Mackenzie Shirilla’s Lawyer Royally Screwed Up
These are the worst cases for a defense lawyer. They rob your soul because there is no win. Everybody is devastated on both sides in ways that you cannot imagine.
One of the most popular shows in years on Netflix is The Crash. It is about a girl—she was seventeen at the time—Mackenzie Shirilla, who killed her boyfriend Dom and their good friend Davion. She killed them by going one hundred miles an hour into a wall. She lived. She was driving. They did not. She was prosecuted for murder. She was prosecuted because the data on the car showed that she was going one hundred miles an hour.
She had floored it, and she never put her foot on the brake. It looked intentional, and the prosecutor said she was out to kill Dom and Davion, and they did die. She essentially said, “This is not murder. I did not have an intent to kill.” But the reality is she does not know what she intended because she says she cannot remember a thing in the critical seconds before the crash.
The judge found her guilty of murder. She is serving fifteen years—well, she is serving life, and she is eligible for parole in fifteen years. But there are a lot of unresolved things in this case.
“Mark, let us start with intent.”
“Let me start first with—I know you want to start with intent, but you said the jury and then you corrected yourself and said the judge, right?”
“Yeah. This was a bench trial. Harvey, you have been to my office, but I do not think you have seen this thing at my office. In my father’s office, there is a baseball bat on the wall. It is on the wall so you can pick the baseball bat off.
And inscribed on it, it says, ‘If I ever ever think of waiving jury, you take this bat and hit me between the eyes.’ I do not understand what in the world was happening here that one would think—you mentioned the person was seventeen, so you could say it is a juvenile case. If it is a juvenile case, you do not get a jury. However, I do not think that this person was prosecuted as a juvenile.”
“No, she was tried as an adult.”
“Tried as an adult because you cannot get fifteen years to life as a juvenile.”
“She was tried as an adult. The issue is, was she smart taking a judge trial? I think the reason she did not take a jury trial is that a jury would have been out for blood. First of all, she has a lot of issues that on many levels she is not real likable. And on another level, she is a normal seventeen-year-old in terms of TikTok and everything else. But there were things, and I think especially killing her boyfriend, killing these two kids, I do not see how a jury would not have found her guilty of murder. I just do not see it.”
“Let me push back on that. Number one, most judges in a situation like that, unless you have a good indication from the judge—maybe they had done the preliminary hearing, maybe they had done a motion to suppress something where they have had to deal with the facts of the case—they are going to be loath to acquit somebody when you have got dead bodies. That is a reality.
Contrast that with juries. Juries are very diligent for the most part. In cases, my experience doing this for decades and decades, in cases where you have a murder charge and the question is what degree, whether it is first, second, whether it is manslaughter, whether it is vehicular manslaughter, whether it is an implied malice murder, the kind of panoply of options that you have, jurors take that very seriously.”
“In this case, one of the things that bugs me is you zoned in on the black box. For people who do not know, many people do, but all modern cars have a computer brain, so to speak. What a forensic person can do is download the data after a crash. That black box has all kinds of data as to when brakes were hit, when acceleration happened, it extrapolates what the speed was, and it does it second by second by second.”
“And we should say in those five seconds before impact, she had it floored at one hundred miles an hour, and there was zero pressure on the brake pedal.”
“And it is measured. Now, you can on cross-examination bring up all kinds of other things, but accept that for a second. Accept the prosecution’s case. Then the question becomes—you are saying she wanted to kill the other two.”
“This is the intent part.”
“Right. But before we get to intent, I still do not agree with you on them choosing a judge trial rather than a jury trial. When you do a bench trial with the judge, you presumably have a better shot at taking emotion out of it. That is what they were banking on. I spoke with Mackenzie’s father last week, and he was saying, ‘Look, at the very least, this has got to be vehicular manslaughter.’ He said, ‘Absolutely. She should have been convicted of vehicular manslaughter, but not murder because there is no intent.'”
“So, this is the problem. Intent when you are shooting a gun, if you are stabbing somebody, you talk about the intent and whether the intent is mitigated by rage or some kind of mental incapacity. That is one thing. Here, though, this is—I believe they proceeded on a second-degree implied malice. They were implying malice because they had to imply it. If it had been a straight intent prosecution theory, that would not be a second-degree implied malice.”
“I am sorry. They said intent. This was first, and this was intent. What they said was that when you look at all of the facts, when you look at, you know, she allegedly had threatened to kill him before, according to prosecutors, and she was unhinged at times.
I think you are right that you could say that she would have killed all three of them, herself included. On the other hand, she is the only one that had a seat belt on. Although, I never really understood that because even if you have a seat belt on, when you hit a wall at one hundred miles an hour, you have got to presume you are going to die.”
“All you have got to do is watch the videos on the internet of cars smashing into walls. They do that as crash test dummies. I do not care if she had a seat belt on or did not have a seat belt on. If there is no braking and she is accelerating into a wall, that is a suicidal mission.”
“Okay. But that can be murder if the perpetrator lives.”
“Absolutely. It absolutely could. But you know what else it could be? And this is where a jury I think would struggle. It could be somebody who had gotten into a rage, who had gotten into some kind of mitigating state of mind, so that it was manslaughter.”
“So what do you do? That is really interesting. Then what do you do when she says, ‘I do not remember. Once I made the turn and before I accelerated, that was the point where I just have no memory of what happened.’ I have a problem buying that all of a sudden her memory just goes away when she turns. But if you accept it, and that is what she said, the idea here is how do you show intent for life in prison when she says, ‘I blacked out. I have no idea’?”
“So, the first thing you would do if you are the defense lawyer—I do not know if it was done here, maybe you do—you get an expert to talk about whether or not this amnesia, because that is what it is, was likely a result of the impact and some kind of trauma to the head. If that is the case, then that gives the lawyer quite a bit to work with.”
“But here is the problem with that. If you say, ‘I do not even remember getting in the car and driving,’ yeah, I get it. But the prosecutor is saying it is awfully convenient that you remember everything, which she did, until those critical five seconds when she floored it and went into the wall. So what they are saying is it seems a little more than coincidence that you do not remember things when it really matters in terms of your criminality.”
“But why would you forget those five seconds? If you are the prosecutor and you are saying, ‘Oh, it is convenient. She conveniently forgets the last five seconds,’ okay. Well, why would she conveniently forget? There are no other witnesses who were in the car other than her.
Why would not she make up a tale? If what you are saying is that it was—what is the tale? Someone clever like her would say, ‘He threatened me. He said he was going to kill me.’ So you floored it. ‘I floored it because I lost my mind at that point because of this sudden rage. I had never had a rage like that before.’ She gets a psychiatrist to support that theory. She has a blank canvas, so to speak, to paint her own defense.”
“You just made her so guilty.”
“She could be guilty. But if the prosecutor is being honest about saying that she made up that she does not remember the five seconds, how does that help her?”
“How in the world does that help her? It helps her by saying you cannot prove I intended to because I do not remember what I was doing. So then does the tie go to the runner, and you say vehicular manslaughter, which is a win for her?”
“But this is where it makes zero sense. If you are the prosecutor, you do not need to get intent from her mouth. You do not need her words. You have got a circumstantial case. You have got people who were killed.
You have got the black box that shows she ran into a wall at one hundred miles an hour and did not use the brakes. The fact that she says, ‘I do not remember what happened in the last five seconds’—to my mind, that is worse for her. That is incriminating. She would have been better off making something up.”
“But you are saying she is making it up. The prosecutor is saying she is making it up.”
“But here is the thing. There was some movement of the steering wheel in those critical five seconds, and I think there was an attempt to even shift the car. The way that looks is that Dom was pulling the wheel.”
“Yeah. But the thing about pulling the wheel is that she has got control of the gas pedal. So she is on the gas. The argument or the logic would be that Dom sees what is happening and is trying to stop her and maybe tries grabbing the wheel or tries shifting the car, but to no avail. But it looks like—”
“Trying to get out of the car, grabs the wheel, and she reflexively puts her foot on the gas as he is trying to grab the wheel. Not out of intent, but out of a reflexive action.”
“She cannot be more guilty than she is right now as she sits here and as we are discussing this.”
“Okay. So let me get to another thing, because this one I think is going to resonate with you. We got some of the prison records. We submitted a form and were able to get some of the prison records since she has been in.”
“Where is she being held right now?”
“Somewhere in Ohio. It is a prison. She already has violations. She apparently did a video chat where she was partially naked. She has been getting drugs that were not her drugs—I think they were prescriptions, but for somebody else. There have been other things. She has also been on the phone with her mom talking about all these guys who are sending her fan mail that she loves certain people.
The reason I am raising that with you is it reminds me of Menendez, because she is going to be up for parole in fifteen years. I just keep thinking about the cell phone violations with Menendez, which were used as an excuse to keep them in prison and deny them parole. If she is doing that now, there is going to be enough of a list that they are going to deny her parole.
She is not thinking about the consequences here. I guarantee you she is not thinking about the consequences, because given her age, given the immaturity, and given the obvious product of her age and her upbringing, this is not somebody who is thinking in long-term strategical ways. That does not surprise me, and yes, that does resonate with me. But I do not think she is thinking parole. I think part of what she is thinking is some kind of habeas or appeal strategy.”
“She has lost two of them.”
“Yeah. Well, has she alleged ineffective assistance of counsel at this point?”
“I do not think so. But I do not see how this is effective assistance doing a—”
“Well, you know, ineffective assistance—it is very hard. I have seen ineffective assistance. For those who do not know, it is kind of the last refuge for a defendant. ‘Yeah, my lawyer sucked.’ Exactly. Harland Braun used to say when people would ask why he charged so much, he would say, ‘Once for the trial, once for the appeal, and once to defend the ineffective assistance claim.'”
“The interesting thing about this is that it is a constitutional right to have a jury trial. The waiver of a jury trial is not necessarily tactical. It is a constitutional issue. Is it structural? And was she mature enough to have made a voluntary, intelligent, and informed decision? I just think there is a lot there. I have tried—I have won these cases as recently as the last seven years. And when I say won, I had a nine-to-three for not guilty on one of these with a seventeen-year-old and the same kind of horrific aftermath.”
“I will tell you just as a personal matter, Harvey, that these are the worst cases for a defense lawyer to try. They rob your soul because there is no win. Everybody is devastated on both sides in ways that you cannot imagine. The defendant’s or the accused’s family generally does not see this coming. The victim’s family are completely harmless and innocent in this. It really is the toughest thing in the world. It is an immense roll of the dice, because prosecutors know juries are always going to come back and hit you on the vehicular manslaughter. And the fight is on the murder charge. That is really a roll of the dice. As I sit here in Vegas, I would much rather play blackjack with a lot of money than have to roll the dice on a youngster’s life for the rest of their life.”
“But that is what had to happen here. Again, I get back to—I just do not see ineffectiveness of counsel by choosing a judge trial rather than a jury trial. The best argument they have got is you have got to prove intent beyond a reasonable doubt, and there is no proof of intent because you cannot show what she did. They said she had blackouts at times, so maybe it was that. They were banking on the judge giving pause to the intent, where the judge would say, ‘Okay, we will do vehicular manslaughter.’ I do not think that is ineffective assistance where she was convicted. But I know in California, part of the problem is if you are convicted of vehicular manslaughter, the sentence on the high term or on the high side is almost equivalent to the minimum on a second-degree murder.”
“Not here. There was a good chance that she would have been sentenced more like a minor than an adult because she was so young and had only driven for a year. So I think they made a gamble. It was smart, but it just did not pay off. Gambles do not always pay off.”
“You are one of the first lawyers I have talked to who has defended the waiving of a jury.”
“Because I think this was so incendiary, and the victims were sweet.”
“They always are. That is the thing. By the way, when I started practicing, DUIs did not even have—we talk about 0.08, right? Or 0.10 or 0.05. They did not even have that when we first started. It was because of that ‘but for the grace of God’ phenomenon that legislators and judges finally came to their senses on these kinds of cases.”
“It is still ‘but for the grace of God.'”
“Right. But look at what has happened in the last forty years. To some degree, Mothers Against Drunk Drivers and that movement was instrumental in it. It started with driving under the influence, trying to change the perception. It evolved into what you have here, which is charging what was originally called Watson murders, which are implied malice. It has evolved into this idea that even absent some kind of toxicology report that shows somebody who is under the influence, even absent being under the influence, if you had notice and you drove recklessly, that itself can supply the implied malice for murder. That is an interesting development when you look at it. The reaction is, ‘This was an accident. I did not mean to.’ That does not really apply anymore.”
“I want to get to the parents in a minute, but I just have to stop you because I actually wrote a law review article on this when I was in law school because it fascinated me.”
“Was that in this century or last century?”
“Okay. It was about exactly that—that you could have two people and they do exactly the same thing. They go to a bar and they get drunk, and they get in their car and they drive home the same distance. One of them actually makes it home without a problem—well, makes it almost home, gets stopped, and gets a DUI, and nothing happens. The other one—”
“By the way, when you wrote—”
“Hold on. What was the penalty for a DUI? This is what I am getting at. It is essentially probation. It is six months, but it is probation. The second person is driving down the same kind of street, and a kid runs out, and they kill the kid. That person gets tried at the very least for vehicular manslaughter. So that person is going to go to prison for years. The other person is going to probably get probation. Yet their mental state, their state of mind, their intent was exactly the same thing. The difference is bad luck. That is the difference. Bad luck. In one case a kid ran into the street, and in the other case the guy made it until the police officer stopped him and he did not hit anybody. But they are treated radically differently with the exact same state of mind. So what you are punishing is vengeance. You are not punishing bad conduct. I have been obsessed with that since I was in law school and wrote about it. It always—”
“I have not read this. I would like to. But did you frame it as theories of crime and punishment?”
“Yeah.”
“That is what it is. What you were saying was that this is not rehabilitative. It is more the prism of retribution, which is another equally robust—”
“I am not even thinking of it as rehabilitative. I am thinking of it as punishment. What do you punish people for? Bad acts. The acts are exactly the same in terms of somebody going to a bar, getting drunk, getting in a car, starting it up, and driving on a street. The only difference is a kid ran out in one of those cases, but the conduct was the same in terms of bad conduct. You are punishing people for a result that is beyond anybody’s real control. You are looking for vengeance in one of the cases, and that is why one guy literally never spends a minute in jail and the other guy spends years in prison.”
“Yeah. It is a roll of the dice. Literal roll of the dice.”
“So, I have one question off topic from The Crash as we were getting on the air.”
“Can we say—before you do it, we are going to get into the conduct of Mackenzie’s parents in a minute. But go on.”
“Okay. This just occurred to me, and it is completely off topic, but it is lively. Did you see the order that Judge Liman, as we tape this, it is Friday, we are going to drop on Saturday—Judge Liman, who was the judge presiding, who gutted Blake Lively’s case, and then they instantly went in for a mediation? By the way, I know I promised you I was not going to abuse—but you did. My theory on the reason that they went to private mediation immediately seems to have been borne out. I do not know if you know this, but it is my understanding that Blake Lively did make a claim against her attorneys. As I think you and I discussed many weeks ago, I thought that was exactly why they went running to Brian Freedman, who represents Justin Baldoni, to get into a private mediated settlement, because in California there is a unanimous California Supreme Court decision which insulates the lawyer from a malpractice claim.”
“Yeah, but she still has to approve it.”
“Well, I do not think she can do it. She has to approve the settlement. If nobody told her that or informed her—this is my guess—maybe they did, but my guess is that they ran her into the private mediation and told her to settle. There were a lot of people who were making the claim that Judge Liman was going to give zillions of dollars. He just entered an order, told them to brief in a very short period of time and a very truncated limit on what they could say as to what he can actually award.”
“You are talking about attorney’s fees.”
“Correct. It is a bizarre case because the way it is written in California is if you file a sexual harassment suit and then somebody files a defamation suit against you and that defamation suit gets dismissed, the person who filed the sexual harassment claim can get attorney’s fees. But the twist here is the sexual harassment claim got dismissed too. So how is it that somebody whose sexual harassment claim gets dismissed can get attorney’s fees from the other side whose alleged defamation they threw out too? That is where I think Blake Lively has severe weakness.”
“I do too. This idea of somebody sold her on the idea that—and her lawyers are out there proclaiming victory because they think they are going to get some astronomical award—the order that was just issued by Judge Liman, if I were to handicap it right now, I would tell you I do not think there is any way that they get punitive damages. I do not think there is any way he is going to triple anything. I think he is going to compartmentalize or silo any attorney’s fees award as just a portion of what was spent. Talk about a Pyrrhic victory. I do not even know. I think you can almost be sued for defamation for calling it a victory.”
“Okay. Can we get back to Mackenzie, please?”
“Yes, we can.”
“I wish Branson had some footage of the parents. If you were running a crisis management firm, could you use these parents as Exhibit A of what not to do if you are involved and your child is involved in a horrific situation?”
“Here is where I think I disagree with everybody. I know people are saying, ‘Oh my god, the parents, can you believe the parents?’ I do not think the parents are bad at all. I will tell you why. Two reasons. One is the dad is getting dragged because he said, ‘Yeah, my daughter smokes marijuana. What am I going to do?’ The reality is that is true. She is seventeen years old, and you cannot control a seventeen-year-old and stop them from using marijuana. The dad said, ‘Look, I used it when I was a kid. I cannot stop them.’ Honestly, in many cases, marijuana is a win if they are not drinking. Kids smoke marijuana. The fact that the dad was open about it and was real about it—”
“I am with you on that. I do not fault that at all.”
“Okay. The second thing is—the problem I have is why did they let a seventeen-year-old girl live with her boyfriend? Then all of a sudden the parents could become the fall guy for the child, where the jury might have some sympathy for her, saying this is the way she grew up. So if that is an issue, in a way it is a good play to put that out in the open, because I think it creates some sympathy for Mackenzie. There is an aura of, ‘Oh my god, now we have an explanation for how we ended up here.’ That is kind of the lesson to be learned here. But if you are actually trying—if you are not worried about the substance of it, you are looking to try to generate some kind of result—that is why I said crisis management. I just think the approach of the messaging makes zero sense.”
“Why? What is your problem?”
“My problem is you have got to get up there and you have got to own it. She did this. Yes, she is immature. Yes, we have heard for decades about young men not having fully developed frontal cortexes. We have heard that young men up until the age of twenty-five cannot do it. But it goes to some degree also applies to women as well. You could talk about that. Or you could have at least somebody ever come to Jesus talk with this young lady and tell her that if she ever wants any hope of getting out, she has got to come to a point where she recognizes all of the damage and the ripples of damage that she has caused.”
“Yeah. Her dad said she was remorseful. Dom’s family says she was not. But wait a minute. You said you had a problem with the parents and that they did a bad job. Tell me why.”
“Because if you are doing some kind of crisis management, the last thing you want to do is throw more fuel on the fire. I just thought they came across as tone-deaf, I guess, is the best way I would put it. I think you watch them speak, especially in the documentary, and it just gives you a bad feeling. You do not have the zeitgeist stuff. It is not compelling to me.”
“But to the extent you feel that way, does not that benefit Mackenzie? Well, yes, it does in a perverse way, but it does not really help her at this point.”
“No, no, no. But during—I get it after the fact. But the parents are the parents. To the extent the judge knew about the parents and knew about her family life, if you are right, if that were the judge’s perception, he would lay some sympathy on the kid. If you had used it in real time, if it had been done in real time, if it was not kind of post hoc—that is part of the problem.”
“I just think that—look, they did not sob on camera. Well, they are not going to be performative if they do not sob. Some people do not sob.”
“I agree. I am in the minority here from the people I have been talking to, people at work and everything. They—”
“Today you are really on an island by yourself.”
“I am totally on an island. Totally on an island.”
“But I have got to tell you something. We have got something coming up that I cannot wait to talk about. I think you are going to be so interested, and I definitely want to do it on the Angry Men podcast. It is one of the most famous deaths ever. We are doing a network special on it that airs next month. When we get closer to it, I just cannot wait for you to see this.”
“You are going to tease it and not say what the most famous death ever is?”
“That is what I do.”
“Jeez. See you next week.”
“Wait, it is our. Teasing, man.”
“There you go. Got it. Bye.”
