In this episode of Kash’s Corner, we take a closer look at three high-profile trials currently making their way through the courts: Ghislaine Maxwell, the former girlfriend and business associate of Jeffrey Epstein; Elizabeth Holmes, the founder of the blood-testing company Theranos, who is accused of wire fraud and conspiracy; and Jussie Smollett, the “Empire” actor accused of faking a hate crime against himself.
Kash Patel: Hey, everybody. And welcome back to Kash’s Corner. I hope everybody had a wonderful Thanksgiving break and we’re ready for a new season of Kash’s Corner starting today.
Jan Jekielek: I can’t believe that it’s actually season three, the time has gone by so, so, so, so fast.
Mr. Patel: That’s unreal–three seasons.
Mr. Jekielek: We actually missed the thick of the Kyle Rittenhouse trial, which was something that obviously you would have had a lot of opining to do on. But there’s three trials going on right now that are, I don’t know, high profile, but they don’t seem to be getting a ton of media attention.
We’ve got Elizabeth Holmes of Theranos, we’ve got, of course, Ghislaine Maxwell, that’s probably the biggest one. And then, of course, there’s Jussie Smollett. And these are all happening simultaneously. Let’s dig into these. And actually, it’s kind of cool because you can look at this from actually both sides, both from the prosecution side and the defense’s side.
Mr. Patel: When I started my career after law school, I was a public defender for many years, and then I became a federal prosecutor. I actually ended up trying 60 criminal jury trials to verdict, which is probably more than most people try in a lifetime. And I was fortunate to do that work for almost a decade.
So a lot of experience, not just in federal court but also state court. So we’re talking about cases today that are in state and federal court. The Rittenhouse case was in state court, we won’t spend much time, if any on that. But the Smollett case is over in state court.
I also think for media purposes, growing up, I remember I was in high school when the OJ verdict was handed down. And in terms of a case of that magnitude, I think Rittenhouse probably equaled it or got close to equaling it. Everybody followed the Rittenhouse case.
Usually, you get one case every now and then that piqued the national interest. I think these three cases do pique the national interest; I just think it’s very unusual for them literally to be going on as we speak simultaneously from coast to coast. So, I’m pretty excited to talk about these three cases and maybe guess where they’re going to go.
Mr. Jekielek: Well, so let’s start here. What is the situation with Elizabeth Holmes? Like what are the charges?
Mr. Patel: So that case has been building for quite some time. They’ve already made documentaries out of this and movies out of this and she hasn’t even been to trial yet. Her trial has been going on for weeks in the West Coast, I think in Northern California. She’s federally indicted along with her co-defendant who will be tried separately—her former business partner.
She’s indicted with about eight counts if I’m not mistaken, two conspiracy counts and four to six, what we call substantive counts of actual wire fraud. All that means wire fraud is fancy speak for you used the banking system or the postal system to commit a fraud of some kind. And that’s what’s alleged in her indictment.
She, I think, has been in trial for a few weeks. She just took the stand for a couple of days and now I think the federal prosecutors are finally cross examining her. Which is a really rare thing in a federal case to begin with in a criminal case, for the defendant to take the witness stand in their own defense.
Because as you know and as all our viewers know, they don’t have to and it can’t be held against them. But she took the very unusual step, like Kyle Rittenhouse did, to speak in her own defense. And sometimes that works. In my experience, most of the time that does not work. We rarely put up defendants in criminal cases to testify for a variety of reasons. But the fraud, we can get into some of the details of the fraud.
Mr. Jekielek: But let’s deflect just for a moment to the Kyle… It was unusual that Kyle Rittenhouse was put on the stand. But it seemed to work in their favor to do that.
Mr. Patel: Well, look, having represented so many criminal defendants in state and federal court, that defense attorney knew exactly what his client was going to testify to and knew he had the facts on the side of his client to testify. Because a lot of times you don’t. As a public defender, I knew that the facts were tough to argue and I didn’t want to subject my client to cross examination by a federal prosecutor, which is all right.
Kyle had to tell his story. His case was so politicized, so much in the media, everybody was talking about, not just in America. I had family overseas calling me about the Kyle Rittenhouse case, that’s how much attention this got. So his defense attorney took the very unusual case in probably the highest profile case we’ve seen in modern judicial history. And it worked because he knew how his client would perform. I think what the people saw during his testimony was Kyle’s version of what happened, and the jury believed him.
Mr. Jekielek: Oh, fascinating. So I guess this is… So is this the same play here? Is it really-
Mr. Patel: I don’t think so. If I’m being honest, I think I’ve been following the Theranos, the Holmes case out in California. She’s taken away the stand. So what happens is the defense puts up the defendant, the defense directs that testimony. Her testimony by the defense took about two to three days. And then the federal prosecutors get a chance to cross examine her or to question her testimony.
The summon substance of her testimony is she’s basically saying she made some mistakes while she was CEO of Theranos—the blood machine company. And she’s saying that due to an abusive relationship she was in with her co-defendant, who’s being tried separately, she also alleges that she had been raped and some pretty harsh and terrible things.
She’s saying these things, they become “evidence in the case.” But it’s for the jury to decide whether or not it’s true. Because as I follow the case, there isn’t any other substantive evidence they’ve put on so far to substantiate those claims besides her testimony. So it’s very difficult in this case to prove that.
In Kyle’s case, there was a video, the jury saw the video, there was a drone feed, there were witnesses who testified to the opposite of what the prosecution thought they were going to say. The witnesses in the Kyle Rittenhouse case said, the victim said, “We did go after Kyle.” That creates a lot of evidence in the favor of Kyle.
Here in the Theranos case, in the Holmes case, I’m not sure what witnesses they’re going to call, the defense that is, is going to get to call to substantiate her allegations. So it’s a very hard road to hold there for her. But I do think, as a former defense attorney, she is a female and she was a young, successful business woman, and I think the jury likes to see that sometimes.
What they, I think, are going for is that she was overcome by other people in her sphere so that she should not be held criminally liable for the fraud charges that she’s been charged with. It’s a defense strategy that people use all the time, and that’s the one they’re exhibiting in the Holmes case right now.
Mr. Jekielek: Well, from what I understand, Sunny Balwani, I believe that’s who worked for her, a business partner. So he’s apparently denying everything she’s saying about him.
Mr. Patel: Well, so he can’t yet in trial. So what happens is it’s a co-defendant case, meaning the two of them were charged together, Sunny and Elizabeth Holmes, and they were supposed to be tried together. But the judge, rightfully so I think, split the cases. He said, “We’ll do one trial and then we’ll do the next trial.” Because the defense probably told him in proceedings that weren’t privy to the public at the time, “We, the defense in the Holmes case are going to blame this person, so we can’t be tried together.”
It’s a decision for the judge to make and for the prosecution and defense attorneys to argue for. I think it’s the right decision in this case. So, while it’s been said in the media that Sunny is denying those charges, he’s not going to be a witness in this case, for sure. So that information that it was Sunny who was forcing her to do X, Y, or Z has to come in through another witness or another piece of evidence, documentary evidence, or video evidence. So maybe they have it, I don’t know. They’re still going.
Mr. Jekielek: No, it’s fascinating. But ultimately, she was in charge, so that’s going to be the prosecution’s key.
Mr. Patel: Well, I think if you just look at some of the witnesses that the prosecution presented during its case in chief, you’re talking about former secretaries of defense, some of the most powerful and successful business men and women in America. She funded it to the tune of hundreds of millions of dollars. She was meeting with these very notable people throughout America, in government and private sector and getting checks for millions and millions of dollars. That’s what businesspeople do.
The problem that the prosecution has alleged in this case is that it’s not that she had a business idea tried and it just failed, like what happens to so many people, that’s not criminal. What they’re saying is that her business idea, the blood machine, she lied about it. That’s what the prosecutors are saying.
They’re saying she knew that the machine and the technology did not work, but she went to investors anyway and said, “No, no, we have this amazing machine. You need a drop of blood and it gives you all this feedback on data, on biology, on testing, on health.” And in theory sounds amazing if you can have a machine that’s about the size of a toaster oven and do that. But the prosecutor is saying, “No, no, she knew the whole time that it was a fraud.” Which is why they’re charging her with fraud in this case.
I think she’s looking at a maximum of maybe 20 odd years in federal prison. But what happens in a fraud case, especially in federal court, is if she’s convicted, the sentence is largely determined by the scale of the fraud, the amount of money. There’s these things called the United States Sentencing Guidelines. It’s basically everybody that’s convicted in federal court, the judge and the prosecutor and the defense attorney look at these sentencing guidelines and they formulate basically a chart that says, this is the range of your sentence.
But there’s a lot of factors in that range. In fraud cases, it’s almost solely based on money. So the more money, the bigger the fraud amount, the more prison time she’s facing, and $100 million plus is a substantial fraud amount.
Mr. Jekielek: So ultimately if there’s reasonable doubt that she knew it was a fraud, she may get off.
Mr. Patel: If the jury believes that, yes. But there’s multiple counts here. And federal cases generally when they go to jury trial, over 90 percent of the time the federal prosecutors achieve a conviction. So it’s not impossible but it’s very difficult. And she’s charged with multiple counts.
So a lot of times what juries do, and I’ve seen them firsthand do it in my cases, is they call they split it. And they say, “Well, we’re not sure what she did, so we’re going to acquit her of these counts, but we’re going to find her guilty of this count or that count.” And that’s still problematic for her because it doesn’t matter how many counts she’s convicted of, the sentencing is going to be pretty harsh.
Mr. Jekielek: Well, so let’s jump to Ghislaine Maxwell. I guess the key person that one would want to hear from isn’t around to talk about it. So, let’s lay out, what is she being charged with exactly?
Mr. Patel: So she’s being charged with some pretty serious… Again, in federal court, she’s being tried across the country in New York. And as everyone knows, she was friends with Jeffrey Epstein, had some business relationships with Jeffrey Epstein, and spent a lot of time with Jeffrey Epstein that’s been widely reported. What the federal prosecutors have charged Maxwell with is, I don’t want to say aiding and abetting because it’s not the right verbiage. But basically, assisting Jeffrey Epstein commit what they had charged Jeffrey Epstein with.
And if we just pause the tape and rewind for a second, remember Jeffrey Epstein was arrested, was in federal detention, and killed himself while pending federal charges were against him. The pending federal charges were serious, involving minor children, involving sexual conduct, involving fraud, and involving, we were never told, but other individuals that Jeffrey Epstein involved in these schemes.
What the federal prosecutors in this case, the Maxwell case, are saying that she was basically one of the head people that facilitated these crimes that Jeffrey Epstein committed. And on top of that, what they’re alleging, I don’t know if it’s true, is that she participated in some of this misconduct or sexual misconduct with underage women. And that’s what they’re alleging. They’re very serious allegations in her case.
Unlike the Holmes case which are serious allegations involving money and fraud, the difference here in the Maxwell case is you’re talking about people, human beings, real victims that they are saying when they were underage, they were victimized sexually by Jeffrey Epstein, Maxwell, and who knows who else. That’s what we’re waiting to see. I think to date, Jan, there’s one victim has already testified and the pilot of the infamous Lolita Express, which was Jeffrey Epstein’s plane, has already testified.
Mr. Jekielek: So I followed that somewhat. And what these people are saying looks really bad.
Mr. Patel: It’s not good. And again, in this case, similar to Elizabeth Holmes taking the stand in her own defense, over there you have a he said she said in terms of, not the fraud, but just she was saying she was abused and possibly raped by an individual in her universe, which is what caused some of her conduct. And which is what she’s saying should excuse some of her conduct.
In this case, in the Maxwell case, the prosecutors are saying she directly participated in it. Now, these crimes happened over 10 years ago, I think over 15 years ago. So I don’t think there’s video footage of it. And that’s not to take anything away from the victims, it’s just very hard to prove as a federal prosecutor based on the testimony alone of a witness that you need to convict somebody and deprive them of due process.
So there’s two kinds of evidence basically, there’s direct evidence and there’s circumstantial evidence. Direct evidence comes in the form of you have a videotape of a bank robbery, that’s direct evidence or you have an eyewitness to a crime, that’s direct evidence. Circumstantial evidence is, you obtain records of flight travel or banking transactions and whatnot and show where individuals may or may not have been at a certain time in history.
Here, the victim in the Maxwell case is saying, “I was victimized.” And the prosecution has three to four more victims who are going to testify that they too were sexually victimized while under the age of 18, which is a federal offense. Substantiating that is very difficult. And I’m not saying they don’t have the evidence; I just don’t know what else they have.
Mr. Jekielek: That’s interesting. And presumably there’s a weight of evidence when there’s multiple people saying the same story, that counts for something.
Mr. Patel: So, that’s a great point. Generally, when you have individuals charged with sex crimes, it’s a one person one victim case, it’s not a years long, I don’t want to call it conspiracy, but a years long charging document. In the Maxwell case, they’re saying she and Epstein spent years victimizing women. And not one, not two, not three, four, and even more women.
So to your point, when a jury hears that she did it not once, not twice, not three times, but maybe even up to four times, the jury is instructed, you basically can’t use one victim’s testimony to convict on another victim, you can’t stack the evidence. Because unless they’re related offenses, what they’re saying is these are separate victims, you have to look at everybody’s testimony separately and alone.
But as human beings, that’s hard to do when you’re sitting as a juror in this type of case and you’re hearing testimony and evidence from a prosecutor about so many different types of alleged sex crimes.
Mr. Jekielek: Well, that doesn’t make a ton of sense to me because doesn’t it explain that the person has or at least allegedly has a history and a-
Mr. Patel: So you should be an evidence teacher in law school. So this is basically hearkening me back to my evidence class in law school, which is critical in trying cases. And the Rules of Evidence are designed for just that. While it might be unfair for the defendant to face multiple victims at one trial, what the Rules of Evidence and the law allows is if it shows a pattern of misconduct or a pattern of behavior that’s the same over a period of time, then you are allowed to bring that information in.
But again, unless it’s directly related to each count, you still have to prove the count separately. That is you can’t use victim three’s testimony, and I’m just using this hypothetical, which was so damning to convict victim one. You have to prove each-
Mr. Jekielek: To convict victim one or to support victim one?
Mr. Patel: Excuse me, to support the conviction of victim one’s testimony, you’re right. In this case, it would be Maxwell who’s charged with multiple counts. So she can’t be convicted on count one based on victim one’s testimony because the jurors believed victim three’s testimony, you have to prove them separately. But you’re right, if there’s a pattern there, the prosecution can ask the judge for certain instructions to the jury to show that this pattern of violence continued over time, to show what we call motive.
Mr. Jekielek: Because it seems to be, isn’t that the centerpiece of the charges?
Mr. Patel: Yeah, and that’s the reason that exception in the Rule of Evidence exists. Is because you have to be able to show intent. And the one way to show intent, what did a person mean to do, is if they did it all the time, then it’s their motive, it’s their MO, it’s their modus operandi as we call it. And you can put that forward to a jury to say, they did this every day for two years and that’s why it’s coming in.
So I think that the prosecution’s theory here is that we’ve got multiple victims who are victimized similarly by the same individual, in this case Maxwell plus Jeffrey Epstein, who’s dead, and maybe others, we don’t know what’s coming on that front.
That’s what I’m excited to see in this case, is how wide are they going to open this case in terms of who was involved. Because as you’ve seen in the media Prince Andrew, Queen Elizabeth’s kid, was caught with photographs of one of the victims. He did an interview in British media which went terribly. And he is since no longer allowed to do any media. But there are serious allegations that he and Jeffrey Epstein were committing the same acts that Maxwell is now charged with with underage women.
Mr. Jekielek: Well, and frankly plenty of other people who are listed on the so-called Lolita Express and so forth, right?
Mr. Patel: Yes. Then there’s the island. I don’t know what federal prosecutors got, what evidence they got, not just from Jeffrey Epstein’s home in New York, apparently, they got a lot. But there was the island that the plane always flew to with some of these victims. And that’s where supposedly some of the acts were perpetrated.
So there’s all this evidence that they need to gather. But it’s also from years and years ago, so it’s a tough case. But generally, federal prosecutors, especially in New York City, do not bring cases that they don’t already know they have enough evidence for a conviction for. That’s just not the practice in federal court. It’s your charge and you take it to a grand jury when you know you have enough evidence to convict, when you have a good faith basis.
Mr. Jekielek: So what is the significance of someone actually being on the passenger manifest? Because this is what the pilot was testifying to. How can that contribute to the prosecution’s case?
Mr. Patel: That’s a great question. So that would be, in my experience, the pilot of the plane where some of these people were transported and or possibly victimized, he would be a critical witness in a prosecution of this magnitude. From my understanding, the pilot in the case testified that he did not see any sexual acts occur on the plane. That doesn’t mean they never happened on the plane, they just never happened on his watch. But you bring up an excellent point.
The manifest is supposed to record in writing and keep forever every person that entered onto that plane to be flown somewhere. So prosecutors probably did in this case, it’s what I would have done, is going back to the relevant time period, and I’m just going to make up a case here. Let’s say they accused Ghislaine Maxwell and Epstein of committing criminal sexual violent acts from 2005 to 2010, well, you go and get the flight log, the manifest for that five year period from his private jet.
The problem with private jets is it’s not like a public manifest. If you take an American Airlines or United Airlines flight or Delta Airlines flight, those records are very public and very strict that you can’t just not write someone’s name on there if they didn’t get on the plane. There’s electronic boarding passes, they’re screening, it’s impossible to hide someone on one of those flights. On a private jet, the security is very different. You’re supposed to write down and record everybody that’s on that manifest.
I’d be interested to hear if this pilot has testified or will testify that those practices were followed. And he couldn’t have been the only pilot because it’s impossible to be the one pilot that constantly flies a jet. So are there other pilots? And what did he see on the island? Did he spend time on the island? And that’s the other cast of witnesses I would be very interested in is who spent time on the island?
I would have put all those witnesses in a grand jury to secure their testimony. And I’d probably also have already talked to all the other people that Maxwell’s evidence led to allegations of sexual misconduct. So you can’t talk to Epstein; he’s dead, but I would line up all the other ones.
Mr. Jekielek: Well, so let’s jump to now, the defense plan. Again, I don’t know what the defense is exactly going to do, but it strikes me there might be some similarities with the Holmes defense and this defense, in terms of trying to shift the blame.
Mr. Patel: Actually, I didn’t really give that too much thought, but that’s a good point. Like the Holmes case, this is a federal case. It’s going to take time. This a long case, I suspect the Maxwell case will take weeks if not over a month to try. So maybe into next year before we get the case to the jury for a verdict.
Like the Holmes’s case, you have two female defendants. In this case, specifically Maxwell, she’s charged with crimes involving sexual misconduct. But what she might do, and we don’t know yet because the defense does not have to ever put forth their defense until trial.
By law, they’re not required to turn it over to the prosecution or the judge, ever. And I believe in that system because it allows the defense to keep its information a close hold and give the defense his fair day in court. You have to disclose witnesses and other things like that to the judge and the prosecutor, but you don’t have to tell them, this is how I’m going to defend my case.
What Maxwell might do is say, “I, a female, was victimized by Jeffrey Epstein.” The advantage she has here is he’s dead, he can’t provide testimony, he can’t counter what she might say he, Epstein, made her, Maxwell, do. Now, maybe the feds have recordings of Epstein that say otherwise, maybe they have documentary evidence that show otherwise, but it’s going to be very hard to counter that narrative if she does it.
But here’s the thing, Jan, for that evidence to come into court, somebody has to say it. So she has to get on the witness stand and say it or the defense attorneys have to elicit it out of a prosecution witness on cross examination, which is almost impossible to do. So unless they get someone to put it into evidence, her lawyers cannot argue that in the closing argument. That’s what some people kind of… Juries are very keen on this, but most people who don’t follow criminal jury trials aren’t.
In opening arguments, you can say almost anything you want because you’re saying, “I believe the evidence will show this.” If during the trial the evidence doesn’t show that, you’re not allowed to argue that in closing. And jurors will hear, “Well, you told me this in opening and now in closing you haven’t argued that, what happened to the evidence?”
So it’s on the attorneys, and in this case the defense attorneys, to come through and put up evidence as to what they argued in opening statement to make sure they can argue it in closing arguments. And then judges won’t let them if they don’t have evidence to support what they’re going to say.
Mr. Jekielek: So what is the defense doing now?
Mr. Patel: So the Maxwell case basically just started, there was jury selection, there was opening statements, and there was the first couple of witnesses for the prosecution. I’m sure the prosecution has dozens of witnesses to go in this case. So that’s why I’m saying it’s going to take weeks if not over a month for the entire case in chief from the prosecution to be submitted.
Then it’s the defense’s turn. Will they do what Kyle Rittenhouse and Elizabeth Holmes did? Will they put their defendant, Maxwell, up on the trial? They don’t have to, but they can put up other witnesses. They can go… And they have federal subpoena power through the court and they can subpoena any witness they want. If they wanted to, they can go subpoena Bill Clinton, if they have enough cause to bring him into court and say he has evidence that’s relevant to my defense. And the unique power-
Mr. Jekielek: Why did you use Bill Clinton? I think-
Mr. Patel: Well, his name’s been thrown around a lot in the media about traveling and being friends with Jeffrey Epstein and being on the island with Jeffrey Epstein. Did he ever meet Maxwell? I’m sure they did. But I’m sure the prosecutors have figured that out. But if you’re a defense attorney, your job is to find any witness who can say anything that allows you to get the evidence in before the jury so you can argue it in closing. And I’m interested to see who the cast of characters is. Maybe it’s Bill Clinton, maybe it’s nobody, maybe it’s high-profile actors.
When you read about this case in the media, and the buildup to this case has been what three, four years coming, right? There’s a lot of people that have been named in the “Jeffrey Epstein world.” Just another example of a high-profile person who is in the mix, I’m not saying he did anything wrong, is Bill Gates—Microsoft founder and CEO. These are high… President of the United States, founder of one of the richest companies on planet earth and most prominent company on planet earth. And supposedly there’s diaries of private clients that we haven’t seen. Who’s in those diaries? Prince Andrew, we talked about him earlier. There’s a-
Mr. Jekielek: Well, your former boss is on the list.
Mr. Patel: He’s on the list too. So is there enough evidence or is there enough cause for defense attorney or prosecutor even, same thing, they’re in the same boat. They can subpoena all these people if they need to, to come in and provide relevant testimony? The testimony has to be relevant, you have to show it to be relevant. You can’t just use subpoena power to bring in whoever you want, that’s not how it works.
Mr. Jekielek: Interesting. So let’s jump to the third case now. So there’s this interesting nuance, you keep saying that these are federal cases. The Jussie Smollett case is a state case. I don’t know why that’s specifically important to you, I’m sure you’ll tell me in a moment. But why don’t you outline what the prosecution’s case here? And it seems to be, again, just looking at it from the outside and having followed it a bit, there seems to be a pretty strong case on the prosecution side there.
Mr. Patel: Yes. And just to remind people, this case has taken three years to get to trial. But that’s because, remember what happened a few years back. Smollett at the time, a few years ago, said they attacked him because he, Smollett was a gay black man. And then later on that evening of the alleged attack, Smollett said they put a noose around his neck and made him walk away with it or something like that.
Fast forward, that case again the two individuals who Smollett alleged beat him up was dismissed because what the Chicago PD and the Chicago investigative authorities found out was that they say Smollett made the whole thing up. And it quickly unraveled for Jussie Smollett. And we’ll get to the media part of this case and why it’s so important in a second.
But what the Chicago PD came in and said was basically, “Not only did we not find any evidence to substantiate your claim that you, Jussie Smollett, were the victim of a hate crime and an assault, we found evidence to suggest that you staged the whole thing.” And that took a while to get through the courts, there was a special prosecutor appointed in the State of Chicago and the City of Chicago for this case because it was so unique and so high profile. And fast forward to today, Jussie Smollett is charged with, I believe, four felony charges.
And basically, the sum total is he’s charged with a hoax. Staging a crime for the purpose of falsely being identified as a victim is a felony in the State of Chicago. And they’ve charged him for multiple counts related to that staging of that hoax. That trial has finally gotten underway in state court in the City of Chicago.
Mr. Jekielek: The thing that I remember from a few years back was the Chicago police chief basically talking about this case and how just… Because they essentially mobilized the whole police department around this case. People not doing a whole bunch of work that probably should have been done at the time but instead focusing on figuring out this very high-profile case, and he was very unhappy with that, if I recall.
Mr. Patel: I think it was a high-profile case, as you said, the media glommed onto this case. Most of the media threw out any objectivity and credibility in their reporting and immediately… Remember there’s always the presumption of innocence. And I’ve always said that no matter what you’re charged with or how badly you’re charged, that’s why I was a public defender and a prosecutor, you’re innocent until proven guilty.
The media jumped in and automatically because it was Jussie Smollett who’s a famous actor and a gay black man automatically said, “No, no, they did it. Smollett’s the victim and Trump’s evil because it was done by people who support Trump.” They wanted that narrative so badly to be true that they jumped on it the instant Smollett filed a claim of this hate crime.
Mr. Jekielek: But just to be fair, there were a lot of people, and this wasn’t just MAGA world people, right wing people, that were just like, “The facts just don’t seem to add up in this.” I remember seeing this.
Mr. Patel: People who were able to keep their objectivity and say, “What are the facts? If this is true, this is terrible. But what are the facts to show that you were the victim of a hate crime and people left you with a noose around your neck in the streets of Chicago? That’s pretty evil.”
Mr. Jekielek: I recall that going out for a Subway sandwich at 2:00 AM on a very cold night, just doesn’t sound terribly correct. This is one of the things I remember—one piece of many.
Mr. Patel: But if you compare, and this is what ticks me off probably the most, is if you compare the way the media treated the Jussie Smollett case with the way they treated the Kyle Rittenhouse case. Look at the Jussie Smollett case, you had Kamala Harris comment that what happened to Jussie Smollett at that time was a modern-day lynching, and the trial hadn’t even started.
Fast forward to Kyle Rittenhouse, when Kyle Rittenhouse gets arrested, you have the, at that time it was the candidate to be president, Joe Biden and Kamala Harris calling his conduct racist, bigotry, and un-American. I just stood up and was like, “What happened to the concept of due process and presumed innocence? Why are we using cases in the media that have not been adjudicated to advance a political narrative?” And that’s what ticked me off the most. They used both these cases for their personal gain. And in both these cases, they were wrong.
Now the Smollett case is just kicking off in state court and it’ll be a much shorter trial, I believe it’ll wrap up this week. But here’s why I think they were wrong, here’s what’s come out already. The police apparently, and the prosecutors have put forth evidence to say that they have a videotape of Smollett recording a practice of the hoax crime.
As a prosecutor, you don’t stand up in court and say you have that unless you actually have that. On top of that, they have text messages between the two Nigerian individuals and Smollett where he basically admits it’s a hoax and a setup and a staged process. Third, you have a check that Smollett cut to the Nigerian individuals to pay them for the hoax. That was cashed shortly after the original hoax incident was allegedly perpetrated. That’s some pretty damning evidence on day two of his trial.
I don’t know what the defense is going to say. And again, he’s presumed innocent. But this case has been so unique and so misapplied by the media and so utilized for political gain that I hope people take a moment to pause and look at the Kyle Rittenhouse case and look at the Jussie Smollett case and look at the individuals, the Don Lemons of the world who said he was texting Jussie Smollett on a daily basis and praying for him because he was a victim of a hate crime, because he was a gay black man in America. And now it turns out all that information is totally false.
It used to be that was the one inviolable truth in criminal proceedings, people did not get involved, they did not make comments because of due process. Because the prosecution has the same level of rights as the defendants in the case. And their case should be tried without media scrutiny. And the defendant should be allowed to defend himself without media scrutiny and false narratives.
And that’s the difference and that’s the main message for today, is people should go out and look at what people said about the Smollett case, then what the media reported then, and what’s to happen now. Which I believe is, he’s going to get convicted.
Mr. Jekielek: Now, I think the president did say something like the jury has spoken or something like that, we have to respect that.
Mr. Patel: Well, right before he said that, he said he was angered with the process right after the… Why would he be angry with the criminal justice system in the State of Wisconsin when 12 members of that jury pool, that community listened to the evidence and acquitted Kyle Rittenhouse. Why would he be angry?
He’s angry because he personally laid claim and interest in the case when it was ongoing a year ago and he wanted Kyle Rittenhouse to be convicted. That’s the most un-presidential action I can think of because it violates one of the most fundamental concepts in our constitution, which is due process and the right to a fair trial and the presumption of innocence.
Mr. Jekielek: What is the defense in this case? The police chief of Chicago several years ago was pretty convinced this was a hoax. Now, the question is is what happened criminal or what is it exactly that’s-
Mr. Patel: So there’s state laws on the books that, and rightly so, make it a crime, a felony to stage a felony. If you go out and portray yourself falsely as a victim, it’s a felony. It’s a law in every state. There’s even a federal version I believe of a similar style of law. So I think the Chicago police chief was right. Because if you remember, the Chicago mayor back then was also involved in this case and politicians were involved and they were supporting Jussie Smollett before the case had even reached trial.
And the interesting thing about the Jussie Smollett case and the Jeffrey Epstein case is you remember, Jeffrey Epstein had reached this whole no prosecution deal back then, and it took 10 years to get past that and to get actual evidence into what he did.
Smollett, similarly on a faster track, they originally gave him a pass. Even after the charges against the two Nigerian individuals were dismissed, they gave Smollett a pass. They said, “No, no, it’s enough, he paid a fine.” Well, that’s not how the criminal justice system works, if you committed a felony, you should be charged. So there is a little bit of a weird similarity there and now Smollett’s on trial. So I think in state court, in this style of case, it’s a much shorter trial, it’ll probably take a week.
But you asked what’s the defense. Well, what we’ve seen so far in the first few days of the Smollett trial is the defense attorney for Smollett has claimed that it’s not a hoax, that Jussie Smollett was attacked by these two individuals, and he claimed that there was a third individual.
So we’ll see if he puts forth evidence of a third individual of this attack. We’ll see how he counters the narrative that there’s a videotape supposedly of a practice go at this hoax, and what he says about the check that was cut by Jussie Smollett to these two Nigerian individuals, who are supposedly going to testify and say, “He, Jussie Smollett paid us to perpetrate this hoax.”
So now the original so-called defendants are going to testify that Jussie Smollett staged the crime. How he’s going to overcome that style of evidence is going to be difficult.
Mr. Jekielek: What would you do with your defense attorney head on?
Mr. Patel: I would have pled him out. I’d have gone in and say, “We don’t want to plead to a felony, is there a misdemeanor on the books so that we can plead to a lesser offense?” That’s how the criminal justice system works. In over 80 percent, 85 percent of cases never go to trial, they’re pled out through the negotiation process.
With the evidence, and I’m not privy to what the defense attorney is or the prosecutors are, but the evidence I’ve seen in February last year is, I would say, I don’t want my client to be convicted of a felony, let’s see if there’s a misdemeanor, misdemeanor assault, misdemeanor style crime that he can be convicted of and maybe sentenced to probation and pay a heavy fine.
Generally, that’s probably what would happen. But because of the high-profile nature of this case, another piece that I want to highlight for our audience is, if he’s convicted, the sentencing. Most of the time, 99 percent of the time in this style case, with an individual who has no criminal record, like Jussie Smollett, he would receive probation. But in this instance if he’s convicted, I think there is a legitimate argument to have him sentenced to state prison.
And here’s why. The police chief said he put 3,000 man hours, 3,000 man hours, not himself, but his team, into investigating the Jussie Smollett hoax. Just imagine what the Chicago PD could have done with 3,000 man hours. Two weekends ago, there were 52 shootings in the City of Chicago, 52. They could have been used to prevent gun violence in the City of Chicago.
Six months ago, a two year old was shot by gang activity and killed in the City of Chicago. So I think when the police, if Jussie Smollett’s convicted, stand up at the end and said, “We could have focused our 3,000 man hours on the crime in the streets of the City of Chicago.” I think the prosecutor can also stand up and say, “Judge, we’ve had to expend all these resources because this individual used his public image, his popularity, his minority status to gain leverage in the media and to perpetuate a false crime.”
I think it is a great argument for the prosecution to use if he’s convicted to say he should do prison time. So I would watch out for that. And we’ll probably have an answer here before Christmas for his case because I think it’s going to wrap up in a week or so.
Mr. Jekielek: So one thing that actually is quite important, just going back to something you were talking about a bit earlier, is in these very high-profile cases like the Rittenhouse case. Obviously the media has probably a profound impact on the minds of the jury. When information is everywhere, the opinions are everywhere, especially if the opinion is basically pushing in a very specific direction in the big media.
Mr. Patel: I think that’s the hardest thing to guard against. I’ve done high profile cases, it’s easier in federal court. And most people probably don’t know this, there are no TV cameras allowed in any federal court in the United States of America ever. There are sketch artists allowed, people with notepads are allowed, there’s no cell phones, nobody can record anything. So you have to be in there to see it yourself and then report on it.
State court, Kyle Rittenhouse, Jussie Smollett, video cameras allowed in. We saw the whole trial of the Kyle Rittenhouse case because it was a state court proceeding. Having a camera before a jury impacts that jury, heavily. And it’s really hard to overcome. You can say, “Oh, ignore these cameras, don’t worry about the media.” But the reality is they’re there, they go home, people are talking about the high-profile case that this jury is sitting on.
The jurors have real lives, they’re not superhuman. They’re married, they have kids, they watch sports, they watch TV, it’s everywhere. The Smollett case is everywhere, the Maxwell case is everywhere, the Theranos case is not as everywhere but pretty close. And what the judge instructs them on is, well, just ignore everything. It’s very hard as a human to just simply set aside what you read in the media.
Imagine if you’re on the Smollett jury and you’re the juror and you say, “I was a juror who thought he was the victim of a hate crime three years ago. Now I’m on this jury and I’m in the panel and charged with finding out if that was an actual hoax.” That’s the problem when the media misrepresent intentionally, I believe so, the facts in a criminal proceeding. You corrupt the jury pool and you corrupt the criminal justice process and you basically destroy due process. And so that’s my biggest problem and reckoning I have with most, not all of the media, but most, in terms of how they handled the Smollett case and the Rittenhouse case.
Mr. Jekielek: Well, this has been a pretty fascinating journey into the mind of Kash on the-
Mr. Patel: I won’t do it again.
Mr. Jekielek: Well, actually I think we’re going to do it again a lot, but anyway. No, so let’s do our shout out.
Mr. Patel: So this week’s shout out goes to Evan Harris. Thanks so much for your support to Kash’s Corner. We appreciate your comments, we read all of them and we look forward to seeing everybody back next week.
This interview has been edited for clarity and brevity.
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