that. Can you share that with us?

Zaki Zehawi:

Yeah. I had a case, and it was a basically a hang with a conviction on a couple of counts on one, and then we retried it. It was basically my client was a gang member going to pick up his dope money that this guy owed him. And the guy didn’t take too kindly to my client showing up, and shots fired at my client. But my client’s a G, so he had his own heat, and he returned fire and everyone bails. My client gets caught with a gun, and they charge him with it, and we had to communicate basically that gang banger, I laugh now, gang bangers who are collecting drug debts are allowed to use firearms, illegal farms, because he was a felon, to defend themselves, and some of the jurors got it on the first trial we had, and he was convicted of a couple of counts, but they wanted to retry the case to get a life sentence.

And I hired this guy named Reggie Washington from Project Aware, phenomenal human being, who he himself was a gang member and did I think 23, 24 years for attempted murder. Turned his life around in prison, and now to help kids stay out of gangs. So I brought him on as a gang expert to really humanize my client, let the jurors know what it’s really like to be out on the streets. And the jury acquitted my client after that verdict. And I want to share one thing about the jury selection. I shared with the jury my initial impression of my client, and he was a young African American.

Scott Glovsky:

Share with us now the way you shared with them in voir dire.

Zaki Zehawi:

Well, okay, I sat up. I said I have something to confess to you. When I got these charges, the complaint, I reviewed them, and before I even got the police reports, before I met my client, before I talked to anyone who knew my client, I went to go see him just knowing what he was charged with to say hello, give him my business card, and let them know who I was. And he was a young black man, and he was charged with attempted murder with a firearm with a gang allegation. And Steven Demik helped me a lot with this, to articulate it, and I said this makes sense. This makes sense. If there’s anyone that could be stereotyped into being charged with these, it’s going to be a guy that looks like this.

I’m not proud that I felt that way, but I’m wondering if any of you felt that way, felt like I did when you walked in here and you saw my client and the judge read the charges off to you. The hands went up, and that for me is a beautiful thing when the hands go up. And of course they, yes, yes, yes, we thought that. We thought that. And we broke for a little while, and then one of the jurors came back in after the break, and she says, you know, I didn’t raise my hand earlier, but I’m really struggling with him being a young African American man, and she lived in a lily white neighborhood, and she was a blonde haired, blue eyed woman. And she expressed her concerns, and she thinks that gang violence is hurting our neighborhoods, and she was completely open and honest, and we kept her on the jury.

I kept her on the jury. The codefendant attorney, he said we got to keep her. She was amazing, how open and vulnerable, even though what she said, if you were to look at it as a transcript, was not particularly good. You could hear the emotion in her voice. She was a caring person, that she was a deeply honest person, and she was one of our biggest voices for innocence or for a not guilty verdict. After the verdict, we got in the hallway, and she asked me, she stuck around. She was like, “Why did you keep me? I didn’t say anything that was helpful to you.” And I looked at codefendant attorney and we said, “Because you were honest,” and that’s just a currency that’s missing.

It was one that was missing in the DA’s case, and it’s such a gift to be able to recognize in yourself. That was just one case I think that I felt like a real schmuck for feeling that way about my client when I saw him. And obviously you have to prepare your client for that. Like, listen, I’m going to say some things that are not going to be flattering, because you don’t want your client jumping up like, “Hey, what are you saying? What?”

It’s amazing how when you are just honest with yourself and you can be honest with the jury that they’ll respect that and they’ll come back with you. And now I’m at a point where if I do a voir dire and there’s nothing negative said at all, everyone’s just kind of this stream of conscious nonsense. Nothing good, nothing bad. I feel like I failed. I haven’t created an environment where people feel comfortable enough to really express their views. Once they express their views and their cruel, and they’re mean, and they go on and on, and you just allow that to happen. You allow that to happen. You push the boundaries of what’s acceptable, so people were just completely saying whatever they want to say.

Ultimately someone will save you. I believe that. Ultimately there will be that juror that says, “You know what? I need to hear the whole story. I need to hear that.” And for me, that’s never failed, at least not yet, not yet. But ultimately, to finish up what I was saying about with Reggie Washington and Project Aware is he invited me to join their local groups. They have a very similar to Trial Lawyers College, and it’s a group that meets at the library in a gang neighborhood, and we meet with at risk youth, basically probably 14 upwards of mid-twenties, and we circle up, and we talk about how to find alternatives to anger, alternatives to violence, to express our anger. And I’ve been going there for three years now, and I love it. I love it.

Scott Glovsky:

What advice do you wish someone had given you when you were a young lawyer starting out knowing what you know now as the great trial lawyer you are?

Zaki Zehawi:

What advice would I give myself? I think it was, or anyone else. I think ultimately you have to be you, and you mentioned it before, it starts with you. It absolutely does. There is nothing more lonely than being somebody you’re not, and nothing more transparent or superficial than someone you’re not. Just simply being you, being authentic and open and vulnerable is something that the jury gives tremendous respect for, tremendous respect for. And we win cases because of that. And we lose cases. We can lose cases with one little lie that we tell, one little moment of insincerity that we have, and it’s so much easier just to be yourself. It’s so easy to be yourself once you allow yourself to be yourself, because putting on these different masks of who you are here on this day and that day, it gets so confusing that you really forget about who you are.

Be yourself. Learn from your losses and be optimistic. It’s okay to pick yourself up and be kind to yourself and be compassionate towards yourself, because you’re going to have to show the jury that you can have that compassion for yourself, for your client, for them as jurors. Compassion for the lying snitch, for the overzealous district attorney, for the cop that planted the gun on your client. Because we’ve heard this before, too. If you can’t love your client or at least some part of your client, even that part where you understand that when they were born in the hospital, had they gone home to a different home that day, how different their lives would be compared to going home to a cesspool in the inner city and how they grew up there. And if you can’t love your client or some part of them, you cannot expect the jurors to do that. You cannot expect the jurors to do that, and you will fail and fail and fail, or however you deem success.

Scott Glovsky:

Well. Zaki, thank you so much for being with us. Your wisdom and kernels of experience and knowledge and skills are very evident, so thanks, buddy.

Zaki Zehawi:

Yeah, thank you, Scott, and thank you for everything you’re doing with that Trial Lawyers College.

Scott Glovsky:

Thanks, buddy.

Thank you for joining us today for Trial Lawyer Talk. If you like the show, I 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 .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 to 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.