Fools Get Stabbed – When a Jury Schools the Judge on Self-Defense

What's up another not guilty world? Happy Memorial Day. I want to take this moment to acknowledge and thank those serving in our armed forces for their sacrifices. Some say they are fighting and preserving our freedoms as Americans. In the US we consider ourselves free from tyranny and according to our constitution our government cannot take our liberty without due process. Meaning they can't take that liberty without first having a badass lawyer aka a public defender. They're fighting.

Fighting tooth and nail for our fellow American citizens. And I can't think of a better public defender who embodies that principle that fights to keep our tyrannical, oppressive government at bay than today's guest on the podcast, Anya. Check it out. Also, I want to say thank you to those of you who have been giving us a boost on social media. Please continue to like, comment, share, retweet anything we do out there to help raise our profile. And please, please, please, please, please, please leave us a raise.

Thank you for creating and review on whatever podcast platform you find us, especially Apple Podcasts. It really helps. Lastly, I want to say thank you to the A&G production team helping out with the editing and social media and all of that. Today's episode was edited by fellow public defender Brody Sabor. Go Brody! And...

Now, without further ado, here's this week's episode of Another Not Guilty.

And the night before, when he had originally denied my request, I know Carl can attest to this, I spent the entire time kind of freaking out. Like, how am I going to argue self-defense when I can't argue self-defense?

I can't argue the jury instruction. I was afraid that I wouldn't even be able to say the words self-defense. And so I was wondering, how am I going to...

How do you argue self-defense without saying self-defense? So that was the big, you know, conundrum.

I said, if you don't know how this fight started, then we don't know who the victim is.

Welcome to Another Not Guilty. I'm David Moore. Here, along with my fellow public defenders, presenting to you the untold stories of the criminal justice system.

Objection! That assumes there's justice in the system, which there ain't. I prefer calling it the American criminal system.

These stories are about the not-guilties public defenders get on a daily basis.

In an unjust criminal system.

With a deck stacked against us.

Another Not Guilty.

Welcome back, everybody, to another Not Guilty.

It's your boy, Davey D, here, bringing you the freshest Not Guilties across these United States of ours.

I'm just darn right tuned in excited today for our guests and also our co-host.

As a co-host today, we have Carl with us. What's up, Carl?

Hello.

What's up, Carl? How are you doing, buddy?

Good. I'm good. Glad to be here.

Yeah. So, Carl, you know, like, you've been a guest on the podcast.

I have. I have.

And now you've made your way all the way to the co-hosting chair.

I am. I'm very excited. Moving up in the world.

Yeah.

It's good to have goals.

Yeah. How else has your life changed since you've been on the podcast?

Do jurors recognize you now when you're in the courtroom?

That's right. My whole life has changed since I was on the podcast. I feel like a star.

That's great.

He's had the golden buzzer moment. Everywhere he goes, there's golden confetti coming from the sky.

The Perry Mason theme starts playing every time I go into the courtroom now.

And, you know, guys, as you know, our guest today, you recognize your voice. It's Anya.

Hi, everyone.

I say this is like your third time being on our show, right?

Yeah. Third time as a guest?

Third time as a guest.

Yes.

Yeah.

I was a co-host once.

You were. You co-hosted Carl's.

I did co-host Carl's.

Because Carl's your neighbor.

He is.

Who happens to be a public defender.

And we carpool together.

Yeah.

I always call it Carl pooling.

Oh, nice.

So, Anya, you are a guest today and we're excited to have you because you're one of the top trial lawyers in our office.

Thank you so much.

Yay.

And I'm very excited.

So what case are you going to tell us about today?

Well, this was my most recent trial that I had and it was the first trial I did in the new courthouse that I've been assigned to.

So it was very exciting.

It was an assault with a deadly weapon charge causing great bodily injury.

What was the weapon?

It was a knife.

The complaining witness got stabbed.

Got stabbed pretty badly.

Okay.

Did you say nice?

Well, in my head I was like, that's how fools get stabbed.

But we don't, you know, fools get stabbed sometimes, you know.

Yeah.

Well, this particular client had a pretty minimal record.

He had a couple misdemeanors, a few misdemeanors, but he didn't have any felony convictions.

So it really would have been a pretty big deal if he had been convicted of this charge.

And so what were the prosecution's facts?

So the prosecution's facts were that the complaining witness who lives in a really nice apartment complex in this neighborhood and the apartment complex is gated and it's surrounded entirely by this like eight, nine foot tall wrought iron fence.

Um, so it's a very safe, um, so it's a very safe, protected place.

Um, and just outside of the fence and outside of the complex, there is a very, very long bike trail, bike path.

There's some old railroad tracks that run through it, but mostly people use it to, you know, walk their dog, go jogging, running or whatever.

But it's, it's pretty long.

It stretches for a while.

So the complaining witness lives in this really nice apartment complex and he had left the complex, was on the bike trail when my client was alleged to have, uh, basically come at him out of nowhere, jumped out of some bushes and, uh, started stabbing him.

And after he was stabbed, the complaining witness had to run to get help.

There was a video like, um, one of those ring or nest cameras that people have on their front door, um, of somebody in the apartment complex had it.

And, and you could see this extremely bloody guy, just like walking up to people's doors, banging on door, like help, help.

I laugh.

It's not funny, but he was really bloody.

I mean, at first it's not, it's not funny right now, but once we know what, you know, it gets funny.

Well, I mean, I, I kind of think he had it coming to him.

So that's what I was saying.

That's how fools get stabbed, you know, like, no, I'm just kidding.

Um, but he, he did get stabbed pretty badly.

It was the, the location of the stab was, uh, kind of like right below his, his neck, Adam's apple, but right above the sternum.

There's like a little, little, uh, soft spot right there, uh, in the middle of your, you know, neck chest kind of area.

That dimple.

That dimple.

So the knife went right through that dimple and, uh, started.

How's that not attempted murder?

Right.

They actually said that they were planning on amending the complaint to charge attempted murder before the preliminary hearing.

And they never got around to it.

And then I guess decided not to, but yeah, the, there was a lot of blood.

I don't know if you know this, David, but if you get stabbed right there, there's a lot of blood.

Um, okay, so he gets, this guy just comes out of nowhere and stabs him.

And then, so the alleged victim, the complaining witness now goes to the neighbor's doors and he's knocking and asking for help.

Right.

I can kind of picture it really.

I mean.

Yeah.

And, and what, what's funny, not funny is that like nobody opened their door.

They look out and they're like, Oh my God, there's this really bloody man.

I don't want to open my door.

But eventually one of the neighbors did open the door and, um, or actually he didn't open the door.

He opened his window and shouted out that he was going to call 911.

So other than knowing that he got stabbed, what did he look like at that time when he went up to the doors?

So the complaining witness was a very large guy.

He was, um, and when I say large, I mean hefty.

He was, he was probably about six foot tall, six one.

And he weighed, uh, anywhere from his own description was about 250 or 60 pounds.

The medical reports indicated he was closer to, to, uh, 69.

So almost 270.

And so he was a big guy.

And was he just covered in blood or?

Yeah.

So he was wearing, uh, just like a light gray t-shirt or tank top.

And when you see him at these front doors, it's like that scene from Carrie where, you know, she, somebody pours just the whole, all the buckets of blood.

Literally the whole shirt is covered in blood.

So it was pretty shocking to see that, that fit, that photo.

So the police and the paramedics come, right?

So the police and paramedics come, the cops started canvassing the area.

Uh, and very quickly found my client who was, who had just gone across the street and detained him immediately.

Uh, did they have any blood on him?

Yeah.

He had a little bit of blood on him.

Um, he had a little bit on his clothing, on his hands, on his face, but it was nothing like what the complaining witnesses situation looked like.

Uh, and then the police, uh, did search the bike, bike path, uh, area and found a bloody kitchen knife that appears to have been tossed away.

Sounds like a bad case right now.

Yeah, it does.

It got even worse when we got DNA results on the bloody knife and, uh, turns out that, that indeed was blood that belonged to the complaining witness.

Uh, and then there was some DNA belonging to my client also on that knife.

So it definitely tied my client to the, the weapon.

Uh, okay.

So you get the case, not looking good.

You go meet the client and what, did he testify?

He did not testify.

And actually I was not the original attorney on the case.

Okay.

Uh, another lawyer had had it, uh, I did take over, but it was still before the preliminary hearing.

So it was still early on in the stages, but the case had been continued for quite some time pre-prelim so that we can get all of the DNA results and all of that.

So you get the case as you're waiting for the DNA results, right?

Pretty much.

Okay.

What happens when you get the case?

So I meet with the client and he is a very soft-spoken guy.

He's a really agreeable guy.

He's a little guy, uh, compared to the victim.

He's, uh, I want to say he was like five, eight, 160 pounds.

So he was, he was much smaller, a hundred pounds smaller than him and very soft-spoken, really nice.

Um, didn't say much, didn't really, we didn't talk much about, you know, the, the, the facts.

Are any possible defenses coming to mind at this moment?

Well, the police report does indicate that the, the police spoke to my client at the scene and he did make a statement that he was attacked by this guy.

So we knew that this was a self-defense situation.

Okay.

All right.

But you didn't quite know how you're going to prove that yet.

Yeah, especially since I know my guy's DNA is on this knife, uh, the blood, it's all bloody and it belongs to the, uh, complaining witness.

Their client has no major injuries.

Well, here's part of the problem that we, that we had, and that was a fault of investigation.

Um, the police officers really did a pretty bad job investigating this case.

What?

I know it's pretty shocking because they're normally so great.

Yeah.

So thorough.

Wow.

Okay.

No stone unturned.

No, he, uh, what had happened was they, they never even took photos of the victim at the scene.

They didn't take any photos of my client at the scene.

There was no documentation whatsoever.

The only reason I know this guy's covered in blood, the, the complaining witness is because

somebody's ring video, you know, captures the moment where he approaches the house.

But other than that, that was the only photo I had of the complaining witness from that day.

That, that was a pretty bad photo.

Yeah.

No, the, it's now like posted on a, on my, in my office.

Cause it's so shocking when people walk by, they're like, Oh my God, that's a lot of blood.

So, so yeah, we were at a disadvantage because I know my client's statement to the police that

night was that he had been attacked by this guy, but none of my client's injuries were documented.

I know that he was taken to the, to the, uh, hospital.

Both gentlemen were taken to different hospitals.

So, but then they said, Oh, once he was clear to book, we booked him.

And then, so what is your client's statement?

He was, he was walking?

And this guy just jumped out and attacked him or what?

Yeah, that he was specific or.

He doesn't get very specific that he was just walking on this bike trail and this guy approached

him and started choking him out and, and started punching him and stuff.

And your client lives in the, in the area?

No.

So my client is, was homeless at the time and there is a tiny bit of history between these

two guys.

So it's not completely, well, I mean, it's strangers, but it is not as random as, as it

sounds in the police report.

They do have a little bit of a history.

And that history is that my client has been seen along this bike path and inside the complex

before by the complaining witness.

And apparently by other people who live in the apartment complex and the complaining witness

has told my client on previous occasions to get out of, you know, stop trespassing, get

out of this complex.

So he, he knew who he was.

There's some motivation there a little bit on the victim, on the alleged victim's part.

Yeah, there is because, you know, and, and this comes out in trial and this is one of the

things that it was argued, but this complaining witness, he doesn't like my client.

You know, if you, you live in a nice, safe complex, you know, protected and guarded from

people on the outside or, or the, or bad element and you see, you know, somebody who you might

consider being that bad element in your complex, you know, you don't like him.

Additionally, he had told the police, the complaining witness did that on a previous occasion, my

client had assaulted him with a bike chain that, uh, the victim had, the alleged victim had

approached my guy to tell him, Hey, get out of here.

And my guy takes out a bike chain and starts swinging it and charging him with this bike

chain.

And he called the police on for that instance.

He never did.

That incident had supposedly had happened two weeks prior to this.

So, you know, our theory of the case was that, yeah, our guy's minding his own business,

walking down this bike trail and the victim, I'm using that in quotes, sees him and is, you

know, he's over it.

He's told this guy, don't hang out here anymore.

Don't, I don't want to see you walking around this neighborhood anymore.

And he goes out and he confronts my guy.

So my guy's statement to the police is pretty consistent with, you know, their history.

So then what happens next in the case?

You get, you got the DNA evidence and then what happens?

So in this case, it was really important before the preliminary hearing for me to go to see

this area and see the complex and see it for myself.

I wanted to see the layout.

I wanted to see how protected this place was.

Because for me, I thought it was very strange that a person who was inside a complex would,

and this happens at night when it's dark, would go outside to confront someone who he says

has already assaulted him before or has been violent with him before.

You know, at that point, I just think that it's strange that you are protected within your little

fortress.

You know, this guy has been violent with you before.

So you're going to go out unprotected and, and confront him.

I mean, to me, that was a little bit strange.

So I wanted to see the layout.

I also did have that video from the, the neighbor's nest camera before the preliminary hearing.

And it didn't capture the incident that was off camera.

But what it did show was the complaining witness entering from the bike path, which is beyond

the, the property, walking through the complex.

Then he disappears off camera for a minute.

And then you see him going back towards the back gate as though he's about to leave the complex.

And you hear a skirmish.

You see the guy's dog kind of barking in this area of where probably the guys were fighting.

And then at some point, you know, fast forward eight minutes later, you see the bloody guy

coming right up to the front door.

So I just wanted to get a feel for the complex, um, on my own.

So that showed the complaining witness entering the apartment complex and then exiting the apartment

complex.

Yes.

Oh, and he was entering from the bike path.

Yes.

So in theory, he may have just seen your client and decided to go back and attack him.

Exactly.

So it, because the video that I received was just like a little eight minute snippet.

I don't know at what point the complaining witness went from the inside of his complex outside,

back inside, back outside.

Um, I, he had told the police he was walking his dog.

So I, for a minute thought, well, maybe he had been walking his dog along the bike path

the entire time and just walked in.

But that actually became a really important fact that was he in or was he out before the

preliminary hearing?

All right.

So how's the prelim go then?

The prelim went really well.

Um, the witness, the complaining witness testified.

And I, because I had the advantage of seeing the location and seeing this video, um, I really

wanted to get as much information from him as I could about, well, what, what was he doing

before and during and as boring as it may have sounded to the, to the bench officer, it ended

up being very important at trial.

And what was he, so what do you say then?

So he says at the preliminary hearing, I never went in and out of the complex.

I was inside of the complex the entire time with my dog.

My dog was hanging out on the little grass patch.

He called it a dog park, but it was in essence like a 15 foot squared patch of grass.

And he said, no, just, I was there.

I never went in and out.

So I knew right at the preliminary hearing that I already have him in lies.

And how did he describe the attack during the prelim?

So during the prelim, he said that he went outside to check, to see if a neighbor had propped

open the gate with a rock, which was kind of weird.

And he said he, he stuck his head out and he kind of looked around cause he wanted to see

if he saw a neighbor walking around on the bike path.

And then all of a sudden out of some bushes, my guy jumps out and starts hitting him on

the head and stabbing him all of a sudden.

Did you like lock him in a little bit during the prelim on that?

Definitely.

Especially since I, I had a video that could impeach some of his actions before the incident.

And even though I, the video doesn't show the actual fight or the confrontation between

the two, you kind of know how long it takes.

You can see on the video that it probably lasted about four minutes.

So I knew this wasn't a very quick thing.

And you were very happy after that prelim.

I remember talking to you after that prelim and you were very pleased with the way it had

come out.

I was pleased because the victim, alleged victim, came across so, he was so confident.

And in saying, I never went in and out of the property.

I just, you know, and I knew that that was a lie.

It's like, no dude, you came in from the outside, you went in and then you go back outside.

You're on video.

So I really was pleased that I could get at least a few inconsistencies that were memorialized

in the testimony before trial.

Because you knew that it wasn't just that he lied, but it sort of showed what his frame

of mind was, that it wasn't just an unprovoked attack.

There had to be some reason he went back out there, I think is what you were saying.

All right.

So now you're approaching trial.

Is there anything else in terms of pretrial work, motions, research?

No, there.

I did have an expert medical doctor appointed on the case to review the victim's, the alleged

victim's injuries to determine whether or not they actually were great bodily injury.

And kind of ironically, the, the, the, our expert is an emergency room doctor that was appointed

by the court, reviewed the records and did not think that the injuries rose to the level

of GBI, believe it or not.

Because it's just a stab?

Well, because it was, it's not that it was just a stab, but the stab didn't hit any vital

organs or vital arteries or veins or anything like that.

There was a lot of blood, but that area produces a lot of blood.

So that alone, you know, doesn't tell you how serious the wound was.

And since it bypassed and avoided anything important in that area of the body, he did not think it

was great bodily injury.

So did he say anything about the volume of blood on the shirt, the stain, all the blood

on the shirt?

Yeah, he actually did.

He kind of compared it to like a, like a little can of soda.

He said, if you take a can of soda and just pour it all over your shirt, it may look like

there's a ton of blood or a ton of soda being spilled all over, but your body has like 30

of these cans of sodas worth of blood in it.

So, you know, one can compared to how much blood you actually have in your body is, is really

not that much.

It just looked like a lot.

Wait, what do they have to prove for GBI?

It has to be greater than mild or moderate.

So it has to be like severe injuries.

More than moderate injuries.

Yeah.

It can't be mild.

It has to be more than moderate.

All right.

So you get sent out for trial, right?

We get sent out for trial.

Negotiations are, are, yeah, not so much.

I'll take time served in an apology.

Yeah.

How about brandishing with GBI?

Yeah.

No, no.

I mean, I actually said he'll take brandishing, but frankly, I'd like it to be a misdemeanor

brandishing.

That too was rejected.

He just has a misdemeanor record.

I want to just keep it as a misdemeanor record.

Yes.

And he's, I mean, he's homeless, so it probably is his knife, right?

Because.

So that's an interesting thing, actually.

When he was detained that night by the police, they asked him if he had any knives on him.

And he said yes.

And he pulled out like a Swiss army knife, you know, and it did have a blade as part of the, all the stuff that's on it.

But it was clean and unused.

So he had that in his pocket or maybe he had taken it out and put it on the ground.

But in any event, that was his knife, but that was not the knife that was used.

So our theory and our defense was, well, the complaining witness sees the guy walking down the bike path.

He gets irritated that he's seeing this guy again.

He goes to his house to retrieve a kitchen knife, and then he goes out to confront the client.

That was our theory.

It was a kitchen knife that was used.

All right.

So we got to try this case.

We got to try it.

What did you think of your judge?

Good draw?

Bad draw?

Okay draw?

So this was my first time doing a trial in this courthouse, and I was not familiar with any of the judges and their styles and stuff.

So I was open-minded.

I was open-minded.

We went to a judge who is known to be very fast.

He just kind of jams through everything pretty quickly.

Old school, you know, so it was okay.

You've been in front of judges like that before.

Please.

Come on.

Stop it.

I can handle it.

You can handle it.

Okay.

Yeah.

No, and it was fine.

And the DA who ended up getting assigned the case for trial, she was very, very nice.

And, you know, that was also really nice that I didn't have to worry that I was going to be dealing with a DA who was playing some shady games or anything like that.

No, she was very, very sweet, very professional.

Everything was fine.

So the client lucked out with that.

Okay, good.

Yeah.

So we got to trial, and the judge did the fastest voir dire I had ever pretty much experienced.

And actually, his style is really weird because he, most judges use, you know, your juror ID number, or you refer to the juror by the seat number they're in, you know.

He keeps it personal, and so he uses first names.

All right.

I like that.

So that was a little different, you know.

He's old school.

Yeah, he's very old school, you know.

I was like, yeah.

I was saying, you know, I'd like to excuse and thank juror number, you know, five.

And he says, all right, Tom, thank you.

Ashley, can you take the next seat?

And then at one point, I had asked to excuse the juror, and he goes, I'm sorry, did you excuse Kevin or Bob?

And I'm like, I have no idea.

I'm not keeping track of their first names, you know.

So that was a little different.

You know, the criminal justice system back then was about people.

Now it's just about numbers.

Yeah.

It's very numbers driven.

It's impersonal.

Let's make this not personal at all.

So, yeah, we had a very fast voir dire.

How did you handle voir dire?

What was the issues you were bringing up?

You know, the main issues was witness credibility because I knew that this witness, that their whole case rested on this complaining witness.

So witness credibility and self-defense because I knew that that's what angle we were going to be presenting from the beginning to the end.

And how do you do your self-defense questioning with jurors?

You know, I typically start off by just asking these broad generalizations, you know.

Anybody here ever think it's okay to use force on anyone?

Just ever, you know.

And you always have people just shaking their head, no, no, it's never okay.

And then somebody will kind of pipe in and say, no, no.

Well, if you're defending yourself.

And then I try to get them to just talk about it in almost like a conversation.

Let the whole jury start having a conversation about this.

But what about the issue like, because your client didn't testify, right?

He did not testify.

So what about using, you're going in the self-defense, but you're not going to have any evidence that your client's going to say he stabbed him in self-defense.

So how, that's an interesting way of how you're going to prove self-defense without having your client testify.

Did you address that in jury selection?

So that actually ended up being the whole crux of the trial.

You hit the nail on the head there, David.

What had happened was, well, I knew I could get some information out by way of police officer testimony.

From other inconsistent statements that the victim, the alleged victim, had made to them.

And then the DNA was actually going to be my other approach.

Because when the final testing and analysis came out on the items that were tested for DNA,

it turned out that the blood on the blade.

So they tested the knife in three areas.

Was they tested the blade, and then they tested two parts of the handle.

And the blade they tested, they tested what looked like blood.

And it turned out that the blood on the blade was 99% belonging to the victim and 1% belonging to my client.

And so, you know, the argument is my client's blood should not be on that blade unless there was, you know, an attack on both of them.

They were fighting each other.

So, at the very least, I was hoping to get the mutual combat self-defense.

So when you did your Wadir, you didn't have any restrictions on you by the judge about what you could ask about, whether you could ask about self-defense, correct?

Luckily, no restrictions.

And when you finally gave your opening, there had been no restrictions on that.

Because there hadn't been a hearing on whether you could use self-defense.

So you were free to talk about that in your Wadir and in your opening statement, right?

Absolutely.

And really, we don't know if a client's going to testify until that very last moment, you know, where he has to make the decision anyway.

So even though I knew he wasn't going to because he had expressed to me he did not want to testify, which is fine.

Sometimes people do change their minds.

So you just, you can never completely shut the door on that.

Did you want him to testify?

You did, right?

Oh, so much.

That's your jam.

You want, anytime you can, you put your client up.

I want to put them up.

I know I'm in the minority in this, but I love putting my people up.

Well, especially a case like this.

And this, this is one case that you really need to because his statements of being attacked by this guy to the police are hearsay.

So they don't come in unless he testifies.

So that, that really put us at a huge disadvantage, I have to say.

But you knew when you were doing this questioning and during your opening that there was going to be a hurdle.

Coming up about the self-defense on this.

So there was a little bit of a roll of the dice going on, but also at least you get to get the issue out there, right?

Yeah, you, you definitely want to put it out there because you want to plant the seed.

All right.

So then how's the, how's the case start then?

So DA opens and you know, they have their clear cut case.

Yeah.

This nice homeowner, you know, goes out there and is just attacked and then, and look at him and look at all the blood.

Just going for a stroll.

Right.

Taking his dog for a walk.

Beautiful evening stroll.

He always does.

Yeah.

And in this case, I definitely chose to make an opening statement and I gave a pretty long opening statement.

Cause I, I wanted the jury to have, to paint a picture in their minds of how it totally could have gone a different way.

Okay.

So what'd you say?

Oh, I completely laid out our theory that, you know, our guy is walking, minding his own business down this bike path, this homeowner who does not like him because he's seen him trespass before.

Who's, you know, he's, you know, he's accused our client of being violent in the past with him.

He sees the guy walking around his neighborhood and decides this, this is the last time he's had enough.

And he went out, he went out, grabbed a knife.

He went to confront our client and, you know, unfortunately during the struggle, uh, he got stabbed.

Unfortunately, it happens.

Fools get stabbed, you know, that's how, that's how fools get stabbed.

Yeah.

Uh, one, actually, I forgot one good thing that happened at the preliminary hearing was when he, the victim, the alleged victim was describing the fight.

He did admit that he left the client on the ground crying and that's when he walked away.

And I thought that that was a really great fact.

So after he gets stabbed, he left the client on the ground.

Crying.

Oh, but we don't know how the client ended up on the ground.

Um, well, he said that they were fighting.

Okay.

Oh, so, okay.

Yeah.

When asked at trial about the fight, well, how many times did you kick him in the head?

I asked, how many times did you kick my client in the head?

I don't, I don't know.

And how many times did you hit him in the head?

I, I don't know.

And how many times did you kick him in his body?

I, I don't know.

So that, I think that ended up going over really well with the jury as well.

Well, let's just, I mean, let's just ask.

So he's, I mean, he's the first witness that testifies, right?

He's the first witness.

So how does he, how does he stay?

What does he say?

So he sort of sticks to what he said at the preliminary hearing.

Although you can just tell that he's irritated to be dealing with this case.

Did he have a Band-Aid over his neck or anything like that?

He did not.

But he, he definitely didn't, you know, demonstrated the, the location by standing to the, you know, showing the jury and.

Could you see anything?

I couldn't from where I was seated.

But honestly, that, the scar is going to be so small.

I mean, if it's half an inch.

Right.

Did the DA play the video?

The, the, the neighbor's ring doorknobs and stuff like that?

Yes.

And so, you know, I kept confronting the, the, this complaining witness about, well, you came in on the video.

You're already outside.

You're coming in and you're going back outside.

What are you doing out there?

You know, because you could see my client walking down that bike path just seconds after, moments after the complaining witness.

Wait, tell us what he testified to when he, on direct.

Sure.

So, on direct, he, he stuck to his story.

He said he was with his dog inside the complex.

The whole time.

All day.

The whole time.

He doesn't go in and out.

He goes to check one of the back gates.

And then he added that the reason why he went to check the back gates is he wanted to take his dog to a different grassy area within the complex.

And so, that was his motivation from leaving one dog park grass and going to another dog park grass area.

I don't know.

It was kind of weird.

Okay.

So, then how'd you cross the, cross him then?

You know, I, I showed him still images from the video.

Yeah.

Where I'm like, okay, you see how you're outside and then you're coming inside?

What were you doing outside?

You said you never went outside.

Oh, well, I went out there to throw away my dog poop.

Oh, so you did go outside and then come back inside.

And unfortunately, that it was, I know it was really boring because the jurors were kind of losing it with the whole coming in and out and in and out.

But I knew how important that was going to be to the argument and the defense in the case.

Right.

So, he did concede that he was, he did go outside for the purpose of throwing away a bag of dog poop.

And then I said, well, now you can see yourself on the video coming back into the complex.

And he admitted that he went back to his house.

And this is where I argued, yeah, because he went to get a knife to confront my client.

And he said, no, I went to my house to get another bag for more dog poop.

Wow.

Yeah.

And his dog was just, it's funny because the dog in the video is just lying on the grass, just chilling the whole time.

So, you know, he's not pooping.

He's not doing anything.

He's not playing.

He's literally just like relaxing on the grass.

So, so then you, you, you asked him if he grabbed the knife from the kitchen then.

I did.

And he says, no, I, I didn't, I never grabbed a knife.

I grabbed a dog poop bag.

And so what else did you cross-examine him on?

Just the movements and everything.

And then, of course, when I asked him about the fight and what happened, where did the guy jump out of?

I tried to get as many details out of him as possible because the details he did give kind of didn't make sense.

I knew that the fight lasted about four minutes.

So when he's like, oh, it was just so fast and he came at me and I have no idea where he came from.

And then having that additional fact from the preliminary hearing that he left my client on the ground crying when he walked away.

I mean, you know, men usually aren't crumpled in a heap on the ground crying unless you've done something to them to get him to that point.

And so that he, but he didn't admit to anything.

Nothing.

He gave me nothing.

So then what happens next?

Well, and he described his injuries and how he went to a neighbor for help.

But that was pretty much it for him.

The prosecution also called another neighbor, the one who wouldn't open the door, yelled out the window, I'm calling the police.

So he didn't really have anything to add.

And then they called a few police officers.

And the most important witness that I thought that they called was the DNA criminalist.

And how'd that go?

She ran all the testing on the blood that was found on the knife.

And I think I'd mentioned already that the blood on the blade had, was 99% the alleged victims and 1% my client, which already presupposes my client's blood is mixed in there.

The other part that she tested was blood that was found on the handle.

And there the mixture was 92% victim's blood and like 8% my client's blood.

So that was really, really helpful because she was able to establish that both men had their own blood on this knife, which to me indicates that there was some sort of a fight or struggle that involved the knife poking each of them.

And also that the amount of the proportion of blood changes.

And so she testified that, and what I really got out of her on cross that was helpful was, had she tested, you know, the swab that she uses, they use like a little Q-tip swab.

So it's just a small little amount that they test in one spot.

Had she tested, you know, the tip of the blade where there was blood or maybe a bloody patch further down on the blade, could the proportion of blood been different?

You know, could it have been, you know, 50% one guy and 50% the other or 90% my client and 10% the other guy?

And the answer has to be yes.

We don't know what, obviously it could have been.

Did you get a chance to talk to their witness before she testified?

I did, I did.

It was very helpful since, you know, I mean the DNA stuff and all the science, unless you're a science wizard or have some sort of a science background, it could be really challenging.

So I don't have a science background and so I wanted to have a chat with her before she testified and have her kind of dumb it down for me.

So to make sure I understood the report.

I always find that's really helpful if you get a chance to just have five minutes with their expert.

Because most people, most lawyers, if they really go toe-to-toe with an expert, are going to get their rear ends handed to them.

So, but it's good to be able to talk to them right before they testify to know what you can get out of them.

And I think that's exactly what you did in this case, right?

That's exactly right, yeah.

Yeah, it was good advice there, Carl.

Well, I'm not saying I gave you that advice, even though I did.

No, it's always helpful, though.

They always say that you have to become the expert in court.

Yeah, well, I'm not going to be the expert on DNA when I've been doing it for the five minutes before the trial, right?

So, and usually these, a lot of times, these science expert witnesses, or somebody who's a non-cop witness,

they're more than happy to talk to you, and they're not defensive with you.

It's not like when you, you know, approach either a victim or a cop.

Right.

So the DNA went well?

Yeah, and actually she tested, there was an additional item that was tested for DNA, and it was my client's shirt.

My client's shirt had blood on the front of it and on the back.

And it wasn't as much blood, it was not nearly the same amount of blood that was on the victim's shirt, but there were like splatters.

So when she tested my client's shirt, she found the front of the shirt had blood that only belonged to my client.

It was 100% client blood, 0% victim blood.

And on the back of my client's shirt was a stain that had a mixture of both of their blood.

So I thought I had enough to certainly argue that this was a mutual combat situation.

Clearly, my guy's bleeding, the other guy's bleeding, there's DNA to support it.

The complaining witness has admitted to, you know, being involved in a fight with my client where he leaves my client crying on the ground.

And as I said, there were some police officers that provided some impeachment statements about, you know, who really started the fight.

I mean, certainly enough to go to a jury.

I think so.

I think so.

I mean, when judges deny our 995 motions on weak cases, they always say, maybe not enough to prove beyond a reasonable doubt, but certainly enough to go to the jury.

Yeah, enough for the jury to make that call.

So I thought that there was.

There was at least one officer.

I called some police officers to provide impeachment statements.

And the complaining witness had told one officer that my guy swung at him first but didn't connect and that the complaining witness responded by swinging back and connecting with my client.

So I thought that that was something certainly that I could use.

And then he had told another officer, and this was brought in by way of impeachment as well, that he, the complaining witness, did not feel that he had been stabbed until after he was hovering and on top of my guy on the ground.

Does that mean the complaining witness denied those statements during his testimony?

Exactly.

So you, he says, no, I didn't say that.

That didn't happen.

So you bring in the police officers who say, yeah, he told me this.

Exactly.

So they arrest.

Yes.

You bring in the officers for impeachment, right?

I brought in the, the, the investigating officer, the main detective on the case.

Um, one of the other officers, uh, the, actually the most important one whose report was most important was unavailable because he was out injured on leave.

So we brought his testimony in by way of stipulation.

Okay.

And I also called the emergency room expert witness doctor to testify.

About the GBI, right?

Exactly.

Or the, the lack of serious injury.

Yeah.

Yeah.

And what, what was the stipulation with the, the main officer?

So the officer to whom the complaining witness told that he didn't feel that he had been stabbed until after he, the complaining witness was on top of my guy on the ground.

We took the relevant portions of his report and simply read them verbatim to the jury because I had asked those exact questions of the complaining witness when he was on the test, on the stand and he denied making them.

So it's as if this officer would have just come in and verified that that's what he wrote in his report because that's what it was told to him.

And then how did the emergency room physician testify?

Oh, he was great.

He's, he, he's very knowledgeable.

Um, he had reviewed all the records, um, and was able to explain how, even though the, there was oh so much blood that it really wasn't that serious of a charge.

Although he was prohibited, the judge ruled that he could not give an opinion as to whether these injuries, whether they were serious or moderate or mild, he was prohibited.

Because why should an emergency room doctor have the expertise to be able to say how serious injuries are?

I mean, that's just absurd, right?

It should be the jurors, the laymen.

Yes.

Who have not gone to medical school, who have not seen this guy's medical records.

It should just be how much blood there is.

If there's a lot of blood, it's a serious injury.

If it's an icky picture, it's bad enough.

It's icky.

I actually was able to see that testimony.

He did a great job with the picture because the picture was awful.

And he explained it, and the DA had nothing, nothing to counter that with.

The one that he talked about the can of soda.

He did this, the can of soda thing?

Yeah, it was beautiful.

It really was.

It was very well done, and the jury was paying attention.

Yeah, it's, uh, I, I neglected to mention that in the photo, not only is there all the blood,

and he's, he's clutching his massive belly with his hand, but there's this look on his face

that looks like just, he is in so much pain.

His face is like contorted and twisted, and it just adds to the whole, uh, magic of the picture.

This is the ring photo?

Yeah.

Or ring picture?

Yeah.

It was like you just captured the still image from the ringtone video and, uh, printed it off.

Yeah, I'd been hearing about this case for a while.

Yeah.

And in the middle of trial, I saw the picture, and I didn't say anything, and I'm like, ooh.

Yeah.

That's not good.

It's a bad picture.

All right, so now I think some, we're setting it up, right?

That, that's your evidence.

Now, you've rested.

Yes.

Uh, time to, for closing statement, or closing arguments, so you want to get an idea of the

jury instructions, because you want to argue self-defense.

Absolutely.

And, but you have to ask the judge for permission for the jury instruction, right?

Absolutely.

And we just talked about all this evidence that you think you have for self-defense.

Certainly enough for a jury to consider self-defense.

And so what happens when you ask the judge?

Absolutely not.

He said, I have seen the, the defendant did not testify, and I see absolutely no evidence

whatsoever that was presented by the defense to suggest that this had anything to do with

self-defense.

Motion denied.

Just like that?

Just like that.

Because the defense, the defendant does not have to testify to get the self-defense

instructions.

There's no law saying that.

That's correct.

So you need some other evidence, though, corroborating evidence, though.

Or something to suggest there was self-defense.

You laid out all those things that you did earlier.

So what did you, what did you say in response?

I really would ask the court to reconsider because of all of the things that I've just

put out there.

And the answer was no.

So the judge denied the request and he was going to have the DA start her closing argument.

And then we were going to break for the day.

And then I was going to start in the morning.

She convinced the judge to just let both of us close at the same time the next morning.

So I used the that evening and the subsequent morning before we began trial to draft a brief

to the judge pointing out case law and pointing out all the testimony and evidence that the jury

has heard that does support that this is a self-defense case and pointing out that the defendant

does not have to testify for this to get the instruction.

Did you find any like good case law on your side?

Anything that says like, hey, look, it's just a little bit of evidence is all you need

for self-defense.

Like it doesn't have to be amounting, you know, proof beyond a reasonable doubt or even

a preponderance of evidence.

We need just some sort of like probable cause, right?

Yeah.

I mean, there was no like amazing case law, but there was enough for me to cite.

And I thought I had a very good brief.

Certainly, I think it probably would have been very helpful should an appeal have been necessary,

which luckily it wasn't.

But so I submitted that first thing in the morning and the judge said, uh-huh, denied again.

And he actually said, I don't know why lawyers keep doing this.

I say no and then they come back at me and then they give me things to read and I have

to say no again.

So, um, I gave him something to read and he had to say no again.

All right.

So what happens next then?

So now I am, I am the night before when he had originally denied my request.

I know Carl can attest to this.

I spent the entire time kind of freaking out.

Like, how am I going to argue self-defense when I can't argue self-defense?

I can't argue the jury instruction.

I, I was afraid that I wouldn't even be able to say the words self-defense.

And so I was wondering, how am I going to, how do you argue self-defense without saying

self-defense?

Right.

So that was the big, you know, conundrum.

And I don't know if there's a definitive answer to that as far as, is it, if it's just

an issue of knowing the temperament of your judge, is there any ethical thing?

If the judge doesn't give the instruction and you go ahead and argue it and they don't

shut you down, you're happy you did it.

But boy, is that a risky game?

Because if you're in the middle of that argument in front of the jury and the judge stops you,

that's a, that's a dangerous game, I think, to the jury.

Yeah.

I didn't want to do it for a few reasons.

One, because like you said, it's risky and I don't want to get shut down by the judge.

And, and this particular bench officer would be one who very happily would shut you down

in front of jurors.

Um, I didn't want to give the DA more ammunition to come back and say, this is not self-defense.

You did not get a jury instruction.

You are not supposed to consider it.

Um, plus ethically, I just also was not a hundred percent sure whether, how much I could

say knowing that the judge had ruled the way he had.

So I decided to just play it safe and not even tread on that subject whatsoever.

Sort of.

Well, without saying the words.

Right.

I never said the word self-defense.

Right.

So what was your game plan then?

At this point, it's credibility.

It's all about witness credibility.

We know that this complaining witness is a liar.

And unlike some people who don't like to come out and call witnesses or people liars, I will

come out and call a liar, a liar when I see him.

So the complaining witness, um, he lied to you about this.

And then I, I, I sometimes tend to be kind of physically demonstrative, you know, so I,

I kind of acted out his ridiculous story of how he's just going and poking his head out.

And then my client just what jumps out from the bushes because my client knew or had was

some foresight to know that the guy was going to walk out of this particular back gate at

a particular point in time.

I mean, what, what everybody saw at least on the video and potentially my client who was

walking on the bike path is he sees a guy walking towards his house, you know, how, why would

anybody anticipate that this guy was going to turn around and come back outside and jump,

you know, and, and attack anybody.

So I said, his explanation does not explain how my client's blood was on the knife, how, you

know, he denied ever touching the knife.

I'm like, but yet my client's blood's on the knife.

Um, my client's shirt is all bloody.

And interestingly enough, he can't remember how many times he hit him or punched him or

kicked him or whatever.

So, you know, you have selective memory cause you remember getting stabbed, but you can't

remember anything else about what you, your involvement was.

I think I think I may have asked him, you know, did you even remember what you did to him to

get him to be on the ground crying?

I said, if you don't know how this fight started, then we don't know who the victim is.

Oh, there actually was one, one moment that was kind of crazy that happened.

The criminalist had testified that she had only gotten those two items to test the knife

and my client's t-shirt and the detective in the case had booked, knew that my, all of my client's

clothing was booked, his pants, his shoes, a baseball cap, a sweater that he was wearing.

And there were photos taken of the inside of the baseball cap and had blood on the outside

and on the inside.

So I argued, okay, well, he's not going to have blood inside his baseball cap unless his

head is bleeding.

So where's the DNA results on that?

Where's, why wasn't that tested?

Oh, so they're selective in, in the type of forensic evidence.

Right.

So there was a question, why didn't they test?

And so the, um, investigating officer, the detective brought into the courtroom, my client's bloody

clothes and showed them to the jury.

Cause we didn't even have photos of them.

So he showed them his outerwear.

He had like a sweater on, um, like a zip up jacket type sweater, uh, that had blood on

the sleeves, his sweatpants that were bloody.

There was a photo of his shoes that were bloody.

And so the question became, you know, why didn't you test all of these bloody items of clothing?

And so the, you know, the jury was told, if you have questions about whose blood is on

those pants, you want to know, then you don't know who started this fight.

If you want to know whose blood was, I said, we know my, it's probably my client's blood

that was on the inside of his baseball cap.

He was wearing, where's the testing.

So the, the investigation was just terrible.

I love that argument.

And that argument comes, you can use that argument in so many trials.

Yeah.

If you want to see X, that means you have a doubt.

I just love that argument.

It's, uh, you know.

And I even, I think I even said it too.

I said, if, you know, if you wanted to see more of the video, if you wanted to know, like

if there was another video that captured the whole fight, would you want to see it?

Well, if you do, then you have doubt as to who started this fight.

So that's how I dealt with the self-defense.

Well, I feel like that's just a good example as to like, why, like when you go in the trial,

you kind of got to attack everything.

Cause you don't know what ruling, what judge is going to make what ruling.

And if he's going to wipe out your self-defense, you know, then you got to go with the, uh,

reasonable doubt and not enough evidence or when this was incredible and we don't have

the full picture here.

And yeah.

And if you don't have the full picture and you have questions, that means you have doubt.

There was actually one really funny moment that came from my client.

Um, and he was just so observant.

So as, as I had talked about before that this whole issue of coming in and out of the gate

was because he had to throw out the, the poop bag.

And, um, so I pulled out a bunch of photos that I had taken of this bike path from every

angle.

I'm like, do you see any?

Cause I actually didn't see any trash cans out there.

I'm like, can you point out a trash can?

Can you show me the trash can you use to throw out the dog poop?

And he eventually found a photo that did have a trash can, but it was not anywhere near the,

the property.

It was kind of like, it was pretty far away.

So I'm like, okay, all right, that's fine.

So I go back to my seat and my client who had seen another photo that I had taken from

the inside of the complex, it was already marked as an exhibit.

It kind of showed the little patch of grass dog park area.

And my client like leans over and points to a trash can that's right there in the right

where the dog park is.

And he's like, there's, there's a trash can right there.

And I'm like, oh my God, that's, you know, it's right there.

I didn't quite see it until he pointed it out to me.

And you know, that was just something that I, I brought up at closing to, I'm like,

this guy says he's going out there to throw dog poop away.

Why would you go out of a gate that, you know, will lock behind you that you can't enter back

into, go like 30 feet out of your way to throw away dog poop, figure how, wonder how I'm going

to get back inside my complex when you have a trash can right there.

And so it was just little things like that, that attacked his credibility.

And in the end, the jurors definitely did not think that he was credible.

You haven't brought up your car argument that you made in the case.

This is like while you guys are driving?

No, it was made, the argument was come up with while we were driving, but it was about

a car.

It was an analogy to a car.

It was.

I was trying to come up with, because on paper, without the self-defense instruction, the DEA

has met all of the elements of an assault with a deadly weapon.

So I really wanted to tackle how to give the jury an example of how, even though all the

elements are there, they, it, it, it's not what it appears to be.

And so I came up with this example of, um, let's say you go to a, you're in the market for

a car, you go to a, this used car lot and the DEA is the, she's the one selling you this

car and she says, Oh, I've got this, I got this great car.

It's, it's got four wheels.

It's got a motor.

It's got seats, hood, engine, you know, transmission.

Uh, it's a great car.

All of the elements of a car are met.

And then I had printed off a picture from the internet of some piece of shit clunker,

you know, and I put it up on the overhead and I'm like, and this is the car right here.

You know, do we have confidence in this car?

Is this, is this the car you want to drive your precious family down, you know, the road

in?

Do you trust that this car is going to make it even down, down the street?

And then what if you heard, you know, from the witnesses, the witnesses are the ones who

have come to court and testified.

And, you know, if, if you had heard from one witness, Oh yeah, this is, this is the best

car ever, but it only drove about 10 feet before it broke down, you know, and you are

from another witness.

Oh, it drove fine, but only drove in reverse.

Again, how much faith are you putting into this, this car and, and how reliable is it?

So I kind of made a parallel of reliability of testimony.

Um, I, I, I wasn't sure it was like a new argument.

I was testing out something new, but one of the jurors said that he kind of liked it.

So, and I think it proved the point that I was making is just because all those elements

are met doesn't mean that the, that the evidence to support them is reliable.

Does it mean you can drive it off the lot?

You're not going to be driving that thing off the lot.

That was a piece of shit.

And how long were the jurors out for?

They actually were out for about three and a half hours.

And, um, okay.

That's good.

Yeah.

They considered it.

They talked about it.

They were considering it.

They were talking about it.

Um, and what was very interesting is in the middle of their deliberations, they came

back with a one question.

Okay.

They had one question.

And this question has come, this question comes after the jury instructions.

Where the judge has said, there's no evidence of any self-defense whatsoever.

So he hadn't given you the instruction.

He ruled there's no self-defense.

There's no evidence of self-defense.

Yes.

And the jurors say what?

Where's the self-defense?

Can we consider self-defense?

So at this point, I look at the judge.

I'm like, judge, please.

Can I now get this self-defense instruction?

Clearly they're talking about it.

They think it's relevant.

They think it applies.

Please.

Fuck this judge.

And the, the DA of course says, I think that the judge's response should be, there is no

evidence of self-defense and you should not consider it for any reason because it is not

applicable in any way in this case.

I mean, I'm a little exaggerating a little bit, but basically her position was completely

the opposite.

And so the judge says, no, I'm not going to give you self-defense.

So even after all of that, when the jury's coming back begging for self-defense, he says,

no, you're not going to give it.

But I just think that's beautiful though, that he gets confronted with that.

You know, it's, it's, it's just wonderful because he's going to have to think next time,

do I want to be in that position again in the next trial?

If the next time, you know, you can say to him, judge, do you want to have to answer one

of those weird jury questions about whether they can consider it?

Just give it and you don't have to worry about it.

Like you're so in the right, you, you, I mean, the jurors validated you.

This judge clearly made the wrong choice and he wouldn't correct it later on.

We see this in other, in other episodes we've had on self-defense where the judges don't want

to give self-defense.

I mean, like it's just this common thing where they just, they get so critical of the defense

and its evidence and they're like, oh, you don't even get the self-defense, but they're

never, they're never critical of the prosecution's evidence.

Yeah.

And it's weird.

It's like, what harm is it going to do?

Like, just give it like, what's the harm?

If there's no evidence, then the jurors will see that and they won't.

I mean, if you're so confident that there's no evidence of it, then you don't even have

to worry about it.

Yeah.

Cause there are elements that have to be proved.

So if, if, you know, if we can't make the elements, then what's the harm in giving it?

And his response, he, you didn't actually say what his response was.

I haven't said, yeah, no.

He didn't, he didn't not respond.

So he, uh, the judge did provide a written response to the jury when they said, can we consider

self-defense and his response was beautiful?

It was, you are the judges of the evidence.

Oh.

Which is a yes.

Okay.

Okay.

So that was his backhanded way of basically saying, y'all can consider whatever the hell

you want to consider.

Okay.

At least that's how I see it.

Okay.

So it, I thought his response was fantastic.

Kind of made up for it a little bit.

I mean, he should have read the instruction.

He clearly, he clearly should have, but he was covering his own rear end at that point

because then it looks really funky that you're reading an instruction after the sides have

argued.

So he's trying to save his record at that point.

Right.

But he knew darn well that since they were considering, he couldn't, he couldn't say

no because then your appeal is done.

I mean, that's a, that, that's, that's gotta be overturned if he says no at that point,

if you lose.

And it is a true statement.

They are the judges of the evidence.

Right.

The trier of facts.

That's, that's, that's it.

So, um, they deliberated for three and a half hours.

That was their only question.

And then they came back, not guilty.

Yay.

Anya saves the day again.

Oh, it was a good feeling.

It was a righteous.

I thought it was righteous.

You know, sometimes we win those cases where we're like, oh, I didn't think I was going

to win that one, but, uh, cause maybe the facts suck for you.

But in this case, I, you know, I truly feel like this was a mutual fight between these

two guys and unfortunately this, uh, complaining witness got the, uh, the pointy end of the

knife.

And, uh, client was good afterwards.

He was fantastic.

I mean, he's always been super nice, super agreeable, giving me all the time I needed to

prepare.

Um, never had a single complaint.

So he was great.

We'll see.

So, um, how do we close it out then?

Anya, you've, you've already told us why you want to be a public defender in episode 20

of the first season.

And then we close out last time with Ju just saying you still like the job.

So how do we close out this episode for the trifecta, you know, for your third time?

For my trifecta?

Yeah.

I still, still like my job?

Yeah.

Still trucking away?

I'm still trucking, man.

I mean...

Still grinding?

You know, we get new cases every single day.

We, uh, we don't get to pick our cases.

Some of them are pretty crappy.

And so anytime you get to go to trial and have a victory, it's sweet, man.

Well, thanks for being on the show.

Thank you.

I always appreciate having you because I always feel like I learned something every time you

come on the show.

Did you learn something today, David?

You just, you always, you just have to stand, you just set the standard of excellence for

us other lawyers to follow.

Ooh, I like that.

So, uh, it's always good to have you on.

Thank you.

Well, it's fabulous to be on.

Thank you so much.

Thanks for tuning in to this week's episode of Another Not Guilty.

Shout out to Daniel Mark, original A&G theme music composer, and Mike Grimm for the remix.

And guess what?

We'll be back in two weeks with Another Not Guilty, straight from the trenches.

We'll be back in two weeks with Another Not Guilty, straight from the trenches.