WK POD: The Never Ending Pod-sta Bowl
WK POD: The Never Ending Pod-sta Bowl
Ep. 13: James Broccoletti Enters the WK Dojo 🙏
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- The GOAT of Hampton Roads criminal defense attorneys takes his talents to the W&K studio for an in-depth discussion of his cross-examination, opening statement, and closing argument techniques. At the end, he says "Yeet!" and drives away in his Maserati.
Welcome to WK Pod, home of the never ending podsta-bowl where we discus legal issues. Some of our guest are attorneys, some are not. D not take anything on thi podcast as legal advice. If yo have questions about a lega issue, get your own attorney Peace
Taite Westendorf:Yoooo, here on WK Pod and today is a very special day. We're gonna do something a little bit different. Usually we have very prominent local attorneys, very successful attorneys that join us. But in the spirit of the holidays, we have some local attorneys that aren't quite as successful. They don't even have a podcast. So they were begging us to come on and we graciously agreed. So welcome the gentleman from Zoby, Broccoletti, and Normile. And I'm just kidding these guys
Bassel Khalaf:We have John Broccoletti.
Taite Westendorf:Brew-coletti and Normele. I believe is how
James Broccoletti:We've had every pronounciation you can it's pronounced. imagine.
Bassel Khalaf:We've got James Broccoletti. He's the man. We're being facetious because we're awesome dudes, and he was awesome enough to come on. So if you're talking about Michael Jordans of attorneys, you'd probably put his name on the list of the Michael Jordans. And he also brought this guy Jay Normile that nobody really cares about, but
Taite Westendorf:He's definitely the Will Perdue of attorneys.
Bassel Khalaf:He's cool though. He's good at soccer.
James Broccoletti:Did you grow a couple inches?
Taite Westendorf:The Cliff Levingston, I don't know
Bassel Khalaf:We brought a step stool so you can get to the mic. So James Broccoletti is in the house. Whoo. Whoo. That's awesome. All right. So James, when you walked in, I said this, you're like one of the only guys I see in the courthouse, and I'm like, do I have to call you Mr. Broccoletti? Because you carry like that much clout and status as being a person who's been doing it for decades and, and doing it well. And if there's an young aspiring defense attorney, are probably like, alrigh, well, what's Broccoletti up t. Broccoletti's doing a closin. Pack that courtroom. Everybo y wants to listen to how you o stuff. And I know you don't wa t this whole thing to be us ju t like massaging your shoulde s and telling you how sweet y u are. Is that is that right? I m gonna cross examine you. Is th t accurat
James Broccoletti:If that's all the massaging, we're okay.
Bassel Khalaf:The evening is young. So, alright, cool, cool. All right, let's go. Let's go back and just to the origin stories of Broccoletti. We'll talk about Jay later, maybe in the post credits. But what uh, how old were you when you started? What was your path? Through the ranks of a guy who knows how to be a defense attorney who can kick ass and do a great closing and great cross examination. Just what was your path?
James Broccoletti:So I graduated from law school in'78. And started with the Norfolk Commonwealth's Attorney's office. Because I thought that that was probably the best place to be able to start. In terms of learning. I always thought it'd be best to learn how to prosecute a case and you learn how to defend a case. You learn what to do, you learn the elements, you learn what to look for, and things of that nature. Then I was there for several years, was a deputy. And then the last case I tried was a doctor who was performing second trimester abortions on women that weren't pregnant. And he was represented by Pete Decker. And I went through, I was not married. Had no kids, I knew nothing about ob gyn. Mr. Decker knew nothing about ob gyn either. So we went through this trial together, but I had to go to EVMS. I had to learn about obstetrics, gynecology, trimesters, all these things. And after that case was over, I said, there's just no way I can try any other case that would be similar to this. And so at that point, George Zoby, who was my former partner, offered me a job because he didn't want to lose suppression hearings to me anymore. And that's when I started in '85. And I've been in the same office, the same spot in the same parking spot, pretty much.
Bassel Khalaf:By that Taco Bell.
James Broccoletti:Brand new Taco Bell and improved the neighborhood, the Wawa, it made a huge difference.
Bassel Khalaf:I was, I was gonn say this because you don' really need marketing and peopl know the name Broccoletti. It' weird, because if I, if I googl criminal defense attorney you'll get the page one an we're kind of borderline pag one, page two, depending on ho things are working out, but yo r name doesn't really pop up. It s like you guys don't o marketing. But you can see t the bottom of Google sort f predictive search things. t says best criminal defen e attorney, Virginia Bea h criminal defense, whatever, b t the only person whose name is n there is Broccoletti. And t says Virginia Beach Broccolett, the lawyer Broccoletti. And t's like you don't make the ffort. But everybody knows the ame because you've been at it or a while you've been showing hat you can
James Broccoletti:I've represented grandfathers, fathers and sons. I have a tile person working in the house right now. And he came to the recognition that I had represented his little brother and his grandfather, and just when you're in it for a long period of time, and you just represent generations and generations.
Bassel Khalaf:So Jay, you would say is what? Like the Garfunkel of Simon?
Jay Normile:Better hair.
Bassel Khalaf:Oh your hair is sick by the way. No one can see this with Jay. Jay is a great harmonizer. He can do a lot of good things with his mouth. And he's got great hair. He's wearing. You can't see him because we're only on audio. But he's got a Supremes shirt on and he's got an upwards visor. Anyways. Yeah, no, Jay. Jay, I've seen Jay in court. I'm just joking.
James Broccoletti:I know he's excellent as well.
Bassel Khalaf:Yeah, I know Jay pretty well.
James Broccoletti:We all have our niches and our own strengths. And that's what you have to strive for. And that's what you have to find. And he has his, and I have mine, and you have yours.
Taite Westendorf:We have a lot of law school students that listen to us. And that's a question we get asked all the time is, you know, I'm interested in criminal law. I'm not sure whether I should start off in the prosecutor's office, should I go to a public defender's office. And then a lot of the young people will say to us, well, I feel like I'm more criminal defense oriented, but we'll still encourage them to go to a prosecutor's office. I mean, A. they'll make more money, B. there's probably a little bit more clout behind that. Maybe some more opportunity that flows from it. I mean, when young people ask you that question, do you have any specific advice?
James Broccoletti:No, I think the same thing, I think, because if your goal is to try cases, I think you're going to try more cases by being in the prosecutor's office. And again, I mean, every time a case comes in, and somebody is talking to me, it's always running through my mind about how would you prove this? You know, what are the elements? What are the facts, and by learning how to prove that, and by being able to be in court and to experience that and to see what your shortfalls may be? Or what the shortfalls of what your witnesses or police may be. I think it makes you a better defense lawyer at the time that you then get into the posture of being that way.
Bassel Khalaf:Do you do you field some of the basic questions still, like, how could you possibly represent these people or something like that?
Taite Westendorf:Do you even dignify such a stupid question?
Bassel Khalaf:It's not stupid.
Taite Westendorf:But adults, really?
Bassel Khalaf:I don't think it's stupid. Because, I was, wh n I went into law school, I had o clue what I was doing. And I probably would ask the sa e thing. But once you've learn d the nitty gritty of here's a constitution here's, but I m just curious, because we' e addressed this on our podcast a few times of when somebody ask d that question, What do you sa? Everybody's entitled to a defense. We got to keep t e system honest. Blah, blah, bla. So James, do you have a cann d response? Or are you just ki d of like look you fucking moro
James Broccoletti:No, no, I tell the story about how early on this individual came in. It was very prominent businessman. His son was charged with a very serious offense. He came in, starts talking about the case And he goes, I'm looking fo that loophole. I go loophole That loophole, loophole, what a e you talking about what loopho e? He goes, that loophol, the Constitution? Okay, so I k nd of tell them that story about everybody is looking for hat loophole. I mean, that's hat we're here for. We're her to keep everybody hon
Bassel Khalaf:I was just gonna say, I mean, I remember vividly. When I graduated from law school, I wasn't a great student. So I didn't really have a job coming out. And then I was a magistrate for two years, and I learned elements, and I finally decided this is it, this is what I really want to do. And then Cal Bain scooped me up to be a lawyer. And I'm like, there. And I remember this is so basic and so shitty that maybe I'm ashamed to even say it. But I remember it was Liane Galardi was still a public defender, and she was holding my hand and walking me through cases. And we're talking about suppression of evidence. And my first reaction was, oh, that's it, they just get rid of the evidence and he gets to walk free. That's weird. You know? Well as a magistrate...
James Broccoletti:God forbid you did something wrong by issuing a warrant.
Bassel Khalaf:As a magistrate, you don't worry about you know, defenses or affirmative defenses. It's, you know, there's somebody comes in if upon probable cause, you shall issue a warrant, that's 99% of your job. But the idea that as a defense attorney, okay, the Constitution has been compromised, the police have done a thing, the exclusionary rule comes in, and you do this stuff, and that was so foreign to me and I latch on to that as a sort of a, you know, a sort of notable post to say, you know, if I stray too far away, and I talked to somebody who maybe is like, what suppression that's a thing I can say, Okay, cool. I was that person at some point, right. And I know you're miles beyond that, but I'm sure you talk to people. You got high profile cases all the time. You deal with, you know, horrific fact patterns and you gotta you can only work with what you got sort of thing. I'm sure you've got neighbors who are like, oh, James Broccoletti lives next to me. But I mean, yeah.
James Broccoletti:Can I afford him?
Bassel Khalaf:Yeah, we we say many times go to James Broccoletti, but if you can't afford James Broccoletti, come to us and then but yeah, if you can't afford us, go to Jay Normile. I kid, but
James Broccoletti:I look at it. You know, it's obviously a very serious thing like Judge Lewis granted a suppression motion for us yesterday, and an individual and it was a case where the prosecutor, the police officer, originally talked about seeing a hand to hand transaction. At the conclusion of the cross examination, he admitted he really hadn't seen anything. It was just a hunch. I, you know, I think that's significant. And I think that we do a very, very valuable job in keeping the police honest and what they're supposed to do. Because God forbid that they strayed over that line. And it could be you. It could be me, it could be your children, it could be any innocent person. You never hear about the people that are innocent that are subjected to the unlawful searches, because they don't find anything. But at the same time, their rights have been violated. They have been intruded upon. And so I think that we've taken that position where we just have to litigate those cases to keep the police honest with respect to that and keep the prosecutors honest.
Taite Westendorf:Yeah. Well, you brought up the the suppression hearing you had, and the damage that you did on cross examination, and sort of going back to the the Michael Jordan of criminal defense attorneys. I mean, if there's one thing, obviously, you know the law really well, you've done huge cases, done massive closing arguments. But when people tell me give me that scouting report on James Broccoletti, one of the first things that that pops into my mind is I think you're probably the best cross examiner that I consistently see. I mean, do you have some tablets, principles of cross examination that you go by?
James Broccoletti:No. I try, I guess it's to develop the conversation to a great extent. I mean, to some degree, obviously, you have to be confrontational at the appropriate time. But I think that so much of it is, and let me just go back to be told long time ago, when I was in law school. In the summers, everybody that I was in law school with worked for this big firm or that big firm, or clerked for a judge. I flipped pancakes at the Greek pancake houses in Williamsburg. Because I wanted to be with real people. I wanted to know people, I wanted to be able to talk to people, I wanted to understand people's language. I mean, it's not a premeditated thought. But I'm just saying, those are the people that I kind of wanted to be around. I was around law students all the time. And I think by developing that, and talking to real people, you can develop that conversational aspect of cross and being able to lead people into things that they don't know that they're going down into. You know, like, you've got this. I've got this vision in my mind, where I'm walking down a hallway, and I'm seeing doors that are open, and I'm closing those doors as I go down that hallway. And in my mind, the movies already made. And the questions and the answers are already developed. The script is already developed. I just need to lead that witness from the beginning of that hallway to the end of that hallway. And I do that through that conversational method. And they don't really even know that they're there at the end. So does that make sense?
Taite Westendorf:Yeah, no it does. Is it almost like alright, each witness, here's maybe, the four or five bullet points I'm setting out to make. And I'm going to use this conversational style to try to get to those four or five bullet points rather than here's my list of 40 questions sequentially that I'm going to ask this witness.
James Broccoletti:Zero way to do that. Absolute wrong way to do that. The worst. The worst thing, I think that young lawyers, a lot of lawyers do, they don't listen. Okay. You don't listen. I mean, there's techniques involved in cross, ou know, through Posner, and Dod and all the great people hat have taught cross examina ion through the years. You lis en, and then you incorpora e that answer into your next question, and you loop them. And so you're able to then always ti in with what the witnesses jus said into what the next que tion is, which is a segment, a egue, a conversation, whateve way that you want to describe t. And through that loop, th witness can't then avoid what they just said. So you incorpor te that into the next questio. So they then can't avoid what the answer to the next questio will be.
Bassel Khalaf:How much are you a student of you know the experts because I know with professors, they say, if you can't do then teach. So you got people, I don't know who Posner is. I know who he is in the sense that he does cross examination stuff. And I don't know that he's out there in the streets, you know, whatever you say. But how often are you trying to absorb information from others? And how much of it's just intuition where you're up there, and you're like, you know what, I'm gonna do this because I know what to do. And I'm going to do my best to not ask one too many questions, which is probably that cardinal sin of cross examination is yes, the one question that just tanked your whole case. But yeah, what are your thoughts on that? I mean, you got people who are telling you, hey, do it this way. But you're kind of like, You know what? I been doing it. And I don't know who you are. I mean, do you know Posner on a personal level?
James Broccoletti:Uh-huh.
Bassel Khalaf:You do? What. Nevermind then.
James Broccoletti:No, no, no. Only because, you know, I've been invited to
Bassel Khalaf:I too know Posner.
James Broccoletti:I've been involved in bar stuff. And I've met him in seminars and, you know, drinks together and things like that.
Bassel Khalaf:No disrespect Posner.
James Broccoletti:No, no, no, no. I mean, their theories are great, but you're an individual, and you have to do what is suited to you as a person. Otherwise, the judge the jury, the witness is going to be able to recognize that weakness that you're posing, impersonating, that you're not yourself. And so that's going to come through, so much of the cross is also confidence in what you're displaying, you're controlling the witness, you're controlling the witness by your body language, by your posture, by your questions, by your manner of questioning. All of those things. And so by controlling that witness in that regard, that witness is then... they call it puppy training, you know, right, like, right at the beginning, maybe the first question or two, you're gonna puppy train that witness, so that witnesses isn't going to try and like, fuck with you, I'll use the first word.
Bassel Khalaf:No, I love it. I love it. I love it! Broccoletti uncut. I'm going to say this though...
James Broccoletti:The witness is not going to do that. Because the witness knows that you know. And so the witnesses aren't going to stray from that. So you look for that first question, whatever that may be, I always try and come out of the box with a question or two right at the beginning to teach the witness.
Bassel Khalaf:So a lot of it I mean, I imagine the CIA has methods for teaching people to, you know, get in with others to, you know, bring them in with some honesty, bring them in with some common ground, all this type of stuff as interrogation techniques type thing. I mean, I can't imagine. And of course, the dynamics are always going to be different. You say you have a child victim and a sex assault case, that's going to be crazy. I mean, that I almost feel like you just have to make sure that you're not being mean to the person.
James Broccoletti:Absolutely. You have to speak in the language of the jury, or the judge, you have to speak in the tone and the method and the manner that the jury would. So you can't be arrogant, you can't be confrontational to a particular witness that's sympathetic. You can't be aggressive or you can't be, you know, you just have to speak in the voice of the jury is going to speak so the jury can then understand, because, again, you go back to and I don't mean to digress.
Bassel Khalaf:You're the man digress. Digress all you want.
Taite Westendorf:That's what you're here for. Drop the wisdom on us.
Bassel Khalaf:Don't let Jay jump in. But just...
James Broccoletti:So if you go back to the beginning, you go back to Aristotle. You go back to ethos, and pathos, okay, you go back to those concepts, which are basic and human nature, which every human being experiences. And so when you're doing across a close, a direct, whatever that may be, you always have to keep those things in mind. And so that's part of if you lose the jury, if you're speaking in a voice that the jury objects to, doesn't like, think that you're being arrogant or you're being vindictive, or whatever the word may be, then they're going to tune you out, turn you off totally that way. So you have to speak in that. And you have to be able to sympathize with that. That's why a cross of a kid is just completely different from a cross of a police officer.
Bassel Khalaf:Yeah, I mean, you you don't want the jury to be like, hey, this guy's a dickhead. Right? You want the jury to like you.
James Broccoletti:If they don't like me, they're not gonna like the client or case. They've got to like me, which is why a lot of times, even if the client's not testifying, I'll still try and relate to the to the client as best as I can. Maybe walk behind them, maybe put my hands on their shoulders, maybe, you know, whisper to them.
Bassel Khalaf:Oh, yeah. We've said this a few times. Broccolletti puts his clients in a sweater vest. Is that conscious?
Taite Westendorf:I won't say the name of the specific defendant, but it was a juvenile defendant I can remember and he wore. He had looked threatening n the newspaper photos. And at t ial he looked like Harry
Bassel Khalaf:You don't have to give away your secrets if you don't want.
James Broccoletti:I mean, doesn't that make sense though?
Taite Westendorf:No, of course, Absolutely.
James Broccoletti:So, like I tried a federal case, they were unloading tons of pot from a boat. And you know, I had the youngest client, and there were like three of us. I tried to
Taite Westendorf:Yeah, so it's interesting. This, I mean, it's make him look like he was in grade school as much as I possibly could, because he contrasted so much with what the other people look like. Right. And so the jury recognized tha. It also didn't hurt that I had a Jamaican who asked the judge not a particularly novel idea, right? This idea that you want efore deliberations began, is arijuana illegal. That always elps a verdict. But the poi t is, I think again, you nee to create that impression tha speaks volumes to the jury. the jury to like you. Of cours you want the jury to like y u as the defense attorney. There s more than one way of going ab ut trying to accomplish that and everybody has their diffe ent styles. And some people mig t have a folksier style han others, whatever. Who w re some of the big dogs that y u saw coming up that were influ ntial to you?
James Broccoletti:Well, I look at myself, kind of as a transitional lawyer, like a link between the old school and the new school. You know, the old school being obviously Dick Brydges.
Taite Westendorf:Yeah, I mean, whenever we ask people this question, the two names that always come up are Dick Brydges and then James Broccoletti. Even Cal who's probably of a similar generation to you had said, even though he's close in age to me, James Broccoletti. But I guess t e words that I hear associa ed when I hear the stories about Dick are sort of like th s grandfatherly, I'm going t spin a yarn folksy sort of gu, which I wouldn't describe you in that way.
James Broccoletti:No, I mean, it was a different time, a different place, and different people. You know, he related to juries in a different way with respect to that. I like to think that I'm a combination of that ability to relate and also someone who knows what the law is, and is able to relate to that. And capitalize isn't the right word, but incorporate that maybe it's a better word.
Bassel Khalaf:How much do you need to say up front because we've brought this up a few times on our podcast, but like, being woke, or this woke? Like this isn't cool to say anymore. We can't
James Broccoletti:Woke? talk about people who have this view of the world.
Taite Westendorf:Sort of a pejorative term to describe I guess, mostly a millennial generation where they're extremely sensitive to.
Jay Normile:PC
Bassel Khalaf:Yeah, very PC, and
Taite Westendorf:PC culture. Yes. Politically Correct. And
Bassel Khalaf:The look on your faces.
Taite Westendorf:Look, let me give you, let me give you an example of what what what might be considered wokeism in the legal context. So I wrote a blog post about this. There was a dean at Harvard Law School, Ronald Sullivan. And he was defending Harvey Weinstein, he was one of the criminal defense attorneys. So sort of the ultimate boogeyman of the metoo moment, probably rightfully so But a bunch of the law students protested. And they said, we don't want this guy associat d with Harvard Law School. e don't want him giving us diplo as because we disagree with wha he's doing. And he's violatin metoo principles and it's lik holy fucking shit. Harvard aw Students don't get it, they don't understand? It's sort o the woke movement run amok I guess.
Bassel Khalaf:But I guess you're gonna look out into the jury crowd and you're gonna see a 20 year old, you're gonna see a 25 year old, you're gonna say these people are like, off of college. It's springtime. So they're on spring break, and they're here. How much, I guess what you'd say it's just pandering to the audience because you might have people where it's like, okay, you can't use certain terminology now. Okay, now, these people want to say you can't assume my gender, you got to know my pronouns. And is that just like too much? Or is that to get into?
James Broccoletti:I don't know, I think the way that I would han le that...
Bassel Khalaf:What do you think Jay?
Jay Normile:Watch yourself.
Bassel Khalaf:You're gonna get cancelled real quick.
James Broccoletti:I think that the way, from my perspective, okay, is self deprecating humor. I make fun of myself. I do that often in front of a jury, in terms of my inabilities, my frailties, my weaknesses, things of that nature. And so I think that they then can look at me in in a different light than that in terms of being, you know, professorial, or know it all, or something like that. I think I try and expose what my weaknesses are to then make fun of those weaknesses. So it's easier for them to relate to me in that part. Does that make sense?
Taite Westendorf:Yeah, no, it makes perfect sense. I think self deprecation is something that's well used by any good criminal defense attorney, for sure.
James Broccoletti:I mean, you have to, and it's true too.
Bassel Khalaf:How often do you end up on a case and you... what I see in court, as far as what you do is typically big cases, high profile cases, I don't see James Broccoletti doing the DUI docket or
James Broccoletti:I haven't done that in 35 years.
Jay Normile:Once again, that's why I'm here.
Taite Westendorf:I mean, does anything other than that super challenging case just bore you to tears? You're at a point in your career where you can pick and choose what you want to do.
James Broccoletti:Yes and no, I mean, like the case that we won yesterday in front of Judge Lewis, when he granted the suppression motion that was like a, I don't mean to use the word routine. But you know, here's police officer sees A, B, and C. The car's stopped, drugs are found. We handle those every day of the week in that regard. But it's still challenging because I want to win that case. You know, I want to win. And so, even the mundane, there's still victories to be had and challenges. And even in those cases, in terms of sentences, reduction in time, you know, whatever it may be. So there's always some hurdle or some challenge that I think that's in a particular case. Yeah, very happy.
Bassel Khalaf:So I mean, but what gets you amped at this point, because you do high profile, national media coverage, all this stuff. You take these cases on. I mean, it sounds like winning a local suppression hearing in front of Judge Lewis made you happy, which is a great thing. And I'm gonna say this too
James Broccoletti:The repercussions from that. All right. So last week, we tried a murder case in Accomack, okay. Kid had, you know, he had two children, been in jail for nine months awaiting trial. I thought the case was very weak, which is why we went with the judge trial. And he was acquitted. Now, that's one of hundreds of homicide cases that I've had, but recognizing what that did for that kid and his family. In the ripples. You know, I was talking about those, how that spreads out to the community, how it goes to his children, how it goes to his mother, how it goes to everybody that's associated with him. You gave that person a life and you gave those people that are related to him a life. That's what kind of keeps you going.
Taite Westendorf:Yeah totally. Obviously I haven't been doing it as long as you but when I get into one of those darker moments where maybe you haven't had a few victories, or you've had a particularly rough couple of cases, I like to go back to those moments and think about them. I mean, do you have any sort of signature moments that in your deepest, darkest times you go to.
James Broccoletti:Yeah, I think, you know, the most recent, probably the most recent one that's of any great significance that you would probably remember would be the, the Malick trial where there was a 24 year old cold case and a child's body was found in the dumpster with garbage bags with his fingerprints on the bags.
Bassel Khalaf:Yeah, I was in court for that.
James Broccoletti:Right. And he admitted...
Taite Westendorf:There was the the deathbed confession. And then there was the issue, right, as far as proving when the fingerprints were left.
James Broccoletti:Right. But that, he had a child that was severely disabled, and he cared for that child, the wife went to work, and he was responsible for that child. He'd been in jail, what, a year and a half or so two years waiting for the trial. And to this day, I mean, just the other day, you know, I got a Christmas card from him with a picture of him and the son who's 14 now and the wife. And you just think about what you were able to do for that family. I mean that was a great trial. I mean, to put that guy, the best part of that trial was...I don't know if you saw that part. But when the brother of the person we were accusing of committing the offense was on the stretcher, we got him there by ambulance, get the oxygen tank, and he was getting ready to be rolled into the courtroom to testify. And the nurse goes wait a minute, the oxygen tank just ran out.
Taite Westendorf:It's like if you read it in a movie script, you'd be like, that's too over the top. You gotta take that
James Broccoletti:Judge Frucci goes well, we'll come back out. tomorrow. He may be dead tomorrow! We can't! We've got another tank downstairs and we brought the other tank.
Bassel Khalaf:I would like to say we've had moments like that where we have no...
Taite Westendorf:Never one quite that dramatic for sure.
Bassel Khalaf:Goddamnit.
James Broccoletti:But I mean, but yeah, so when I you know when I get beat up and I get beat up, we all get beat up. But you just can't lose faith and you can't lose hope and you can't lose a vision of what you're able to do and what you're able to accomplish and what those moments that you do accomplish something big in the effect that it has. And that that's you know, It sounds sappy.
Bassel Khalaf:No, I was gonna say putting you as a guy who everybody knows. There's no prosecutor, new, experienced whatever is going to get a Broccoletti case and be like, oh, I don't know who that is. Everybody knows Broccoletti. Most people know Westendorf and Khalaf, because we're very talented mofos especially in Virginia Beach. But I imagine every now and then you get somebody who is out of their depths. And maybe you're just communicating with the prosecutor and you're like, I wish a motherfucker would. Do you ever get those gangster moments or no?
James Broccoletti:Say what now? You lost me.
Bassel Khalaf:I'm saying like, Do you ever get a prosecutor who is maybe out of their depths? And you step up, and you're just like, ohhhh, you're in for it? Like, do you ever get those? I don't call it a Perry Mason moment. I'm talking about like a moment where you know you have the case. And they maybe don't know that they don't have the case. Is this a thing? Or is this just me fantasizing about you.
Taite Westendorf:He's writing this in his James Broccoletti fan fiction.
Bassel Khalaf:50 shades of Broccoletti.
James Broccoletti:This is this transitional thing that we were talking about before. So I learned, my partner, Gerard Zoby was partners with Pete Decker. The original Pete Decker. Okay. And Pete taught Gerard and Pete taught Gerard a lot about people and a lot about prosecutors and things like that. And I learned from that. And I think if you get in that position that you're talking about, you have to recognize you're going to have another case with that prosecutor. There's going to be another day when that prosecutor is going to have you by the
Bassel Khalaf:Yeah, by the cajones. What you're talking about, like the scalpel or the hammer. And you're probably a guy who occasionally could hammer if you wanted to but you decide all right, I'm gonna be surgical about it, or you know, what would the word be, tactful about it? But I just I wonder because you get these maybe younger, ambitious prosecutors and they might think alright, well, Broccoletti's on this case, I can't wait to beat him because as a prosecutor, inherently, you have the upper hand. Sure. Because otherwise you just drop the case, if you think you can't win it.
James Broccoletti:I wish more of them would do that.
Bassel Khalaf:Yeah, let me just segue from my rant that makes no sense to this because we practice mostly in Virginia Beach. I've said mean things about Chesapeake many times...
James Broccoletti:The House of Pain.
Bassel Khalaf:The House of Pain. Jump around. Alright, so I don't know what I was gonna say. Taite, ask a question because I just like blanked.
Taite Westendorf:Oh, boy. Oh, boy. Alright, so Bassel blanked. Well, I was thinking about so...
Bassel Khalaf:Is justice different in Chesapeake than it is in Virginia Beach?
James Broccoletti:I think justice is different
Bassel Khalaf:It's malleable.
James Broccoletti:It's judge per judge. And just let me take a second. To say that we lost one of the great jurists that I've ever known yesterday. I thought Judge Lowe was an extraordinary human being. I thought that he was as fine a man as you could find on the bench. He was compassionate. He understood people. He was an everyday person. He wasn't, you know, on his high horse at all. And it's just a great loss for all of us. I just wanted to say that.
Bassel Khalaf:He was a fun guy...
Taite Westendorf:Well said.
Bassel Khalaf:I feel like if he's watching from whatever, afterlife or whatever you gonna call it, he would appreciate. Judge Lowe, you're a good dude mofo.
James Broccoletti:So justice is different in Virginia Beach. I mean, how many Circuit Court judges we have seven, eight.
Taite Westendorf:Eight
Bassel Khalaf:Who's your favorite?
Taite Westendorf:No comment on that one. Did you get to go on any of these Myrtle Beach trips I've been hearing about since Judge Lowe passed? I've heard I think about a dozen stories.
James Broccoletti:I've been on Myrtle Beach trips. We've been on a lot of trips.
Taite Westendorf:Alright, fair enough. We'll wait for that until we're off mic.
James Broccoletti:All very enjoyable. All very collegial. Okay. All very athletic oriented. So
Taite Westendorf:Very euphemistic.
James Broccoletti:So I had I had a great great dear, dear friend by the name of Danny Shipley. And I don't know if any of you remember Danny. Danny passed a couple years ago. And Danny was was, again, just as funny, but as an astute a guy as you can imagine. And one of his favorite sayings was, you know, practicing was like 95% luck and 5% skill and then taking credit for the 95% luck. Okay. I mean, look in Virginia Beach, or anywhere the judge you draw makes such a difference.
Taite Westendorf:Oh, absolutely.
James Broccoletti:And it shouldn't be that way. It shouldn't, but it is, and so you have to be able to recognize who you're in front of, and then take advantage of whether that particular judge's traits may be and what that particular judge likes or dislikes.
Taite Westendorf:Well judges are going to be extremely important regardless of what the status of jury trials are. But we talked a little bit before we we started this about the new laws going into effect July 1 with respect to jury sentencing and whether there's going to be an uptick in jury trials. I almost feel like I was a part of this generation coming up, where everybody was scared, so scared shitless of going to jury, a lot of people didn't get jury skills. I mean, I felt like of our peers in the public defender's office, I was probably about as aggressive as it came with going to jury trial. And I had maybe one or two a year.
Bassel Khalaf:Let me jump in real quick. My mom was a prosecutor in the Los Angeles, whatever, prosecutor's office, and we're talking about juries, and she's like, do the jury and I was like, it's not that easy. I got to prepare it is a very, very high stakes. And she said, I used to just do, you know, I have a docket and somebody is sick, and they pass me the file, and I'd see what the charges and I go in and do an opening. And then we do it and we're done. But when you have Virginia being that anomalous entity where the the jury gets to sentence and the stakes are way higher, you know, we might do two, three a year if you're having a good year for juries. At least for WK, James Broccoletti might do more than that. But other jurisdictions, you can run with a jury like it's a misdemeanor docket, because the stakes aren't as high and it seems, when I say other jurisdictions, I'm not talking Virginia, I'm talking California where my mom practiced. But she was basically like yo, y'all are bitches. And I was like, Mom, stop using those words, and she was like, fuck you guys. And I was like, stop mom. Anyway, so she would say, like, just do the jury trial. And I was like, okay, so we put on a few jury trials. And my mom told me to. What do you think about that?
James Broccoletti:See, I looked at it a different way. I thought that I had a much stronger basis to try jury. I think I mean, that's not the right way. I think that if I was in a trial, that I thought that I had the advantage because I thought that I would be a better lawyer than the prosecutor who was against me. Because I had more experience. And I just thought that I would be a better lawyer. And so I thought that I would have the opportunity to be able to present a better case to a jury. The only cases that I was concerned with were drug crime, drug trials, just because, you know, looking at five to 40, juries in Virginia Beach would hand out 20 or 25, and you can't. And I think I still have the record for the for the highest jury verdict ever. In Virginia Beach, I got 90 years and a $500,000 fine.
Bassel Khalaf:And because people who don't do lawyer stuff, listen to this, sometimes. You can say life, but could you send a message as a juror? And I don't know the answer to this. And I probably have no, you know, you probably don't know any better than I do on this. But if I was a juror, and I was like, I gave him five quadrillion years. Is there a reason you can't do that?
James Broccoletti:(Puzzled Expression)
Taite Westendorf:He's saying if it's say for robbery or rape. Five to life, right. If you're the jury, being that a trillion years is less than life, to send some sort of a message?
James Broccoletti:I don't know. I think the...
Taite Westendorf:Great question Bassel. Hard hitting.
James Broccoletti:I don't know the answer to that. You stumped me on that one. But I, you know, I just thought that trying a jury, I was never afraid to try a jury.
Taite Westendorf:And I guess where I was going with this before Bassel interrupted with his gibberish was do you think maybe any of that came from when you were practicing. And you were doing juries before. Like mid 90s, there's a lot of big changes. And so I mean, do you think that maybe had something to do with the fearlessness that you have about taking a case to jury? Because I'll tell you, I, I really think it's ingrained in a lot of lawyers over the past 20-25 years, that you're crazy to take a criminal case to a jury.
James Broccoletti:Maybe. It just may be the perception that they have, and just the talk that all lawyers have about oh, you know, you don't want jury sentencing. I remember before, before, what was it '95 when before we had bifurcated trial, right? I mean, you try a lot of cases because you wanted the jury to sentence because they didn't know about what the defendant's criminal record was at that point. Billy Robinson, you talked about, you know, some of the people that I learned from. Billy, Trevor's dad, Billy was as articulate and as smooth. He could make his speech about the Magna Carta seemed fascinating, which is a very difficult thing to do. Okay. But he was as articulate and brilliant, Harvard educated. And he would want juries, because he felt that he could get a better sentence out of a jury, then you could have a judge in a particular case.
Taite Westendorf:Yeah, I think the thing that scares me...
James Broccoletti:I tried those cases all the time, before we had bifurcated so maybe you're right.
Taite Westendorf:It just seems like. Things are gonna change. But there's this very narrow window it feels like where you're not taking this massive risk, because just for instance, a malicious wounding case. A guy with no record. Malicious wounding, somehow if you take it to a jury, it transforms it into a mandatory minimum five year crime if the jury finds him guilty. Right. And that's a scary thing.
James Broccoletti:Right. Right. So I think that there going to be few cases that you're going to want a jury to be sentencing. But I mean, I'm not saying that there's not going to be any. I don't think that you can say with any degree of certainty, there's a bright line rule that you're saying, No, I'll never try, you know, have a jury sentence. I think there may be some circumstances where there's no mandatory minimums. And it's say where the elements may be proven, but there's some sympathetic aspects to the case and mitigating evidence. It's something you always have to consider.
Bassel Khalaf:I was gonna say this. So my two favorite parts of a criminal case would be cross examination of the Commonwealth star witness, victim, whatever you want to call it. And then the closing, closing arguments always a beautiful thing. Do you agree with that? Are those the two most interesting?
James Broccoletti:The saying that I believe in is, you cross for dough, and you close for show. Okay, you win the case on cross examination
Taite Westendorf:Interesting.
James Broccoletti:I think when I was young, I think I lost a lot of cases, because I would do something stupid after the cross, either put the client on, put witnesses on, put a defense on.
Bassel Khalaf:What's your percentage for putting a client on? In a he said, she said. I know you're talking like, we're just butting heads at the 50/50 mark. But do you have like a hard, fast rule that can only be bent?
James Broccoletti:No hard and fast rules. You can't have hard and fast rules. It's, you know, a lot of times it's gonna be gametime decision. Obviously, you prep the client to testify, you prep the client with the cross, and things of that nature. But again, you can't predict what's going to happen because you don't know how good or how bad that particular witness is going to be. Nor have that jury is going to be able to react to that particular way.
Taite Westendorf:Do you even come in with sort of a default position? If someone were to ask me to describe my position on whether the client should testify, I would say my default is I'm inclined against it. But I can be persuaded that there's a convincing reason.
James Broccoletti:Yeah, I think, again, let's assume that you, you know, you do a good cross, you've got some really good things to be able to talk about. And then you put on a defense. You've heard of primacy and recency, again, which is part of what are our sciences, so to speak. Okay, the last thing the jury is going to hear is going to be what your defense is going to be, whether it be your client, whether the alibi witness or whatever the circumstance may be. You could have done a great cross, then you get to that defense, and that defense has holes, has problems, has issues. The jury is going to remember that failure of the defense. And so you've washed away all of the reasonable doubt that you've created in the cross. And so you've lost everything that you've worked for. So my default position is I mean, I've won a ton of cases without any evidence, zero defense. You know, one of the best ones was the school board case, where they indicted two members of the Virginia Beach school board. Sonny Stallings had one, I had the other that were charged with malfeasance. You know, voting for money to be spent and stuff like that. But the point was, we put zero defense on. Zero. Because they just hadn't proved anything. And I think you do much better in those circumstances.
Bassel Khalaf:We were talking about the idea that you shouldn't talk to media or you should talk to media. And I think the general rule would be don't talk to media unless you think it could benefit your client because your clients interests are always...
James Broccoletti:But you should not talk to the media unless you know your client's name. We can say that.
Bassel Khalaf:Do you have a story where you fucked up and...
James Broccoletti:No, No. A close friend.
Bassel Khalaf:Was it Jay?
Taite Westendorf:I won't name names, but I was in court yesterday watching a prominent local defense attorney who went through a 20 minute sentencing argument referring to his client by the wrong name the entire time. Anyhow.
James Broccoletti:That's rule number one, okay. Or rule number two would be know that the person standing next to you is your client. I have seen cases where either the prelim is going on or some some misdemeanor trial is going on. And the client is tugging at the guy, tugging at the lawyer, tugging at the lawyer, and lawyer says shut up, shut up, shut up. And finally the client says, Judge, I'm not John Jones. They look over and look over and they go, oh, no, it's not. I've seen that happen a couple of times?
Bassel Khalaf:Shut up John Jones.
Taite Westendorf:Well, I know you've talked to the media in some of your cases. Do you ever consider that sort of part and parcel of the representation that I'm protecting this person's image in the media? And that comes with the price of James Broccoletti?
James Broccoletti:I don't think so because I don't think people look at it to that extent. I think people look at it to the extent that I'm just a mouthpiece in that regard, and I don't think it matters one way or the other. I don't think I'm influencing the jury one way or another. I don't really think that has any impact.
Taite Westendorf:Yeah, I mean, I just try to keep my mindset on every decision has to be made on what's in the best interest of the client. And it might be in the best interest of Westendorf and Khalaf, PLLC, to have my face on television. But is it accomplishing anything for this guy that, you know, I'm protecting his interests?
Bassel Khalaf:Then it becomes this blurred line of the client wants you...We had a recent one that was allegations of animal hoarding. And this person who I think is a very intelligent human being. There was going to be a media narrative. And I decided that I should intercept that media narrative, because the media narrative would have been like, this person has just victimized animals. But the reality is, this person cares about animals deeply, has spent, you know, a massive percentage of her income on animals, and she actually cares about animals. So I don't want to name the person, although it's pretty fucking easy to cross reference what I'm saying with the recent news. But that person, I kind of felt like she appreciated the idea that I would go out, pursue the reporter, and inject statements that were not inaccurate. You know, statements that would help her. So you're kind of thinking like, as an attorney, you got to look out for your client's legal interests, and their best interests. And then you ask yourself, what are the best interests? Is it getting a not guilty? What if he had a client who was you know, I'm a political zealot, or I'm somebody who needs to just have my voice heard. So I'm going to fight and then I'm going to say at allocution, XYZ. I mean, at some point, the the idea that there's some mold for, here's what good defense is, gets kind of thrown out the window. And when you have a client who's a renegade, somebody who's going to be off the wall. Have you dealt with that at all, where you're just kind of like, Hey, you know what, this would be the approach if you were not a renegade, but you're a giant renegade, and I love you for it, and you're a political beacon of hope for whatever fucking thing you're advocating for. And I'm going to respect that. And I've gone on a rant. What do you think?
James Broccoletti:Well, I think that the point there is, then you just go back to the basics, and you got your just stock answer. Okay. You know, we're not guilty, they have to prove this. It's their burden. I think when you get into that spot, I don't really talk about the facts. I don't think that that's appropriate for me to talk about the facts about a case.
Bassel Khalaf:Sorry, I'm Bassel Khalaf reporter, and I'm like, hey, what happened with your case? You've got canned lines that you can that are malleable.
James Broccoletti:At the conclusion of the case, I think that's a different story. Because then I think that you've gotten the verdict. And you can say, well, the jury obviously found that the prosecutor didn't prove this, because of this, this, and this things of that nature. But at the beginning of the case, I think it's a different posture that you have to take.
Bassel Khalaf:They pled not guilty for a reason. And here's blah, blah, blah. And at some point, you're just kind of, I don't want to say pushing a blank narrative. But this thoughts occurred to me before where if you had a bad attorney who doesn't know what they're doing, like you might be better off with somebody who has no clue what the case is about, let's say you have a closing argument. And there are lines that are always going to work, like the government has to prove their case beyond a reasonable doubt, and they didn't do it. They had their chance. It's come and gone. My client's been sitting in custody, but you know, here we are. And that is applicable to any case.
James Broccoletti:Sure, I think, I have very much. I think I've developed over time, a template, if you will, where you can then plug in to that template, what the facts are, what the circumstances are, what the defense may be.
Taite Westendorf:Alright, give us your secret sauce.
Bassel Khalaf:How about this? Bassel's accused of killing some 17 year old girl.
James Broccoletti:The bastard deserved it.
Bassel Khalaf:Can you give my closing argument right now?
Taite Westendorf:The last closing I did I broke out the boat analogy for reasonable doubt.
James Broccoletti:The boat?
Taite Westendorf:Yeah, reasonable doubt.
Bassel Khalaf:Let us school you on something James.
James Broccoletti:I'm ready.
Taite Westendorf:Okay, I described it as, in order to get beyond a reasonable doubt. It's like taking this boat across a large body of water. And it has to be a very sturdy ship. It doesn't have to be completely airtight. But it has to be pretty damn close to it. And maybe you can pop a hole in the hull or whatever. But maybe you can paper it over with other evidence. And so in that specific case, it was a miracle we won that case...
James Broccoletti:You did a great job, it's not a miracle.
Taite Westendorf:But anyway, it was sort of there's no fingerprint evidence on the gun, there's a hole in the boat, the boat is starting to sink. And then there's no DNA evidence. There's that sort of thing. And then we had the Commonwealth's ship was sunk at the bottom of the ocean. And it was cheesy, but they loved it.
James Broccoletti:It's not cheesy. It worked. Anything that you give them to create a vision. Right, okay to put into their mind something that they can they can relate to, something they can see, something they can feel.
Taite Westendorf:To that end, sort of talking about creating this visual picture, something that's become almost a matter of course for prosecutors are these PowerPoint presentations in closing. Is that something that you even consider messing with?
James Broccoletti:It's what we talked about at the beginning. You have to be yourself. And you also have to recognize what your weaknesses are. And so what I try and do in the context of the jury, is to just make fun of myself that I can't operate that sort of thing.
Bassel Khalaf:I think that's a great point, though. Because what if the research showed that PowerPoints are 80% more effective than not PowerPoint? At some point, you've got to be flexible?
James Broccoletti:That's true, okay. But at the same time, I've never presented a PowerPoint, okay. I just haven't. I've used documents, words, visuals in that regard to try and relate to them. Or if the prosecutor uses a PowerPoint, I try to use their PowerPoint against them. I mean, I think one of the strongest things that we can do.
Bassel Khalaf:Sorry, how do you do that?
James Broccoletti:That just in terms of what they've...
Bassel Khalaf:Talk about how this is theatrics?
James Broccoletti:Well, yeah, or that the points that they've made in there, how those points may be actual weaknesses, as opposed to strengths of what their case may be. Okay. A lot of times, I'll get up there and say, they just conceded to you that there's a reasonable doubt, and they showed you there's a reasonable doubt. Because if you can't create a reasonable doubt in your opening, if you can't create an open mind in your opening, you're going to lose the case. The research also shows that, what 85%, of the people make up their minds after the openings. And so you just can't go up there and do a tap dance. You've got to be able to establish something that keeps that juror's mind open and saying, Hmm, maybe there are two sides to the story.
Taite Westendorf:Yeah and like you were talking about earlier with primacy and opening statements being incredibly important. So, the way it gets taught in law school is almost, well you can't argue and it has to be almost just a recitation of the facts. If you're doing it right, you're not even toein the line, you're flying over it
James Broccoletti:It's not opening statement, it's opening argument, right? I mean, this BS about it's a puzzle, and we put the pieces of the puzzle together. And it's a road map. I mean, I love it when they start talking like that. Talked about nothing.
Bassel Khalaf:Do you do college courses? Do you teach at all?
James Broccoletti:No.
Jay Normile:This is it.
Bassel Khalaf:Did you teach Jay? Was he sitting in his little pantaloons?
James Broccoletti:Jay is unteachable.
Bassel Khalaf:Jay's a dirty dog.
James Broccoletti:But I've been to a lot of courses. I mean, when I was young, I went to multiple cross examination courses put on by the National Criminal Defense College in Georgia, where they would hire actors and actresses. And they would portray roles, and they'd give you a script. And let's say you had a robbery. And sometimes the victim would be female. Sometimes it'd be an older male, be different people. And then you would do a cross and that person based upon that script, and they would videotape you and then critique you. That was hugely important.
Taite Westendorf:That's fascinating.
James Broccoletti:It made a big, big difference in learning.
Bassel Khalaf:You had that case. It's legendary. It was the cop one. It was your investigator went in an elevator and did some bullshit. Is that ringing a bell? Taite, bail me out here dog.
Taite Westendorf:Well, I remember the case with the investigator where they did the newspaper article that was related to the case he was talking earlier. Your investigator found the brother, right?
James Broccoletti:Correct. Yeah. Yeah.
Taite Westendorf:Is that the one?
Bassel Khalaf:I think so. So what do you got as far as investigators? You got a guy who's just like on call?
James Broccoletti:Well, no, he rent space from me upstairs. He was a former NCIS agent for 28 years.
Bassel Khalaf:Can we say his name?
James Broccoletti:Sure. Rod Budd. Great, great investigator. Super guy.
Bassel Khalaf:What's up Rod Budd? Come work for WK.
James Broccoletti:He's recuperating from knee surgery now, but super guy. He was NCIS for 28 years. And I won the only marriage fraud case ever in federal court, and he was the investigator. And after that, he quit and start to work for me. Great guy, fearless. What's interesting about the Malick case that you talked about, is that he applied for a job with the Virginia Beach Police Department as the cold case detective, and they turned him down. And he found people in that case that the Virginia Beach Police couldn't find. That's how good he was.
Bassel Khalaf:That's huge. We got some public defender investigators. I'm not saying disparagingly at all because they do a great job. Miss Williams does wonderful work for us. But yeah, to have this national coverage, high profile case and your investigator just comes through with a haymaker, that's got to feel good, right?
James Broccoletti:Oh, no, it's got to feel great. No, it's what felt best. And I don't know if I should say this or not, it's a matter of public record. What felt best was when the prosecutor stood up and said, I need a timeout, because I didn't know anything about this witness. I mean, that was very satisfying at that particular point.
Bassel Khalaf:What do you see when you see the new school coming up? Taite and I might be probably new school to you. Taite's less new school than I am. But are you watching the new people coming up and thinking like, yo, these fucking idiots don't know what they're doing? Give me the real? And who sucks?
James Broccoletti:No
Bassel Khalaf:Tell me. Prosecutors, defense attorneys.
James Broccoletti:No, of course, you know, you're sitting there, and you're listening to things and you say this has real potential. I mean, a lot. I can't tell you how many people call me and ask me for help for advice for things. And I'm glad to do that. I mean, I've done that for anybody. I've always done that. I mean, judges call sometimes, you know, I'm not at all adverse to that. And I look, I look at my role as trying to move from one generation to the next generation, and to pass on whatever, little information or help that I have to somebody. And so a lot of times, you know, if when I see a case, I'll go up to that person and say, God, that was great. You really did a good job, but maybe there's this. I will never go up to somebody and say, that was terrible. I would never, ever do that.
Taite Westendorf:Hey, you gave me a nice compliment early on an ID suppression issue I did and it was much appreciated coming from you. Thanks for that back in the day.
James Broccoletti:I think that's important. Okay. I mean, I think that we all have an obligation, you know, and I don't mean again to sound sappy about things, but I think we have an obligation to the profession, in being able to pass on and be able to help each other because we're in it together.
Bassel Khalaf:It's an acknowledgement that you're the man, but I had a court of appeals case, it was Fountain versus Commonwealth. And I won. It was my first court of appeals appearance. And then I remember there was some public defender conference CLE thing afterwards, and you had given me a lot of praise to my boss, and that meant a lot cuz Broccoletti thought that I did a good job. I did a good job. I won so whatever..
James Broccoletti:I think that's important.
Bassel Khalaf:I just need to be distinguished from like the, you know, the Jay Normiles and all that type of stuff.
Jay Normile:That's impossible.
Taite Westendorf:You did a good job and people like you.
Bassel Khalaf:People like me. They think I'm funny.
James Broccoletti:I just think that's important.
Bassel Khalaf:But yeah, somebody was like, Oh, Broccoletti said this, and I was like, whatever, I don't care.
James Broccoletti:I taught a lot of courses for the for the public defenders. You know, I've put a lot of time into doing that. You know, I've taught courses with judges, I used to teach courses for the prosecutors up in that top dog up in Williamsburg, whatever that thing was called. I just think it's there are concepts that are universal to all of us and if I can go to a prosecutor, if I can go to a judge, and I can instill in them something that's going to make them say, huh, I hadn't thought about that before. And that helps us and that helps our clients. And I think that's a service to everybody.
Bassel Khalaf:Do you ever meet anybody besides me and Taite? Like where you look at them? You're like, Oh shit, you got the intangibles. You got the Tim Tebow. You got the all this stuff.
Taite Westendorf:Tim Tebow? He's out of the NFL.
Bassel Khalaf:He had intangibles. He was not quantifiable.
Taite Westendorf:He didn't have the intangibles or he has the intangibles?
Bassel Khalaf:Anyways, besides me and Taite, cuz clearly we'd be on the list. But do you look at people like you walk in court, and it's like, oh, shoot, that guy's good. Like, oh, man, that guy's good.
James Broccoletti:Yes, sure. There's talent.
Bassel Khalaf:Or I guess also, like, oh, that guy sucks.
James Broccoletti:Sure I do that too. But I keep that one to myself. Okay, I'll come back.
Bassel Khalaf:Do you tell Jay?
James Broccoletti:Oh, yes, I will. I'll tell Jay and now. And I said, you would just not believe what happened, I cannot believe. And plus, you know, I'm a substitute judge. And so I said, Oh, and that's one of the hardest things to do is to keep your mouth shut. I mean, I remember when I first started to do that, I would like cross examine the officer on constructive possession. I realized that I can't do that. That's not my job.
Bassel Khalaf:How often do you sub judge?
James Broccoletti:I haven't sat for a little while because of the pandemic, but I used to sub a lot.
Bassel Khalaf:Are we talking about like, two, three times a year?
James Broccoletti:Much more than that.
Taite Westendorf:So what do you think, it's always struck me as, I don't have any specific examples of where I felt uncomfortable because somebody that was a defense attorney was sub judging, and I thought they were trying to curry favor with a prosecutor or something. But it's a very awkward dynamic, because the prosecutor sitting across from you very well could be somebody you've got three open cases with. Is there an awkwardness there at all?
James Broccoletti:Sure. There is. But what I try to do at the time that I'm ruling is to be instructive, and why and what the issues are, and the holes that I see the problems. It's really, I guess, early on when I was in Norfolk, one day, there was some issue that came up about whether or not this particular assault could be prosecuted on federal enclave and whether the Norfolk courts had jurisdiction, so on so forth, and you know, so I was, it was like an oral argument, because I was trying to ask the lawyers questions. And we recess and I went up, and we had like an en banc of the General District Court to try and reach that conclusion. But I enjoy the academic aspect of it. So if I have a case with the prosecutor that I'm going to rule against them, I'll quiz them. I'm not gonna cross examine him, but I'll quiz him and question them. And I'll try and let them know where I think that they're wrong, or what the issues are, so they can understand what's happening.
Bassel Khalaf:Do you feel like as you've gotten more experienced and more clout that you walk into a courtroom and talk to prosecutors or talk, even talk to a judge, and they you get more respect, because of your experience?
James Broccoletti:No, I get more respect, because of my honesty and my integrity. And that's something that I impart to everybody. The most important thing that you could ever take is your honesty and your reputation. You can never get that back once you've lost it. Okay, so if I have something that's...
Bassel Khalaf:Were you ever walking that line? Or maybe you were gonna lose it, but you didn't? Because you're such a guy of integrity?
James Broccoletti:No, I'm sure that I walked that line. I'm sure that in my head, I was going down that road.
Bassel Khalaf:I just picture like sexy, teenage Broccoletti with the long hair. I shouldn't, but I might, but I won't. And I didn't. Do you have that or not?
James Broccoletti:Like Jimmy Carter said I have lust in my heart.
Bassel Khalaf:Your hair is great, by the way.
Taite Westendorf:Yeah. Such a simple but such an important point, right? I mean, your credibility is everything. And once you lose it, it's gone forever.
James Broccoletti:It does. And so that's why I'm saying. So if I have a problem in a case, I'll admit it. If I have issues in the case, I'll admit it. I think you have to be able to do that to be able to confront those things, to overcome those things for the benefit of your client. And then the next time that you stand up and say something, the judge recognizes or the prosecutor recognizes.
Bassel Khalaf:But the problem is like Bassel Khalaf is like, look, you don't have the case, it's not going to happen. And then Broccoletti comes up like hey, I've reviewed the evidence and you don't have it and here's why. He's just so much more clout and I feel like...
James Broccoletti:You'll get there. You'll get there.
Bassel Khalaf:You think so?
James Broccoletti:Absolutely.
Bassel Khalaf:I like that. like that.
Taite Westendorf:I feel like this is a therapy session for Bassel.
Bassel Khalaf:I'm insecure. I'm gonna have sex with my wife after this. It's gonna be sick.
Taite Westendorf:Well, you've given us an hour and five minutes already.
Bassel Khalaf:Do you want to keep it going? Or do you guys have stuff to do? Keep going. Keep going.
Taite Westendorf:Okay, Okay. A couple of things I did want to bring up. So Bassel and I. Collin Stolle was good enough to come with us and Cal from the public defender's office and we were before city council a couple of weeks ago advocating for public defender pay parity. So we're going to try to enlist you in the cause. The Commonwealth's office gets a little over $6 million annually from Virginia Beach. Public Defender's Office gets nothing. And basically what it means is that there's a huge disparity between the salaries between the two sides. And so what we're asking for is roughly half a million dollars.
James Broccoletti:You need me to contribute?
Taite Westendorf:Yes, you personally. Because the city had expressed a little bit of reluctance so we need you to take up the slack. So are you in?
Bassel Khalaf:Yeah. Can you give public defenders your bank account?
Taite Westendorf:No, I guess what I was trying to say is, are you for the cause? Public Defenders should get some...
James Broccoletti:Well, okay, isn't the best example, the federal system, the US Attorneys paid the same as the Federal Defenders? The Federal Defender, the head, Federal Defender in Alexandria, is on the same pay scale as the US Attorney in Alexandria. I mean, there's no difference. The assistants, the deputies. I mean, all that's the same. So if that's the model, then why are we any different?
Taite Westendorf:Right, sort of our talking point has been the ultimate symbol of the criminal justice system is the scales of justice. And you can't pretend there are equal scales when one side makes up to... I mean, a deputy Commonwealth attorney makes over 80% more than their equivalent in the public defender's office.
James Broccoletti:It's just not that they make 80% more but they can they have the resources? The staff. They can pick up the phone and bark at a detective to do something.
Taite Westendorf:900 police officers
James Broccoletti:I mean, I remember when I was a prosecutor, you pick up the phone, I go, Hey, you know, Detective Smith, you need to do ABC or D. Then when I went into private practice, I picked up the phone and nobody answered. It just wasn't there so there's a huge discrepancy in the resources that are available too. It's very unfair with respect to that.
Bassel Khalaf:Speaking of discrepancies. I've had this thought
James Broccoletti:Your hair is getting curlier by the way.
Bassel Khalaf:As the night goes on.
Jay Normile:Your face gets redder and your hair gets curlier.
Bassel Khalaf:I know. I know. Because you wanted margaritas. By the way. James Broccoletti has drank seven margaritas.
James Broccoletti:Noooooooo.
Bassel Khalaf:Cinco, seis, siete. Siete margaritas! It's crazy. He wouldn't stop. He's crazy. It's crazy.
James Broccoletti:Uno, uno
Bassel Khalaf:You had siete. Anyway. I don't remember what I was going to say.
James Broccoletti:See, now who's had seven margaritas?
Taite Westendorf:All right. Well, we're kind of winding down here. He doesn't want to wind down.
Jay Normile:I've got a question. I just went to the bathroom by the way. There's only one toothbrush in the bathroom and two of are here so which one doesn't have a toothbrush.
Bassel Khalaf:We share a toothbrush.
Taite Westendorf:I think he may sleep here. He'll send me text messages where it's him here at the office in the middle of the night sometimes so I don't know what's going on.
Bassel Khalaf:Did you use my toothbrush?
James Broccoletti:Where did you use your toothbrush?
Bassel Khalaf:Which crevice? I've been penetrated.
Taite Westendorf:Well this is where we'll get into the more frivolous segment of our show. I think I've asked this of almost every guest because I'm a major movie aficionado. And I feel like I've said before it can give me some sort of x-ray into a person's psyche. Do you have some movies that you love, that are most important to you? Or that maybe even informed you and as far as your legal career?
James Broccoletti:I wouldn't say informed me. And I've showed my children this movie, and they think it's absolutely terrible and fell asleep. I think the greatest movie ever is Godfather Two.
Taite Westendorf:Yeah. Great movie. Did you see they just released a recut of Godfather Three, which was notoriously an inferior sequel to the first two. But I guess Coppola had some old footage that he cut in and cut out some other stuff.
James Broccoletti:I mean, I'm Italian. My grandparents immigrated. All four grandparents came from Italy. Didn't speak English. As I was growing up, I go to my grandmother's house and their beach. And I think that's one reason I became a lawyer is they'd just be yelling, screaming and you know, talking to each other, drinking wine and all this stuff. And then I'd go back to my house and my family, they'd be playing pinochle. You know, pinochle, it's an old card game, Italian game. And again, they'd be smoking cigars and yelling and screaming and arguing with each other. And I think arguments were always just in my blood from the time that I was that I can ever remember.
Bassel Khalaf:You don't have the persona of somebody who holds up the hand and (immitates Italian accent)...it's Broccoletti!
Taite Westendorf:That was uncanny.
Jay Normile:You are so not woke.
Bassel Khalaf:Sorry, cancel me, I don't give a fuck.
James Broccoletti:I talk a lot with my hands.
Bassel Khalaf:He just did the masterbation. And it was very appreciated.
James Broccoletti:But I think that movie in the context of you know how Al goes from present day to Deniro and it was just a fascinating and heartwarming.
Bassel Khalaf:Yo, have you watched Devil's Advocate starring Keanu Reeves?
James Broccoletti:Yep.
Bassel Khalaf:You should listen to our podcast analysis because it's very deep cuts, very surgical. But did you have a thought on that? Because to me like, when I watched it, I had no even sniff of I'm even going to college. And then beyond that, I'm going to law school. But I watched it and something resonated with me and this is...
James Broccoletti:Was it the redhead?
Taite Westendorf:The Connie Nielsen character in that movie, the sister.
Bassel Khalaf:No it was it was mostly the cerebral parts. You know, Keanu.
James Broccoletti:I don't know if I believe that.
Taite Westendorf:How dare you sir.
Bassel Khalaf:Anyway, alright, you didn't even think it was cerebral? It was so cerebral. I know you got better things to do than listen to our podcast. Well listen to the episode about Devil's Advocate. Adam Lantz loves it. I don't even know if you know who he is.
James Broccoletti:Sure, of course.
Bassel Khalaf:He's a fucking idiot. JK. LOL. Anyways, yeah.
James Broccoletti:Well, what other questions do you ask everybody?
Taite Westendorf:Ah, let's see. Are there any other stock questions that we've had?
Bassel Khalaf:Wow.
Taite Westendorf:Is there any music that you listen to you to get pumped up for the big case?
Bassel Khalaf:Okay, let's let's give you two options.
Taite Westendorf:No rocky theme?
Bassel Khalaf:21 Pilots or Imagine Dragons?
James Broccoletti:Oh, Imagine Dragons, but my daughter loves 21 Pilots.
Bassel Khalaf:I hate both of those.
James Broccoletti:Then why'd you ask it then?
Bassel Khalaf:Because I was hoping you'd be like, I don't like either of those because they suck.
James Broccoletti:You know, when I'm in the car, and I try and listen to the NFL radio. Just something that's just mindless, baseless, something you don't have to think about.
Bassel Khalaf:That's a great, that's a great question. So all right. You're coming in. It's a national media case. And you got to give that closing and you just coming up in there. What are you listening to to get you hyped? Or are you just I'm James, I don't care.
James Broccoletti:I don't listen to anything.
Bassel Khalaf:What!
James Broccoletti:I don't. I don't. No.
Bassel Khalaf:Hey, hire Westendorf & Khalaf.
James Broccoletti:No again, and you're gonna, this is gonna sound sappy. But I just listen to what's inside me. I listen to what's in my head. I listen to what's in my heart to be able to come up with the words.
Bassel Khalaf:You're an artiste. I like it.
James Broccoletti:One of the things that that I learned and focused on early in life was that this is a science, this is an art. This is not something that you just throw against the wall and you hope that it sticks. Words matter, themes matter, theories matter.
Bassel Khalaf:On that note, let me throw something. It's gonna be weird. And you might not agree. But there's a guy who you probably know. Curtis T. Brown.
James Broccoletti:Downtown Curtis Brown
Taite Westendorf:We watched one of his closings. He really was on fire.
Bassel Khalaf:And it was my man Andrew Rice, who I like, but he didn't have anything to work with. He came in there. And he comes in. He's like, you don't, she don't live on their street. So he came with the theme.
James Broccoletti:He talks the talk. He talks the talk of the jurors where they can understand.
Bassel Khalaf:He came up with a theme and it circled back around to the closing and it was like this arc, a story arc where I was like, god damn, you did such a good job. But you know, I would I would have found the person guilty only because he had nothing to work with. But he did such a good job. He gets clowned by prosecutors. I'm not gonna say which ones, but I thought he was good.
James Broccoletti:Stories. Life's about stories, cases are stories and you have to construct a story that's consistent with the facts not inconsistent with those things. And tell that story. Since you were a kid. You went to bed by stories, you listen to stories, and you relate to everything in your life. We're out drinking, right, you're in a bar, what do you do? You're telling stories. You're at a poker game, what are you doing? You're telling stories. Life is about stories...
Bassel Khalaf:But I've seen you do a great closing and you lose
James Broccoletti:I tell them at the beginning, I said, You're as any great defense attorney does. Surely they don't get to decide what they have to work with. And you step away. It's like alright, pre sentence report. We'll come back in five months and you just walk away and it's such a beautiful thing because I'm like, logically, that's what matters. But the client wants to say Oh, I'm so upset and whatever. We'll come back in five months, but you don't do that. You just, you're so good at delivering, extracting, and then just moving on to the next step, but honestly, there's a client control aspect of it where maybe they need to see you. I'm so not gonna hear me yell, you're not going to hear me scream. I'm mad, but you don't dignify the things that are not important. And I love it. not going to pound the table. If you want another lawyer. That's fine. That's not me. Okay, that's not who...
Bassel Khalaf:You want that, you get Jay.
James Broccoletti:Right. But talking about Curtis, one of the best stories ever about Curtis. He did a trial that was in Norfolk. And I can't remember, it's like third offense petit larceny or something stupid. And he was sitting at the council table, and the prosecutor was giving her closing argument. And Curtis had a little pad on there. And he wrote not guilty and he held the pad up. He held it up until the judge woke up and goes what! Holy shit, you can't put that sign up. But Curtis, he's himself.
Bassel Khalaf:We're closing up here. It's a minute 15 into the thing. And once we get past.
James Broccoletti:A minute 15?
Bassel Khalaf:An hour 15.
James Broccoletti:Time flies fast.
Bassel Khalaf:An hour 15. But just, have you seen somebody do a thing where it's like, oh fuck, I need to do that. Or like, oh my God, that guy's so good. Like, can you give an example of a time where you're just like, ahhhh I'm in the wrong era, like maybe I need to do...
James Broccoletti:I never thought I was in the wrong year. But I you know, we all steal stuff.
Bassel Khalaf:Yeah, a Bassel Khalaf case probably. But like, besides that, what else were you doing?
James Broccoletti:So, you know, I've watched lots of lawyers. You know, in federal court, I've had trials with with other lawyers, co defendants. And there was a lawyer by the name of Bill Moffitt. Bill was from DC. His partner was Hank Asbill. Hank is a great lawyer, still practicing. Bill passed away several years ago. And I just remembered, you know, I tried this drug case, and I'll never forget, this was Bill. And he had such empathy that he expressed to the jury and he talked. You know, there was an informant, right, the snitch. And, you know, he said, believe him, you know, believe him, believe now what he tells you because the government says that it's true. But forget about all of these other things that he's done in his life. And I'm just paraphrasing. You know, forget about all the crimes that he's committed. Forget about all the lies, because he's a government witness. So believe him. And his whole theme was believe him now, because he's a government witness, but forget about his whole life. I stole that because I thought it was just tremendous. You know, to incorporate that into a close on a snitch. But we do that, that's why I talked about before, we pass things on from generation to generation. We pass things on from person to person, because we owe that to each other. We owe that to everybody.
Bassel Khalaf:Are you a pure criminal defense attorney? Or do you have like some inclination to make money off of civil shit?
James Broccoletti:Well, what do I do? 1%?
Jay Normile:Yeah
James Broccoletti:Any personal injury that comes in, you know, Jay...
Bassel Khalaf:Let's say this, alright. Bassel Khalaf's like, oh we had such a fun time. And then I go home, and I'm driving and I get pulled over for DUI like a dummy. I do all the field sobriety tests, and I don't do so hot and say, oh I need James Broccoletti.
James Broccoletti:You need Jay. I wouldn't know what to do.
Bassel Khalaf:I don't want Jay. I know Jay's pedigree. He's a dirty dog. And I know his browser history.
James Broccoletti:I haven't tried a DUI in 35 years or misdemeanor.
Bassel Khalaf:I would want Randy Leeman. I want Randy
Jay Normile:That's why it's Zoby, Broccoletti, Normile, not Zoby, Broccoletti, Khalaf. Leeman briefing my case.
James Broccoletti:You do want Randy briefing. Okay. No
Bassel Khalaf:I do. Oh, yo, let's give a shout before, we gi question about that. e a shout out to him, which we need to do. Alright, Basse Khalaf is just a peon peas nt in the world and he's got DUI and he's like, I need Broc oletti, whatever. So how much money does it take for me to get you?
James Broccoletti:Yeah, I'd be ineffective. I would. I would be inefficient.
Bassel Khalaf:You could brush up on the law.
James Broccoletti:I'd still be ineffective. I mean, I just I don't know...
Bassel Khalaf:Man, I thought you were ride or die.
James Broccoletti:No interest. I just wouldn't do it because I just...
Jay Normile:You'd be referred to me, but you couldn't afford me after wh
Bassel Khalaf:Well I go to Jay.
James Broccoletti:So there's a point where you have to say for now, okay, sorry. You say no. Because of your time constraints. You say no, because of the nature of the case. And you're not familiar enough with whatever...
Bassel Khalaf:What if I'm Jeff Bezos and I got a DUI? Do you say hey, you know...
James Broccoletti:There are exceptions to every rule.
Bassel Khalaf:Now I've got $100 million. Would you take my case?
James Broccoletti:So there's a, I call it the asshole quotient, okay? Which when there's a particular client that you don't want, because of the client or whatever the issue, so you'd like double or triple, and if they pay it then it's worth it.
Taite Westendorf:There's definitely an asshole premium and a Chesapeake premium.
James Broccoletti:Right.
Taite Westendorf:All right. We l, thank you for all those hig
Bassel Khalaf:Goddamnit. I don't him to leave though. If I cut this off, he's gone. He's not coming back. Hey, can you tell Pam Hutchens to come on our podcast?
James Broccoletti:Sure. I mean...
Bassel Khalaf:Yeah. Right there in the mic. Right there in the mic.
James Broccoletti:This has been fun. I enjoy talking about this stuff. I'm passionate about it. I'll be passionate about it till the day I die.
Bassel Khalaf:Have you seen a setup where there's, you know, a podcast sort of thing? Can you just call us like trailblazers?
James Broccoletti:I've never seen this before. But Jay told me.
Bassel Khalaf:Just tell me you love it.
James Broccoletti:No, I love it. When Jay told me that were on it. You know, and I've listened to a couple of them, and they're really cool.
Taite Westendorf:I will say this this was Bassel's baby. I thought it was probably a little bit silly. But he's really, it's much to his credit that it's gotten the small following that it has...
James Broccoletti:Taite said that you were like the talent scout and you were able to go out and scour the country to bring...
Bassel Khalaf:Yeah, I did good I got, I got Stephanie Moral s. Yeah, what's up Stephan e Morales? Yeah, she's good. I a tually love that interview. he was very passionate. She w s very intelligent. We had Mi hael Bertolucci who's a city cou cil member. And he had this thi g where it was probably what you can do with clients or a clo ing argument, but the idea tha a person could talk to Joe Sch o and do it well and do it wit effectiveness. I
Taite Westendorf:Imagine that. A criminal defense attorney who's persuasive.
Bassel Khalaf:I'm not talking about him, I'm not talking about Berlucchi.
Taite Westendorf:Oh sorry, my bad.
Bassel Khalaf:Anyways, yeah, so we're pumped.
Taite Westendorf:Alright everybody, we're going to put Bassel to bed and let James Broccoletti and Jay go home. But gentlemen, thank you very much for being here. For any law students out there, you just got an incredibly valuable lecture from probably the preeminent criminal defense attorney of this generation for free, so thank you James.
James Broccoletti:That's very kind. Thank you.
Bassel Khalaf:James. I have a bet going on my group text. Can you say yeet?
James Broccoletti:Who?
Jay Normile:It's not offensive. You can say it.
Bassel Khalaf:Say yeet.
James Broccoletti:Is that like woke or whatever that was?
Bassel Khalaf:Just say this, say yeeeet.
James Broccoletti:yeeet.