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 you can’t imagine. So one of the most popular shows in years on Netflix is “The Crash,” and it is about a girl named Mackenzie Shirilla. She was seventeen at the time. She killed her boyfriend, Dom, and their good friend, Davion. She killed them by going a hundred miles an hour into a wall. She lived. She was driving. They didn’t. And she was prosecuted for murder.

She was prosecuted because the data on the car showed she was going a hundred miles an hour. She had floored it, and she never put her foot on the brake. It looked intentional. The prosecutor said she was out to kill Dom and Davion, and they did die. She essentially said, “This is not murder. I didn’t have intent to kill.” The reality is she doesn’t know what she intended because she says she can’t remember a thing in the critical seconds before the crash. The judge found her guilty of murder. She is serving life and is eligible for parole in fifteen years. There are a lot of unresolved things in this case.

Here’s what I’m going to show you. The decision to waive a jury trial in a case like this isn’t just a legal choice. It’s a gamble with someone’s entire life. And the question haunting this case isn’t just whether Mackenzie intended to kill. It’s whether her lawyer made a catastrophic mistake that no experienced defense attorney would ever make. By the time we’re done, you’ll understand why the black box—the car’s event data recorder—became the prosecution’s smoking gun. Why the five seconds before impact became the difference between manslaughter and murder. And why the judge who decided her fate was the worst possible audience for a story about a teenage girl who couldn’t remember anything.

Let me start with something you need to understand about criminal defense lawyers. In my father’s office, there’s a baseball bat on the wall. It’s mounted so you can pick it up. Inscribed on it: “If I ever ever think of waiving jury, you take this bat and put it between my eyes and hit me between the eyes.”

I don’t understand what in the world was happening here that one would think—wait, she was seventeen. So you could say it’s a juvenile case. If it’s a juvenile case, you don’t get a jury. However, she wasn’t prosecuted as a juvenile. She was tried as an adult. Because you can’t 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 didn’t take a jury trial is that a jury would have been out for blood. She’s got a lot of issues. On many levels, she’s not real likable. On another level, she’s a normal seventeen-year-old in terms of TikTok and everything else. But killing her boyfriend—killing these two kids—I don’t see how a jury wouldn’t have found her guilty of murder. I just don’t 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’d done the preliminary hearing, maybe they’d done a motion to suppress where they’ve had to deal with the facts of the case—are going to be loath to acquit somebody when you’ve got dead bodies. That’s just a reality.

Contrast that with juries. Juries are very diligent for the most part. In cases where you have a murder charge, and the question is what degree—whether it’s first or second, whether it’s manslaughter, whether it’s vehicular manslaughter, whether it’s implied malice murder—the panoply of options that you have. Jurors take that very seriously.

In this case, one of the things that bugs me is you kind of zoned in on the black box. For people who don’t know, many modern cars have a computer brain. A forensic person can download the data after a crash. That black box has all kinds of data: when brakes were hit, when acceleration happened, extrapolated speed, second by second by second.

And in those five seconds before impact, she had it floored at a hundred miles an hour, and there was zero pressure on the brake pedal.

Now, you can bring up all kinds of other things on cross-examination. But accept that for a second. Accept the prosecution’s case. Then the question becomes: you’re saying she wanted to kill the other two.

If she wanted to do that—if she wanted to kill herself too—there’s intent. But before we get to intent, I still don’t agree with you on choosing a judge trial rather than a jury trial. When you do a bench trial, you can presumably take emotion out of it. That’s what they were banking on.

I spoke with Mackenzie’s father last week. I said to him, “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’s no intent.”

So this is the problem. Intent, when you’re shooting a gun or stabbing somebody, is one thing. But here, they proceeded on a second-degree implied malice. They had to imply malice because if it had been a straight intent prosecution theory, that wouldn’t be second-degree implied malice.

They said intent. This was first-degree, and it was intent. What they said was: when you look at all the facts, when you look at how she allegedly threatened to kill him before, according to prosecutors, and she was unhinged at times—you could say she would have killed all three of them, herself included. On the other hand, she’s the only one who had a seatbelt on. Although even with a seatbelt, when you hit a wall at a hundred miles an hour, you’d presume you’re going to die.

All you have to do is watch videos of cars smashing into walls with crash test dummies. I don’t care if she had a seatbelt on or not. If there’s no braking and she’s accelerating into a wall, that is a suicidal mission.

That can be murder if the perpetrator lives. Absolutely. But you know what else it could be? And this is where a jury would struggle. It could be somebody who got into a rage, who got into a mitigating state of mind, so that it was manslaughter.

So what do you do? That’s really interesting. What do you do when she says, “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 her memory just goes away when she turns. But if you accept it—and that’s what she said—how do you show intent for life in prison when she says, “I blacked out. I have no idea”?

The first thing you would do as a defense lawyer—I don’t know if it was done here—is get an expert to talk about whether this amnesia was likely a result of the impact and trauma to the head. If that’s the case, that gives the lawyer quite a bit to work with.

Here’s the problem with that. The prosecutor says it’s awfully convenient that you remember everything—which she did—until those critical five seconds when she floored it and went into the wall. It seems a little more than coincidence that you don’t remember things when it really matters in terms of your criminality.

But why would you forget those five seconds? If you’re the prosecutor saying, “She conveniently forgets the last five seconds”—okay, why would she conveniently forget? There are no other witnesses in the car. Why wouldn’t she make up a 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’d never had rage like that before.” Get a psychiatrist to support that theory. She has a blank canvas to paint her own defense.

You just made her so guilty.

She could be guilty if the prosecutor was being honest about saying she made up the memory loss. How does that help her? It helps her by saying: you can’t prove I intended to do anything, because I don’t remember what I was doing. So does the tie go to the runner? Do you say vehicular manslaughter, which is a win for her?

This is where it makes zero sense. If you’re the prosecutor, you don’t need to get intent from her mouth. You’ve got a circumstantial case. You’ve got people killed. You’ve got the black box showing she ran into a wall at a hundred miles an hour and didn’t use the brakes. The fact that she says “I don’t remember what happened in the last five seconds”—to my mind, that’s worse for her. That’s incriminating. She would have been better off making something up.

But you’re saying she’s making it up. The prosecutor is saying she’s making it up.

There was some movement of the steering wheel in those critical five seconds. There was an attempt to shift the car. The way that looks is someone pulling the wheel.

Dominic pulling the wheel. But the thing about pulling the wheel is she’s got control of the gas pedal. She’s on the gas. The argument would be that Dom sees what’s happening and tries to stop her, maybe grabs the wheel or tries to shift the car, to no avail. Trying to get out of the car, grabs the wheel, and she reflexively puts her foot on the gas as he’s grabbing the wheel. Not out of intent, but out of a reflexive action.

She can’t be more guilty than she is right now as we’re discussing this.

So let me get to another thing. We got some of her prison records. We submitted a request and got them since she’s been in.

Where is she being held? Somewhere in Ohio. It’s a prison.

She already has violations. She did a video chat where she was partially naked. She’s been getting drugs that weren’t hers—prescriptions for somebody else. She’s been on the phone with her mom talking about all these guys sending her fan mail, saying she loves certain people.

It reminds me of the Menendez brothers. She’s going to be up for parole in fifteen years. The cell phone violations with Menendez were used as an excuse to keep them in prison and deny them parole. If she’s doing that now, there’s going to be enough of a list that they’ll deny her parole. She’s not thinking about consequences here. Given her age, the immaturity, being a product of her upbringing, this is not somebody who thinks in long-term strategical ways.

That doesn’t surprise me. But I don’t think she’s thinking parole. I think she’s thinking some kind of habeas or appeal strategy.

She’s lost two of them.

Has she alleged ineffective assistance of counsel at this point? I don’t think so. But I don’t see how this is effective assistance.

Ineffective assistance of counsel—”my lawyer sucked”—is kind of the last refuge for a defendant. Harlan Braun used to say when people asked why he charged so much: “Once for the trial, once for the appeal, and once to defend the I.A.C.”

The interesting thing about this case is that it is a constitutional right to have a jury trial. The way jury trial is not tactical necessarily. It’s a constitutional issue. Is it structural? Was she mature enough to have made a voluntary, intelligent, and informed decision? I think there’s a lot there.

I’ve tried these cases. I’ve won these cases as recently as the last seven years. When I say “won,” I had a nine-to-three 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: 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 you can’t imagine. The defendant’s family generally doesn’t see this coming. The victims’ families are completely innocent. It really is the toughest thing in the world. And it’s an immense roll of the dice.

Prosecutors know juries are always going to come back and hit you on the vehicular manslaughter. The fight is on the murder. That’s really a roll of the dice. I’d 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’s what had to happen here. I just do not see ineffectiveness of counsel by choosing a judge trial rather than a jury trial. The best argument they’ve got is: you have to prove intent beyond a reasonable doubt, and there’s no proof of intent because you can’t 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, saying, “We’ll do vehicular manslaughter.”

I don’t think that’s ineffective assistance because she was convicted. But in California, part of the problem is if you’re convicted of vehicular manslaughter, the high-term sentence is almost equivalent to the minimum on a second-degree murder charge.

Not here. There was a good chance she would have been sentenced more like a minor than an adult because she was so young and had only been driving a year. I think the gamble was smart. It just didn’t pay off. Gambles don’t always pay off.

You’re the first lawyer I’ve talked to who has defended the waiving of a jury.

Because I think this was so incendiary. These victims were sweet.

They always are. That’s the thing.

When I started practicing, DUIs didn’t even have a .08 limit. They didn’t have that when we first started. It was because of the “there but for the grace of God go I” phenomenon that legislators and judges finally came to their senses on these kinds of cases.

It’s still “but for the grace of God.”

Look at what’s happened in the last forty years. Mothers Against Drunk Drivers and that movement was instrumental. It started with driving under the influence, changing the perception. It evolved into charging what were originally called Watson murders—implied malice. And it’s evolved into this idea that even absent a toxicology report showing somebody 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’s an interesting development. Some people’s reaction is: “This was an accident. I didn’t mean to.” That doesn’t really apply anymore.

I want to get to the parents in a minute, but I have to stop you because I actually wrote a law review article on this when I was in law school. It fascinated me.

Was that in this century or last century?

Okay, fine. It was about exactly that: you could have two people do exactly the same thing. They go to a bar, get drunk, get in their car, and drive home the same distance. One of them makes it home without a problem—well, almost home. Gets stopped, gets a DUI, nothing happens. What’s the penalty for a DUI? Essentially probation. Six months, probation.

The second person is driving down the same kind of street, a kid runs out, and they kill the kid. That person gets tried at the very least for vehicular manslaughter. That person is going to prison for years. Yet their mental state, their intent, was exactly the same. The difference is bad luck. In one case, a kid ran into the street. In the other case, the guy made it until the police stopped him and didn’t hit anybody.

They’re treated radically differently with the exact same state of mind. So what you’re doing is punishing for vengeance. You’re not punishing for bad conduct. The conduct was exactly the same in terms of getting drunk, getting in a car, starting it up, and driving on a street. The only difference is a kid ran out in one case. You’re punishing people for a result beyond anyone’s real control. That’s why one guy literally never spends a minute in jail and the other guy spends years in prison.

It’s a roll of the dice. Literal roll of the dice.

But can we just say—before we get into the conduct of Mackenzie’s parents—I have one off-topic question.

This just occurred to me, completely off-topic but lively. Did you see the order that Judge Liman issued? As we tape this, it’s Friday; we’re dropping on Saturday. Judge Liman, presiding over the Blake Lively case, gutted her case, and then they instantly went into mediation.

My theory on why they went to private mediation immediately seems to have been borne out. Lively’s team made a claim against her attorneys. I thought that was exactly why they went running to Brian Freedman to get into a private mediated settlement. In California, there’s a unanimous California Supreme Court decision insulating the lawyer from a malpractice claim in that scenario.

She still has to approve the settlement.

Well, I don’t think anyone told her that. My guess is they ran her into private mediation and told her to settle. There were a lot of people claiming Judge Liman was going to award zillions of dollars. He just entered an order telling them to brief in a very short period with very truncated limits on what they can say as to what he can actually award.

You’re talking about attorney’s fees.

Right. The way it’s written in California: if you file a sexual harassment suit and someone files a defamation suit against you, and that defamation suit gets dismissed, you can get attorney’s fees. The twist is the sexual harassment claim got dismissed too. So how is it that someone whose sexual harassment claim gets dismissed can get attorney’s fees from the other side whose defamation claim also got thrown out?

That’s where I think Blake Lively has severe weakness. I do too. The order Judge Liman just issued—if I were to handicap it right now, I’d say there’s no way they get punitive damages. There’s no way he’s going to triple anything. He’s going to silo any attorney’s fees award as just a portion of what was spent. Talk about a Pyrrhic victory. You could almost be sued for defamation for calling it a victory.

Can we get back to Mackenzie, please?

Yes, we can. If you were running a crisis management firm, could you use these parents as Exhibit A of what not to do when your child is involved in a horrific situation?

Here’s where I disagree with everybody. People say, “Oh my God, the parents—can you believe them?” I don’t think the parents are bad at all. For two reasons.

One, the dad’s getting dragged because he said, “Yeah, my daughter smokes marijuana. What am I going to do?” The reality is she’s seventeen, and you cannot control a seventeen-year-old and stop them from using marijuana. The dad said, “I used it when I was a kid. I can’t stop them.” Honestly, in many cases, marijuana is a win if they’re not drinking. Kids smoke marijuana. I don’t fault that at all.

The second thing: why did they let a seventeen-year-old girl live with her boyfriend? Suddenly the parents could become the fall guy where the jury might have sympathy for her, thinking, “This is the way she grew up.” If that’s an issue, it’s a good play to put that out in the open because it creates some sympathy for Mackenzie.

There’s an aura of “Oh my God, now we have an explanation for how we ended up here.” Isn’t that the lesson to be learned? But if you’re actually trying to generate some kind of result—crisis management—the approach of the messaging makes zero sense.

Why? My problem is you’ve got to get up there and say: own it. She did this. Yes, she’s immature. We’ve heard for decades about young men not having fully developed frontal cortexes until age twenty-five. That applies to women as well. You could talk about that. Or at least have a come-to-Jesus talk with this young lady and tell her that if she ever wants any hope of getting out, she’s got to recognize all the damage and the ripples of damage she’s caused.

Her dad said she was remorseful. Dominic’s family says she wasn’t.

Wait, you said you had a problem with the parents doing a bad job. Tell me why.

If you’re doing crisis management, the last thing you want is to throw more fuel on the fire. They came across as tone-deaf. When you watch them speak in the documentary, it just gives you a bad feeling. The “zeitgeist” stuff isn’t compelling to me.

To the extent you feel that way, doesn’t that benefit Mackenzie? In a perverse way, yes. But it doesn’t help her at this point. During the trial, the judge knew about the parents and her family life. If that were the judge’s perception, he’d lay some sympathy on the kid. If it had been done in real time, that’s part of the problem.

They didn’t sob on camera.

Some people don’t sob.

I’m in the minority here. Everyone at work disagrees with me.

Today, you’re on an island by yourself.

I’m totally on an island.

But I got to tell you something. We’ve got something coming up that I can’t wait to talk about. One of the most famous deaths ever. We’re doing a network special on it that airs next month. When we get closer, I just cannot wait for you to see it.

You’re going to tease it and not say what the most famous death ever is?

That’s what I do.

See you next week.

TMZ. Teasing.

Got it. Bye.

The black box sat in the wreckage of that car, silent and damning. Five seconds of data that outweighed everything else. No brake pressure. Full throttle. A wall. Two teenagers dead. And one survivor who couldn’t remember.

The five seconds became the entire case. Five seconds where the prosecution built a fortress of circumstantial evidence. Five seconds where the defense’s best argument—I don’t remember—sounded like a lie. Whether it was or not stopped mattering. The judge had heard enough.

And the judge became the final piece. Not a jury of her peers. Not twelve people who might have seen a seventeen-year-old girl and thought of their own children. One person. One gavel. One decision that sent a teenager to prison for life, with the possibility of parole after fifteen years.

Mackenzie Shirilla’s lawyer made a choice. He waived the jury. Maybe he thought a judge would be less emotional. Maybe he thought the facts were too ugly for a jury to see clearly. Maybe he was right. But the gamble didn’t pay off. And now, every time she picks up a prison phone, every time she violates another rule, every time a parole board reviews her file, that choice echoes.

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 you can’t imagine. The question isn’t whether her lawyer screwed up. The question is whether anyone could have saved her from herself.