The Limits of Manifesting Success with James Forman, Jr.

Summary

Deep Cover – The Limits of Manifesting Success with James Forman, Jr.

Air Date: June 29, 2026 | Host: Jake Halpern | Guest: James Forman, Jr.

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Episode Overview

This special episode of Deep Cover explores the legal and moral complexities in the aftermath of "The Family Man" investigation, focusing on the prosecution and punishment of Keith Giamanco—aka the “Boonie Hat Bandit”—who committed a series of bank robberies to provide for his struggling family. Host Jake Halpern sits down with Pulitzer Prize-winning legal scholar James Forman, Jr. to dissect the legal strategy, dual state-federal prosecutions, media influence, sentencing philosophy, and the deeper questions of justice and redemption. The episode also questions the limits of “manifesting success” in the criminal justice system, both for defendants and their lawyers.

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Key Discussion Points & Insights

1. Keith's Arrest, Confession, and Early Legal Strategy

• Immediate Confession and Absence of Legal Counsel

  • Keith confessed to all robberies right after arrest, without a lawyer present, driven by exhaustion and a desire to come clean.
  • James Forman’s Advice: Never confess or talk to police without a lawyer, as early statements only help the government and can complicate defense (05:10).
    • Quote: “The advice that I would give him and that any lawyer would give him is not to talk... You don't want to give the government more evidence.” – James Forman Jr. (05:10)
  • However, in this particular case, Forman believes the evidence was so overwhelming that not confessing may not have changed the outcome (06:04).

• Mitigation as the Only Real Defense

  • With a “mountain” of evidence—witnesses, physical evidence, and confession—the only strategy was to seek mercy by humanizing Keith and showing the broader context of his actions (08:04).

• Confession as Double-Edged Sword

  • While potentially damaging, Keith’s immediate remorse could support a mitigation case (09:50).

2. Why Was Keith Prosecuted Twice? The Dual Sovereignty Doctrine

• Federal and State Prosecution

  • The Constitution’s Double Jeopardy clause does not prevent both state and federal courts from prosecuting the same conduct due to the “dual sovereignty” doctrine (11:26).
  • Famous civil rights cases (e.g., Rodney King) highlight how both entities can prosecute, for better or worse (13:23).
    • Quote: “It's called dual sovereignty… both of them is entitled to pass laws... both of those entities… have the authority to bring charges.” – James Forman Jr. (11:26)
  • This adds complexity for defense, as lawyers must negotiate with two sets of prosecutors, typically opting for a “global resolution” if possible (15:31).

• Prosecution Missteps and Unusual Plea Sequence

  • Keith’s defense entered a federal plea before resolving the state case, despite state penalties being potentially more severe—a move Forman found questionable and surprising (16:42).

3. Media, Public Narrative, and Prosecutorial Politics

• Impact of Media Coverage

  • Giamanco’s decision (encouraged by his daughters) to share their story on Good Morning America may have drawn unwanted attention and made the prosecution more punitive (22:03, 23:03).
    • Quote: “The attempt to win the media battle was never going to be in your favor... My office's media training was simple: two words, ‘no comment’.” – James Forman Jr. (23:58)
  • Forman suggests that defense attorneys almost never benefit from media engagement; appeals for mercy belong before prosecutors, juries, or judges—not in the press.

• Electoral Incentives for Tough Prosecution

  • Missouri's elected prosecutors, like Bob McCulloch, often seek public validation by being “tough on crime,” driving up sentences to win elections (21:03, 22:03).

4. Defense Disarray and the Pitfalls of “Manifesting” in Court

• Keith vs. His Defense Team

  • Open disagreements between Keith and his lawyers in court are both rare and telling—judges may suspect attempts to delay trial or genuine breakdowns in communication (28:25).
  • Keith’s strong belief in manifesting “his” version of reality clashed with his lawyers’ required pessimism and risk-averse stance.
    • Quote: “The lawyer's job is not to manifest a good outcome... The lawyer's job is... to push back at the person who's manifesting this good outcome.” – James Forman Jr. (30:50)
  • Criminal defense is about “glass half empty,” preparing clients for worst-case scenarios, not enabling magical thinking (31:20).

• The Reality of Jury Perceptions

  • Defense lawyers must prepare clients for the harshest possible cross-examination, especially when public sympathy may not align with the facts (32:10–34:10).

5. Sentencing, Justice, and Restorative Possibilities

• The Limits and Tools of Jury or Judge Sentencing

  • Testimony by Keith’s daughters highlighted his humanity and trauma, providing a strong mitigation argument, but such pleas only go so far without a broader context of remorse and rehabilitation (37:48).
    • “A jury is going to see them… and is going to think, the person who raised these magnificent two children… is not a career criminal.” – James Forman Jr. (39:08)

• Theories of Punishment: Deterrence, Retribution, Incapacitation

  • Prosecutor McCulloch justified the harsh sentence on grounds of deterrence—a stance Forman critiques, arguing America's sentences are excessively long by global standards (40:44–43:21).
    • Quote: “To me, this is a crime that did not involve a weapon… in my opinion, a crime like that shouldn't be getting 20 years.” – James Forman Jr. (43:21)

• Restorative Justice: What Would Real Repair Look Like?

  • Forman advocates for systems that allow direct, humanized apology and dialogue between victim and offender, which U.S. criminal courts rarely provide (44:37–48:07).
    • Quote: “We underestimate people’s capacity to be helped... by having the chance to be face to face with the person who is truly prepared to acknowledge the harm...” – James Forman Jr. (49:08)

• Racial Dimension and Privilege

  • Audience and host noted that Keith’s experience—kind police, sympathetic coverage—may have been starkly different if he were a Black man, reflecting broader racial disparities in American justice (50:14).
    • Quote: “There was an amount of privilege that he was getting. I want to flip it and say to Black families... we're going to give you the Keith Giamanco treatment.” – James Forman Jr. (52:24)

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Notable Quotes & Memorable Moments

• On Counseling Defendants:
  “The advice that I would give him and that any lawyer would give him is not to talk...” (05:10 – James Forman Jr.)

• On the Futility of Media Battles:
  “My office’s media training was simple: two words, ‘no comment’... The attempt to win the media battle was never going to be in your favor...” (23:58 – James Forman Jr.)

• On the Lawyer’s Proper Role:
  “The lawyer's job is not to manifest a good outcome... The lawyer's job is the opposite of that.” (30:50 – James Forman Jr.)

• On Sentencing and Proportionality:
  “...in my opinion, a crime like that shouldn’t be getting 20 years.” (43:21 – James Forman Jr.)

• On Restorative Justice:
  “We underestimate people’s capacity to... be made better or... whole by having the chance to be face to face with the person who is truly prepared to acknowledge the harm...” (49:08 – James Forman Jr.)

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Segment Timeline

| Timestamp | Topic / Segment | |-----------|-----------------| | 04:00 | Setting up Keith’s arrest, interrogation, and immediate confession | | 05:10 | Forman’s standard legal advice: never talk, the reality of “overwhelming case” | | 08:04 | Strategy options: Only mitigation possible | | 09:50 | Confession's possible benefit in mitigation | | 11:26 | Explaining dual sovereignty and double jeopardy | | 13:23 | Civil rights examples: Rodney King | | 15:31 | “Global resolution” and plea negotiations | | 16:42 | Surprise at unresolved state plea during federal plea | | 21:03 | Elected prosecutors and American punitiveness | | 22:03 | McCulloch’s political context | | 23:58 | “No comment” media strategy and its rationale | | 28:25 | Defense-client disagreements and court dynamics | | 30:50 | Manifesting success vs. legal realism | | 37:48 | Daughters’ testimony and mitigating sentencing strategies | | 40:44 | On prosecutor’s deterrence argument | | 43:21 | Comparative international sentencing perspectives | | 44:37 | Principles and challenges of restorative justice | | 49:08 | Restorative justice and victims’ perspectives | | 52:24 | Race, privilege, and criminal justice disparities |

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Conclusion

This episode offers a masterclass on the realities of criminal defense and sentencing in America—why even heartfelt truth may not sway outcomes, the hazards of media strategies, the machinations of electoral justice, and the deeper truths about repair and punishment. Forman and Halpern illustrate the system’s stark limits, from the dangerous allure of “manifesting success” to the need for more humane, proportional, and restorative approaches to justice.

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Recommended for listeners who want a deeper understanding of American criminal justice, the limits of legal and social narratives, and why meaningful reform remains such a challenge.

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Host: Jake Halpern | Guest: James Forman, Jr.

Transcript

[Podcast Host/Announcer]

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Just head to CarMax.com for details and get pre qualified today. Want to drive CarMax. Pushkin. Hey everybody, it's Jake here. I hope you enjoyed this season of Deep Cover the Family Man. As so often happens, when I'm working on a story like this, there are questions that have stuck with me, things we couldn't unpack in detail during the course of the series. A lot of those have to do with the legal proceedings that Keith Giamanco faced after his arrest in 2008. Like, how did his tearful and immediate confession affect his prospects in the courts? And speaking of the courts, why was he prosecuted twice at the federal and then the state level? Why couldn't Keith and his lawyers get on the same page about their trial strategy? And, of course, the biggest lingering question for me was the sentence that Keith received really necessary? So I sat down with my friend James Foreman Jr. To talk it all through. James is a professor at the Yale Law School and won the Pulitzer Prize for his book on mass incarceration. Here's our conversation. I kind of want to start at the beginning of Keith's interaction with law enforcement. So he gets arrested after the 12th bank that he robs. This detective who's been looking for him, John Bradley, ends up going with him into an interrogation room with another detective. And Keith does not ask for a lawyer, and he immediately confesses to what he's done. Keith said that he was just tired of all the deceit, and he just felt this overpowering urge to come clean. And I have to wonder there how things might have gone differently if he had asked for a lawyer. If you, you know, James Forman show up, are called in as the public defender in this moment, what advice would you have given to Keith before he said a word to the police? And do you think that might have made any difference in terms of the leverage that he might have had for making a better deal?

[James Forman Jr. (Legal Expert/Guest)]

Yeah, it's a really important question. I mean, the advice that I would give him and that any lawyer would give him is not to talk, because you don't know at the early stages of the case what the government's evidence is. And so you don't want to provide the government more evidence, and you don't want to say anything that would be inconsistent with the evidence that the government is going to be able to have. And they can use that and try to say, oh, you were lying. You were lying then, now you're lying on the standard. And so I would have advised him not to talk. In terms of your other question, what difference would it have made in this case? I don't think it would have made really any difference at all. But that's only because of how strong the government's case was.

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Right.

[James Forman Jr. (Legal Expert/Guest)]

They have eyewitnesses. I believe they called tellers from every single one of the banks, or they could have called tellers from every single one of the banks. They had people who were prepared to testify, and they have physical evidence. So there's some funds that could be traced back to that bank that were given to Keith, which he then had in his car when he was stopped not far from the scene. And there's a confession. Right? So if you're the prosecutor in this kind of case, you're salivating because you can't lose. And if you're the defense lawyer in this case, you. You're trying to figure out, well, what kind of plea offer can we get? Because if you take this case to trial as a defense lawyer, it's what we call a slow guilty plea. Right. You can either plead guilty officially in like, 15 minutes at a formal guilty plea, or you can take a case to trial that cannot be won, which is going to be a guilty plea. It's just going to take three or four days before the guilty plea comes in the form of a jury verdict. And so this case was unwinnable, and it was even more unwinnable at the state level, because on top of all the things we talked about, you have a federal conviction. So he's already pled guilty in federal court. And the fact that he had pled guilty to these crimes in federal court can be. And was introduced in. In the state trial.

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So

[James Forman Jr. (Legal Expert/Guest)]

it's overwhelming. I mean, I don't know that I saw a case in practice with this mountain of evidence.

[Podcast Host/Announcer]

Wow.

[Jake Halpern (Interviewer/Host)]

So what do you. If you walk into this situation and you're Keith's lawyer, what are you telling him is his best case scenario or the strategy that he should be pursuing to get, you know, the lightest sentence he can.

[James Forman Jr. (Legal Expert/Guest)]

The only strategy here that I see is a strategy of mitigation, a strategy in which you go to the prosecutor and you basically are asking for mercy, but it's mercy based on something. So you are telling the prosecutor the story, in some ways the story that comes out over the course of the podcast, and in some ways the story that he tried to tell in the sentencing phase at the state trial.

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Right.

[James Forman Jr. (Legal Expert/Guest)]

Which is, how did it come to be that this person did this thing? Is this person who did this thing the kind of person who is just born to commit crimes and rob banks and will always do it? Or was it situational? Were there things that happened in his life Traumas, other events, crises that put him into a place where he did a thing that was really not his character. And who are the other people in his life that will be harmed and hurt by his being incarcerated? All those things are part of the package that you put together to the prosecutor to get them to see that this is a case of somebody who is not a lifetime career criminal. It's a case of somebody who made a terrible, terrible decision. And you try to get them to see the robberies together as one decision. And that's hard. But. But this is what you argue. And to go back to your point about the confession, that's where you introduce the confession. So the one way in which the confession helped him is that you can say as soon as he was confronted, he told the truth.

[Jake Halpern (Interviewer/Host)]

Wow, that's interesting. I hadn't thought about that. That it actually could play in his favor because it showed maybe that he was on the path to rehabilitation or redemption or whatever you want to call it from the moment that he was caught.

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Yeah.

[James Forman Jr. (Legal Expert/Guest)]

You'd say to the prosecutor, look, if your concern is that this is some sort of career criminal who is just going to live his life for the rest of his life trying to get over trying to lie, trying to deceive, trying to harm, trying to steal, you know, that kind of person, and that person does not confess, and they do not confess right away. They do not. In the first moment, they. That they have the opportunity to come clean in the way that he did. Right. In that authentic way where he says that he was sorry.

[Jake Halpern (Interviewer/Host)]

Yeah. I mean, he breaks down. You can hear him weeping in the confession.

[James Forman Jr. (Legal Expert/Guest)]

Yeah. So you would make that argument to a Bob McCulloch. I mean, again, it might not work, but this is what you have to do.

[Jake Halpern (Interviewer/Host)]

All right. I feel like we have to jump into this issue, which was like, in this case, you're not dealing with one prosecutor, but two or two prosecutions, I should say. The one that comes first is the federal prosecution, and then it ends up, as we know, going to trial on the state level, because there's a state prosecution as well, and there's a lot to kind of unpack there. But I think the first question that I have is just simply how? Because, you know, we grew up learning in the Constitution that you can't be prosecuted twice for the same crime or set of actions. And it seems like that's what's going on here. So how is that possible?

[James Forman Jr. (Legal Expert/Guest)]

No, you're right. That is people's intuition. And the way that it's possible is this idea that we have these two governments. Right. It's called dual sovereignty, but two governments is the idea. We have a state government and we have a federal government, and both of them is entitled to pass laws and has passed laws making various kinds of conduct criminal. And one of the things that is covered by both is bank robberies. And as a result, both of those entities, the state of Missouri, through the St. Louis county prosecutor, and the federal government, through the United States Attorney's Office in Missouri, has the authority to bring charges. Federal prosecutors in federal court, state prosecutors in state court.

[Jake Halpern (Interviewer/Host)]

And that's pretty well established and has been that way for a while.

[James Forman Jr. (Legal Expert/Guest)]

It's both well established, and it's also, in some circumstances, vigorously defended by people who would otherwise be the kind of people that are kind of sympathetic to the idea that, you know, we have too much punishment in this society and we have too many prosecutions and our prison sentences are too high.

[Jake Halpern (Interviewer/Host)]

What do you mean by that?

[James Forman Jr. (Legal Expert/Guest)]

Well, civil rights violations are the classic example, and police brutality cases are the other classic example. So the most famous one in our lifetime is Rodney King. Right. So Rodney King is driving his car in Los Angeles. He's pulled over, he's beaten without mercy by the LA Police Department. And it traumatized the country. It traumatized me. I was a law student. And then the further trauma was when the officers who beat him were brought to trial in the state system. They were acquitted. All four of them were acquitted. And then the federal government stepped in because they have.

[Jake Halpern (Interviewer/Host)]

That's the dual sovereignty.

[James Forman Jr. (Legal Expert/Guest)]

That's the dual sovereignty.

[Jake Halpern (Interviewer/Host)]

We also have the right to. To bring up charges on these officers.

[James Forman Jr. (Legal Expert/Guest)]

That's right.

[Jake Halpern (Interviewer/Host)]

This results in a conviction.

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Yeah.

[James Forman Jr. (Legal Expert/Guest)]

And celebrated.

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Yeah.

[James Forman Jr. (Legal Expert/Guest)]

So that's. That's double. Those officers could have the same reaction. They could also that Keith said, well, this is not fair. We were already acquitted.

[Jake Halpern (Interviewer/Host)]

So there's this idea. It's more than idea. There's this strong kind of legal precedent or a tradition that both the federal government and the state have their own set of laws and their own sovereignty over an area. And if you break those laws, either set of those laws, they can both come after you.

[James Forman Jr. (Legal Expert/Guest)]

That's right.

[Jake Halpern (Interviewer/Host)]

Now, as Keith thinks about mounting his defense, it seems to me that he has a more complicated challenge than many defendants in that he's not balancing one prosecution, but two prosecutions. You're talking about making an argument to prosecutors in which he sets out these mitigating circumstances and says, hey, cut me a break. And that in some ways is banking on having a sympathetic Ear or some sort of compromising spirit from the prosecutor. Now we're talking about doing that with two separate prosecutors. And I'm wondering, how do you do that? Because that seems like that could be quite a challenge as a defense criminal defense lawyer.

[James Forman Jr. (Legal Expert/Guest)]

Well, the first thing you try to do is figure out which of these prosecutors is likely to be looking for more time. And that can be based on your assessment of how punitive that office is. Right. What are the kinds of sentences that they tend to look for in cases like this? I'm not a lawyer in Missouri, so I didn't know until I listened to this podcast what the sentencing. Sentencing guidelines were. And. But if I, trust me, if I was a practicing lawyer in St. Louis, I would know those things and I would know that I had a Prosecutor like Bob McCulloch.

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Yeah.

[James Forman Jr. (Legal Expert/Guest)]

Who is well known for trying to get, you know, publicity and has well known, well established punitive instincts. Right. A long ball hitter, somebody that likes to get long sentences. So you know that going into it. So in this case, that would mean that you'd be going to the state first, likely to try to get a plea agreement in which the federal government agrees not to bring charges, charges that they could bring as part of this kind of global resolution. And what you're saying is we want to resolve all of them in one plea agreement. This one plea agreement is going to take care of everything.

[Jake Halpern (Interviewer/Host)]

Right. So kind of, what the heck? We weren't able to interview Keith's lawyers because one of them had passed away and one of them wouldn't talk to us. Keith says, and we only have Keith's version of this, that they said that, that they had told him that maybe the state would drop the charges. That seems unlikely to me, given what we know about Bob McCullough. Why is the federal case pled out first while the state is unresolved?

[James Forman Jr. (Legal Expert/Guest)]

I've been asking you this since you presented this case to me, and I. I don't know. I know the judge was interested in this question.

[Jake Halpern (Interviewer/Host)]

Yeah. Because it comes up when he's actually entering the plea in federal court. The judge actually says, hey, what's the deal with the state prosecution? Has this been worked out? And the defense counsel basically says, hey, we're still working on that. Which I remember we talked about this and you said you found that surprising that that hadn't been worked out at that point.

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Yeah.

[James Forman Jr. (Legal Expert/Guest)]

Again, I never want to label. I don't want to label somebody substandard or incompetent with. From a distance without knowing all the ins and outs of the Pratt of of practice. But I can tell you that where I practiced and as I was a lawyer, I would never stand up and say, oh, we're going to enter the plea here. We haven't worked out what's happening in state court, especially when you know that the exposure, the likely sentence in state court is going to be greater. I would never enter a plea in federal court under those circumstances.

[Jake Halpern (Interviewer/Host)]

We're going to take a quick break and when we come back, I ask James about the media battle around this case and he tells me why a lawyer never tries to manifest success.

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[Jake Halpern (Interviewer/Host)]

So I want to talk about Bob McCullough for a second. He's a prosecutor who is an elected official, right?

[James Forman Jr. (Legal Expert/Guest)]

Yes. So very few countries in the world elect their local prosecutors, but the United States is one and it's unfortunate. Yes.

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Huh.

[Jake Halpern (Interviewer/Host)]

I didn't know that. Yeah.

[James Forman Jr. (Legal Expert/Guest)]

And it's one of the reasons why a lot of people suggest, have argued and I agree. Part of why our system became so punitive, especially in the 70s, 80s and 90s, is that we had people running for office on the idea that, you know, I'm gonna lock up more people than the other guy or girl, but mostly guy, I'm gonna lock up more people, I'm gonna have them in for longer, I'm gonna have them in worse conditions. And so it became this kind of race to ever more punitiveness, ever sentences. The only way you would ever get defeated as a prosecutor, as an established prosecutor, is if your opponent could point to some case where you didn't get the longest possible sentence and the public is outraged. And so there's a dynamic here where public sentiment, which is typically very kind of anti crime and wanting more punishment, leads to a dynamic where all of these county prosecutors all over the country get more and more and more punitive.

[Jake Halpern (Interviewer/Host)]

So he's, McCullough is part of this uniquely American phenomena, right. Where you get, you get votes if you can prove yourself to be, you know, a tough on crime prosecutor, which is what McCullough presents himself as. So I mean, I, I wonder to what extent the notoriety around this case actually works against Keith. And this is interesting for the following reason. After Keith is arrested, he approaches his daughters and basically says there's an opportunity to go on Good Morning America. I think it could help build some sympathy for us the girls agree to it. But I wonder if this ended up actually hurting Keith because this helps make it a national story and actually put his case more on the radar of someone like Bob McCullough.

[James Forman Jr. (Legal Expert/Guest)]

Yeah, I think that's right.

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So

[James Forman Jr. (Legal Expert/Guest)]

think about it like this. Or here's one way into thinking about this question of the defense attorneys and the media. I was a training director for a year at the public defender office in D.C. and we had a two month training program at the office. And typically on a Friday afternoon, during the end of, near the end of training on the syllabus it would say media training. And they would come in. The new lawyers who were being trained would come in two or three o'clock on a Friday. And I would say, okay, we're going to do the media training today. And then on the board you pull across the curtain and it says, no comment. And then I would tell them, all right, go watch a movie. Go enjoy your weekend.

[Jake Halpern (Interviewer/Host)]

Come on.

[James Forman Jr. (Legal Expert/Guest)]

Yeah, because that is the media training that we were provided in my office. Those are the two words that you say, no comment. Now that's extreme. My office was extreme. But what was the principle behind the thinking? It was this. It was exactly what you're talking about. It was that the attempt to win the media battle was never going to be in your favor, or it was almost never going to be in your favor. And you wouldn't know the cases where it was going to be in your favor. And so you might sacrifice clients. Right. By thinking that you were going to win the media battle. Because if you're effective, the only thing you're going to do is piss off the prosecutor who's like, why are you taking this case to the media? And so if you have a claim for mitigation, if you want to kind of get that sympathy, if you want to make the case that Keith and his daughters were trying to make, that there was a reason behind these actions, that he wasn't a career criminal, that you should have sympathy for him. The three places to make that are number one in the prosecutor's office, number two in front of the jury, and number three in front of the judge. And you hope that you're successful at the prosecutor's office, so you never get to the jury.

[Jake Halpern (Interviewer/Host)]

Got it.

[James Forman Jr. (Legal Expert/Guest)]

And then if you succeed in front of the jury, you get an acquittal. And you never get to the judge for sentencing. But your last stop is the judge. But it's never pretrial. It's never when Keith and his daughters tried to do it.

[Jake Halpern (Interviewer/Host)]

Yeah, there's another interesting thing about that, is that in that scenario, it is your lawyer, your advocate, who is making the presentation of the story. That is whatever mitigation is that this guy was a good dad, he was in a desperate situation. Like, there is a narrative there. When you go to the press, when you go to Good Morning America, you're rolling the dice. You have no idea whether, in fact, you're even going to be making a story that makes anyone care about you.

[James Forman Jr. (Legal Expert/Guest)]

Yeah. I mean, guess what? The media is not your friend.

[Jake Halpern (Interviewer/Host)]

Yeah.

[James Forman Jr. (Legal Expert/Guest)]

And so.

[Jake Halpern (Interviewer/Host)]

Yes, as the journalist, but.

[Sponsor/Ad Voice (Apple Card)]

Yes.

[James Forman Jr. (Legal Expert/Guest)]

Yeah. No. I mean, no offense. No, right. No offense.

[Jake Halpern (Interviewer/Host)]

But.

[James Forman Jr. (Legal Expert/Guest)]

But the reason why we give this training and the reason why when I was a lawyer, I received this training is that your agenda is not their agenda.

[Jake Halpern (Interviewer/Host)]

Yeah.

[James Forman Jr. (Legal Expert/Guest)]

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

[Jake Halpern (Interviewer/Host)]

Yes.

[James Forman Jr. (Legal Expert/Guest)]

There's occasional moments where that might al.

[Jake Halpern (Interviewer/Host)]

Yes.

[James Forman Jr. (Legal Expert/Guest)]

But mostly it won't. And you can't also sell out those many clients where it doesn't align for those few one or two where maybe it does.

[Jake Halpern (Interviewer/Host)]

Yeah. It's interesting, too. The risk is it either irritates the prosecutor or even just calls attention to your story in a way that it's not going to help you.

[James Forman Jr. (Legal Expert/Guest)]

Yeah, right. Because. Because they're going to be a little bit. They're going to be a little bit offended, maybe. But at a minimum, as you said, it's now called their attention. They're like, well, let me focus on this. Maybe they get somebody more senior to take over the case. And that's why, by the way, if you pay attention, 95% of cases, you'll see defense attorney decline to comment or defense attorney said, my client, Keith is innocent and he looks forward to his day in court.

[Jake Halpern (Interviewer/Host)]

I've never had, in all my years of reporting, I've never had a defense attorney give me an interview while a case was pending. The only time I was ever actually I interviewed a defendant in that circumstances was when he ignored his lawyer's advice at the opening of the trial. Keith and his. This I also haven't seen. I don't know if you've seen this. The judge basically says, are you ready for trial? His defense lawyer says, yes, your honor. And Keith says, no, we're not. And then he and his lawyers proceed to argue in front of one another about their strategy. About what? In front of the judge. It's like. It seems like complete disarray and dysfunction. And in fact, Keith is trying to get his Lawyers replaced at that point, and the judge ultimately doesn't allow it. It's like a bad reality TV or soap opera or something. Is this. I hadn't seen anything like that before. Is this unusual?

[James Forman Jr. (Legal Expert/Guest)]

It's not common, but it's not unheard of. The issue, I think, from the judge's perspective, to take their perspective in this instance, is I don't really know what's behind this disagreement. And I'm not, because of lawyer client confidences, I'm not going to ever be able to figure out actually who's right in this disagreement. But what judges are aware of is that some people charged are looking to delay their trial, especially in a case where there's overwhelming evidence like this. And one way to get a delay on the day of trial is to say that you have a dispute that can't be resolved with your lawyer. Because if the judge impose, gives you a new lawyer, that lawyer's not going to be ready for trial that day. So that lawyer is going to need at least a few weeks, if not a couple of months. And now you're not going to trial that day. And so judges are worried about that. It's also the case. Again, I don't know. Neither of us was in the room with Keith and his lawyers, so we don't know. But there are difficult clients. I had clients who said, I'm not satisfied with the quality of representation that I'm receiving and I want a new lawyer now. I think they were getting excellent representation. But obviously I have a lot of bias in that equation. So we're not gonna know whether Keith was right, whether his lawyers were right. Was this just a delay tactic? Did he have a vision of a defense? Was he asking them to put on a defense that they were like, that's a crazy defense. It's not gonna work. We don't wanna put it on. Right. I mean, it especially didn't surprise me, given what we're learning about Keith through this story. Right. He is a very, very headstrong person. He believes that he is going to manifest the reality that he wants against often overwhelming evidence, to suggest that is not and will not be the reality. So when you're dealing with somebody like that, with that kind of mental state, I think it's because the lawyers aren't manifesting. The lawyer's job is not to manifest a good outcome. Like, if I believe hard enough and if I think it, then it's going to happen. The lawyer's job is the opposite of that. The lawyer's job is to See the risks is to push back at the person who's manifesting this good outcome. And when the lawyer does that, the person who's manifesting can feel like, oh, they don't have faith in me, they don't believe in me, they think I'm not telling the truth. Well, I gotta surround myself by people who believe in me. Like that's part of manifesting.

[Jake Halpern (Interviewer/Host)]

I'm snapping my fingers. Because that is super interesting to me. Because I think that that is the way that Keith read it is that I think he felt that they didn't believe in his case. They didn't kind of, they weren't behind him full heartedly. But what I'm, but what I'm hearing you say is that it's the lawyer's job to be glass half empty. It's the lawyer's job to kind of think about the worst case scenario and to be risk averse. Now that doesn't mean the lawyer's always right, but that probably means a lawyer is doing their job.

[James Forman Jr. (Legal Expert/Guest)]

That's right. I mean we, you know, in my office when somebody was getting ready to, when someone was deciding whether they were going to take a plea or go to trial, one of the things that we saw it as part of our job was, is to have somebody else from the office come into the room. We'd go to the jail if our client was locked up or in the office if they weren't. And me as a lawyer, I would have the client tell their story. I would do in essence the direct examination and then my colleague would do the cross examination. They would act like the prosecutor and they would be mean as they could be. They would be the most hard ass prosecutor that we knew in the office. We didn't want any manifesting. We wanted you to know that if you took the stand, that's what was going to happen. You were going to have to be prepared to answer those questions and it was going to be grueling. And if you didn't have good answers, the jury was going to know it. And so what I would be saying to Keith before trial is, listen, I know that you didn't have a weapon and I know that in your mind you were not trying to threaten anybody with a weapon. You were not trying to suggest that you had a weapon. Cuz that's Keith's view. But what I want you to understand is these people are gonna come and they're gonna take the stand and the prosecutor is gonna ask them the question. When you read that note and you saw his hand in his po it what did you think? And that Teller is going to answer. I thought he had a gun. And Teller after Teller is going to come in. These are sympathetic people. These are people that the jury is going to relate with because they are just coming in and doing their job. They did not ask for this and they are going to create this mountain of impression that all of these people thought you had a gun and that is going to meet the standard for first degree under Missouri law.

[Jake Halpern (Interviewer/Host)]

Let's take one more quick break and then James and I get into the sentencing and what justice looks like in this case.

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[James Forman Jr. (Legal Expert/Guest)]

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[Jake Halpern (Interviewer/Host)]

Let's go to the the penalty phase. Because in many ways, if there was a chance that Keith's strategy was going to pay off, it seems to me that the, the place where that would occur would be in the penalty phase, right?

[James Forman Jr. (Legal Expert/Guest)]

Yes.

[Jake Halpern (Interviewer/Host)]

Okay. That's the part where his daughters take the stand and basically talk about how important he is in their life, especially with the absence of their mom and their mom struggling with drug addiction. And on a personal level, I find Marissa and Elise to be very compelling as people. But I'm wondering, in the context of sentencing within a jury, is that something that typically is effective with a jury? Will you say to them, yes, this man did these things, but there are people on the outside, his kids in fact, who are counting on him and by incarcerating him, they will suffer. And is that an argument that resonates with juries?

[James Forman Jr. (Legal Expert/Guest)]

So the first thing to say is jury sentencing is not common, but I think it can make a difference for judges. And I suspect for those same reasons, I would think that it would be an effective tactic to use in front of a jury. So I think that that was a good strategy. It can't just be the, these people are gonna be harmed by your absence. Because I think juries understand everyone has people who love them. And everybody who goes to prison has somebody who's sad and hurt that they've gone to prison. So that's not enough by itself. You also have to have as existed here a story that is both of trauma that helps you understand how it was that somebody could be put into this position where they would feel trapped and have no choice but to do the thing they did. That's number one. But also number two, which was also present here, is that that set of decisions is not the totality of who that person is. And that, to me, is part of where his daughters would come in with a jury, which is that I think a jury is going to see them or a judge is going to see them and is going to think the person who raised these magnificent two children who are coming in here with all of their energy and their sympathy and their love, that that person is not a career criminal. That person is not a menace to society. That person is not somebody who needs to live the rest of his life underground behind bars. And so when you put all of those things together, the good work that he did raising those children, the trauma that he and they overcame, the trap and the box and the cage that he felt he was in at that moment, that he made the decision to do those robberies, plus then the ongoing harm that would be caused by them losing another parent, they've already lost one. That is a compelling mitigation case.

[Jake Halpern (Interviewer/Host)]

All right, in some ways, I say this at the beginning of the podcast. I say this is a story about punishment. What should be the consequences for Keith's action, right? What should be the punishment? And this is a discussion that I had with Bob McCullough, and I asked him, help me understand the motivation for wanting Keith Giamanco to be in prison for 20 years because the taxpayers of the state of Missouri are paying for this. McCullough's response was deterrence, basically, which is, I think, a common thing with prosecutors. And I'm asking you, what's your sense of what justice ought to look like like this in a situation with. With. With Keith?

[James Forman Jr. (Legal Expert/Guest)]

Well, let me. I will answer that question, but let me first say that, right, classically in criminal law, there are these theories that justify punishment, right? Deterrence is one of them, right? We want the world to know that this is the kind of sentence you're going to get, because we want the future Keith Giamancos of the world to. To not resort to robbing banks when they're in a crisis. And the fact that it's high profile is going to help McCulloch justify that argument to himself, because people are going to learn about this sentence in the news. The other theory of punishment is this idea of retribution, right? That an eye for an eye. You have to make the victim whole. These victims were harmed that day. They suffered that day.

[Podcast Host/Announcer]

And.

[James Forman Jr. (Legal Expert/Guest)]

And to make them whole, Keith has to suffer, right? And the third big rationale that is often argued is incapacitation, the idea that you need to be held behind bars because if you're not, you're going to do more Crimes right now, I don't think the incapacitation argument was powerful here. I don't think a lot of people thought, certainly not that you needed 20 years for that.

[Sponsor/Ad Voice (Odoo)]

Right.

[James Forman Jr. (Legal Expert/Guest)]

But I do think what. When I hear McCulloch on the tape and I think about prosecutors, that it was both the retribution and the deterrence argument that were kind of motivating them. Everybody's instincts about these sorts of things are going to be different. I'm somebody who believes that the United States has one of the largest prison systems in the world. And I believe that we should have a system that is dramatically smaller than it is. And one of the reasons why we have this human rights crisis and this racial justice crisis that is mass incarceration is because of how long our sentences are. So I'm someone who believes that in general, we should have a massive reduction in the length of sentences. There are countries, European countries, that in essence, have the maximum sentence, with the rare exception of the. Like, the mass murderer. Right. They basically have the maximum sentence is 20 years. That's the longest you can get for any crime.

[Jake Halpern (Interviewer/Host)]

Yeah.

[James Forman Jr. (Legal Expert/Guest)]

I'm somebody who believes that we should import that model here. And the impact of that is then it pushes everything else down. To me, this is a crime that did not involve a weapon and did not involve an act of violence. Nobody was shot, Nobody was stabbed. It was a monetary crime. In my opinion, a crime like that shouldn't be getting 20 years. And so, and if we had a maximum for very serious crimes of 20 years, then you might look at it and say, oh, well, we're giving 20 years to the guy who, like, murdered somebody. Well, we're not going to give Keith Giamanco 20 years.

[Jake Halpern (Interviewer/Host)]

Yeah. James, we've talked in the past, particularly in season four, about what does justice look like. That was a very different case. It was a hate crime case. And I remember being surprised in that situation that you basically were arguing for clemency and saying that time served in a prison cell should not be the only metric by which justice is measured. And I'm wondering if you feel that way here, and if so, what does restorative justice look like in Keith's case?

[James Forman Jr. (Legal Expert/Guest)]

Yeah, I was thinking about the tellers. I mean, to me, when I think about the victims here, overwhelmingly the ones that I think about are the tellers. I understand that the banks were victimized to an extent, but it's those tellers that I'll always remember. And if I was a prosecutor and I was thinking about whose interests am I trying to protect and Whose interests am I trying to vindicate? For me, it would be those people that came to work to do their job, who were harmed and who were hurt by the actions of this man. And I know from talking to other people who have been victims of crime, that often in those circumstances, what people are looking for is that basic human interaction of having somebody to look them in the eye and say, what I did to you was wrong and I'm sorry. And I'm going to tell you a little bit about why, about who I am and what led me to that day. And I'm not telling you that to excuse my actions at all. I just want you to understand the context for what happened. And then those people want a chance to look that person in the eye and want to say, here's how it felt for me. You might be thinking, oh, this was nonviolent and you just had a note. But from my standpoint, I was terrified that you had a weapon. I was terrified that you were going to pull a gun out. I was terrified that I might die. And in the case of the one teller, my child, in my unborn child, might die with me. And I want you to know how you harm me. And I want you to know that I still think about that day. I still live with that.

[Jake Halpern (Interviewer/Host)]

And you think this has some sort of, to some extent, that occurred within the courtroom, but it wasn't with that purpose in mind. Right. In other words, the victims explained the effect this had on them. Keith talked a little bit about the mitigating circumstances, but the framing of all that was different. Right. They weren't talking to one another.

[Sponsor/Ad Voice (Epglis, Spinquest, WWII Documentary)]

They were talking.

[James Forman Jr. (Legal Expert/Guest)]

It's completely different. I mean, just on a minor level, I mean, just think about. We both have kids, we talk about our kids. I mean, think about the smallest thing. Your kid violates curfew. Your kid calls you and says, I'm gonna be home by midnight and then isn't. And they show up at 2:00'. Clock. Right. AM two hours late.

[Jake Halpern (Interviewer/Host)]

And you know, that's never happened in the Halperin household.

[James Forman Jr. (Legal Expert/Guest)]

And you know that at the time you talk to them that they were lying.

[Sponsor/Ad Voice (Apple Card)]

They.

[James Forman Jr. (Legal Expert/Guest)]

They were not planning on coming home.

[Jake Halpern (Interviewer/Host)]

And I.

[James Forman Jr. (Legal Expert/Guest)]

You feel terrible as a parent. You were lied to. You were directly lied to by your child, who, you know, everything you have done to raise them, all the sleepless nights, all of that. Right. That is a harmful thing. And what you want is you want them looking you in the eye and admitting that they did wrong and apologizing for it and committing not to do it again. You don't want some elaborate third party thing where they're talking to somebody else. The court process is not set up to produce the kind of intimate, face to face acknowledgement of harm, acknowledgement of pain and commitment to act differently in the future. The court process isn't set up for that.

[Jake Halpern (Interviewer/Host)]

Okay, I'm interested in what you say. And I obviously have had that same experience, James. And our kids are friends and they're contemporaries, and I've been in that spot.

[James Forman Jr. (Legal Expert/Guest)]

In fact, my son might have even been here when he didn't come home from curfew.

[Jake Halpern (Interviewer/Host)]

I can neither confirm nor deny. But my question is, in that situation, James, your hurt and your interest in resolving this is linked to the fact that you have a deep and existing relationship with your son. The part where I'm tripped up here is what about the teller who has no relationship with Keith and maybe just wants to move on with their life? I am just pushing back on the idea that victims would necessarily want to be in proximity or have anything to do with someone that put them in that situation.

[James Forman Jr. (Legal Expert/Guest)]

They won't always, but some do. And right now we don't give any the opportunity. We don't give anybody the option of having that be part of the way that they get made whole. We tell them all that. The only thing is you can come down and testify and we're going to try to get the longest sentence that we can. Yeah, like that's the whole framework. So I guess all I want to say is I think we underestimate people's capacity to not necessarily forgive because you don't want to put people in a position where they have to offer forgiveness, although they might. But we underestimate people's capacity to be helped or partially repaired or made better or made partially whole by having the chance to be face to face with the person who is truly prepared to acknowledge the harm that they have created and apologize for it.

[Jake Halpern (Interviewer/Host)]

Yeah, I hear that. This was a commenter from Spotify that was flagged to me by my producer. This is talking about Keith. Such kindness by the police for an old white guy. I'd love to hear a similar story about a black father. So many of which have had to do the same for their families and were beaten, slash murdered by the police while being arrested for trying to care for their families. Were you hearing this story and seeing kind of racial dimensions to her? Was your mind going to thinking about how this might have played out differently if Keith were someone of color

[James Forman Jr. (Legal Expert/Guest)]

throughout? I mean, starting with the arrest which the commenter is talking about.

[Sponsor/Ad Voice (Apple Card)]

Right.

[James Forman Jr. (Legal Expert/Guest)]

That moment when Keith is pulled over by the police. Right. A few miles from the bank after leading them on some manner of kind of a high speed chase. Right. And we have, you know, I mean, black kids shot and killed holding a toy gun. And so for sure I had that reaction. I also had the reaction throughout the, the fact that Good Morning America was interested in his story, the way the police treated the, you know, the girls when they came to their house. So it seemed to me throughout the process that there was an amount of privilege that he was getting. I will say that I'm trying to work towards a system where we level up and everyone gets treated that way. So I don't want to have a reality where I say, well, I'm mad that that happened to you. Right. You should be beaten and mistreated and your family, your daughter should be taken into custody just because that would happen to a black family. I want to flip it and I want to say to black families, to poor families, to families of color, we're going to give you the Keith Giamanco treatment.

[Jake Halpern (Interviewer/Host)]

James, thanks so much for breaking this all down for me. Really appreciate it and look forward to having you on again.

[Sponsor/Ad Voice (Apple Card)]

Fantastic.

[James Forman Jr. (Legal Expert/Guest)]

I had a great time and I look forward to our next conversation.

[Jake Halpern (Interviewer/Host)]

This episode of Deep Cover the Family man was produced by Isaac Carter and Amy Gaines McQuaid. It was edited by Daphne Chen. Our executive producer is Jacob Smith. Mastering by Jake Gorski. Original scoring and our theme were composed by Luis Guerra. Our show art was designed by Sean Carney. Fact checking by Annika Robbins. Special thanks to Karen Shakurji, Morgan Ratner, Kira Posey, Jake Flanagan, Corrine Gilliard Fisher, Eric Sandler, Christina Sullivan and Greta Cohn. I'm Jake Halpern.

[James Forman Jr. (Legal Expert/Guest)]

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[James Forman Jr. (Legal Expert/Guest)]

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