Sleight of Hand – When a Touchy Case Disappears in Court

What's up my A-NGers? Thanks for tuning in to another week of public defenders and fellow badass criminal defense attorneys holding the people accountable, holding our oppressive government to their burden, shining a light on the unjust, unjust, nothing close to justice system, fighting off our nation of mob mentality, one not guilty at a time.

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And lastly, I want to thank my A&G production team for their help this season. Season five wouldn't be happening without them. I especially want to thank public defender Matthew Kellebrew for the wonderful job he did in editing this particular episode. Yes, I'm talking about the episode that is about to air once I stop talking. So…

Without further ado, here's this week's episode of another Not Guilty.

So there's four or five bailiffs, right? Like, right behind me. And so the judge is like, will the defendant please rise? I rise with him.

And I'm just whispering to him, not guilty, not guilty, not guilty, not guilty, not guilty, not guilty.

And they say, you know, we, whatever, you know, in the state of California, we find the defendant not guilty of sexual battery, right?

And I swear to God, my client had one tear coming down in his eye, on the side of his eye, right?

This big, tough guy. And he had that one tear fall off of his eye. And it was just incredible. And that's why we do it.

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.

Rejection. 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.

All right, guys, welcome back to another Not Guilty. It's your boy, David D. here, delivering the freshest not-guilties of this nation of the United States of America, that these United States of America have to offer one not-guilty at a time.

That's another not-guilty for you, bringing you the stories live straight from the trenches of justice or injustice, whatever you want to call it.

I'm excited about today. I have two dope public defenders in my presence in the A&G studios, also known as my living room.

Excited today. We got co-hosting. We got my boy, Waleed. How you doing?

Good, good. What's up, Dave?

How you doing? I'm good. I'm good, you guys. Waleed and I, we go way back.

Way back.

We started in the office together, so.

Summer of 2011.

Woo! Hot summer. It was hot that summer.

It was a hot boy summer.

It was hot, dude.

Waleed was my man, though.

I remember when we started in the office and then Waleed was like, I'm going to bring a coffee pot for everybody, right?

Yeah, I did.

And then I saw you walking on the street and I went and picked you up to carry the, or did I drive you back to the parking lot?

No, I think, I think, I think because we had to park so far, I think I drove up to the building.

You met me outside the building to take possession of the pot to bring it inside so I wouldn't have to walk 20, 20 miles uphill holding a coffee pot.

That's right, man.

We were a team back then.

Even then.

Even then.

Still our team.

So it's good.

Glad to have you on the show today.

Thanks.

Also glad, guys, but today's not about Waleed and I. Today's about our dope public defender of the day.

We have a fellow L.A. County public defender. We have Ali here today. Ali, how are you doing?

I'm doing well. Thank you for having me.

Yeah. Do you want to say your full name?

Yeah. My name is Ali Siddiqui, and I am a public defender for the past four years in Los Angeles County. I work in Pomona right now.

Okay. Okay.

Yeah.

Welcome to the show.

Thanks, man.

I remember when I just started in the office, too.

Right.

Yeah, I was doing prelims for you.

He did some of my prelims.

He would text me like, what the hell should I do, man?

And David would respond, I'm on vacation.

It's your case now, buddy.

I know, I did.

I was like, I'm on vacation, dude.

Sorry.

That's why you got the case.

Someone has to handle it.

Right.

But then they also tell you, if you have any questions, call the prelim attorney.

I saw Ali yesterday at the Avon rally that we did for our colleague, Avon.

He approached me, said he had a not guilty he wanted to share.

So I was like, well, we got to get him on the show right away.

It sounded hot.

It sounded fresh.

So tell us about this case.

What was your client charged with?

My client was charged with 243.4.

It's a misdemeanor.

It's a sexual battery.

He was charged with, or he was alleged to have grabbed the left breast of a person who

was doing security at the homeless shelter that he was residing at for the past six months.

What is a sexual battery?

Can you tell us what the government has to prove to be able to prove a sexual battery?

Yeah, you have to touch a person in an area of their body that is considered like their

breast or, you know, their butt or...

They're intimate.

It's like an intimate...

Intimate area, right?

Yeah.

Intimate part of the body.

Okay.

And you have to do it with this specific intent of either sexually gratifying yourself,

arousing yourself, or, you know, make...

Or doing it for the pleasure of the other person, right?

Or like you're trying to get somebody off, right?

And whether it's you or somebody else.

Okay.

Yeah.

Some sort of sexual gratification involved.

Right.

One of, you know, one of the defenses is it was an accident, right?

And so that's where intent comes into play, you know, statements, whether they were made

or not, before or after.

And that's where that all comes into play.

Okay.

And what are the consequences of being convicted of that in the state of, the great state of

California?

In the great state of California.

The very progressive state of California.

Head of the curve.

In the progressive county of Los Angeles, let's say that, right?

The country follows our lead.

If California's doing it, it must be okay.

Right.

290 registration, man.

That was, that's something, you know, I've got, I've got a personal rule that I, I cannot

plead a person out to that.

Right.

I, you know, if the client lets me.

So they have to register as a sexual, sex offender for at least what?

So it's a 10 year period as a misdemeanor.

Up to like a few years ago, it used to be lifetime.

Life, right.

For, for any kind of 290 crime, it was always lifetime.

Right.

Yeah.

And when he says 290, he means the sex registration crime.

Exactly.

Now, luckily, you know, there's tiers to it.

So, so for a person who's never committed any type of 290 offense, right, it's going to

be a 10 year, 10 year tier.

So they have to register for 10 years.

Every year on their birthday, they would have to go to the police station and tell the police

where they're living.

And, um, you know, they have to keep track of this person.

So it's funny how it's like on your birthday too.

Right.

Right.

It's like happy birthday to me.

Let's go to the police station.

Uh, but then there's even more consequences, right?

Like, so if you register, right, once you register and say, you know, you, you fail to register

again, right.

Um, that could become a felony, right.

Or, or if you, you know, you can't live in certain places, right.

You can't, you can't be alone with certain people, right.

Children, right.

You, you, you can't, um, if you ever get incarcerated again, there, there's a target on your back,

you know, whether or not people, people find out about it.

So you can't, you can't live across the street from an elementary school.

No, you couldn't live in, in this neighborhood where we are right now.

Right.

Cause there's a school nearby.

All right.

So those are the consequences.

Uh, yeah, no one, uh, when, when I was in my misdemeanor practice, even in my felony

practice, yeah.

You never want to plead anybody to, uh, to sexual registration.

Cause just, it just, the, the consequences after the case is over for the defendant, for

your client are just, they can't, they, it affects their housing.

They can't get housing, which leads to poverty, to homelessness.

And there's always substance abuse issues.

It leads to more crimes.

And it's just, they just cycle in and out of prison for like the rest of their life.

And nobody cares about them because they're sex offenders.

So fuck them.

And especially for, for my client who was, you know, already staying at a homeless shelter,

right?

He was staying in this kind of a transitional homeless shelter where they were trying to

put him back on his feet and he was back on his feet.

He had been there for about six months.

So he wouldn't be able to go back to that homeless shelter or really any homeless shelter

anymore.

Right.

And then he's just going to be some guy bothering people.

Right.

In the street.

And then he's going to pick up another case cause he yells at somebody and he got criminal

threats now.

Right.

All right.

So what did your client allegedly or touch someone's breast at a security?

So can you go into the more details about what he allegedly did?

The prosecution's version of what he did.

So he was returning back to the shelter after leaving.

So whenever you leave the shelter and you come back, you have to go through security again.

He's coming into the security and he sees, you know, the complaining witness and she's got

her security wand in her hand.

He comes in and he starts saying things like, you are being too professional.

You're being too professional.

You know, you're going to like me and just trying to, he's joking around with her.

Right.

So then she wants him down.

And according to her, you know, he, he grabbed her left breast and she moved back.

She recoiled and in the police report, it goes like, you know, then the grip left off of

her breast.

Right.

It was like this squeeze.

Oh.

And, um, and she immediately, you know, freaked out and, um, she told him to leave and she

called the police.

Okay.

So that's what the police report says.

Right.

Okay.

What are you thinking when you read this police report?

Um, I'm thinking that, okay, this is a, this is a case that's going to require 290.

And, um, you know, at this point I, it, the police report mentions that there's a surveillance

camera footage.

Okay.

Right.

At this point I haven't seen it, but of course the police officer writes, you know, I saw it

and it's clear he touched her breast.

Right.

So, um, you always have to take that with a little bit of grain of assault because, you

know, you've, you've got to actually see it and, you know, videos, especially surveillance

cameras, it's, it's sometimes it's tough to see everything perfect.

Right.

It's not pixelated perfectly.

So, um, well, I mean, two different interpretations always, maybe three.

I mean, a picture is worth a thousand words.

A video might be worth a million.

A million words.

A cop's version of what a video shows is worth nothing.

It's worthless.

It's worthless.

Right.

Right.

Right.

Or that cop just wants to, you know, reaffirm what he's, what, what the complaining witness

told him.

Right.

And so he's just saying, yeah, I watched it.

It's clear.

He comes, he grabs her breast.

She's upset.

And she tells him to leave.

So you get, you get the case, you read the report, you get the charges and you go meet

the client.

Right.

Right.

So what was that like?

Yeah.

What did he say happened?

Was he in custody or out of custody?

He was in custody.

Okay.

He, he, he was actually in custody for, for something else.

Okay.

And this was a warrant that, that he had.

Okay.

So he was just responding to that, to that warrant on the day of the arraignment.

So, um, you know, his, his, his initial reaction was just like, you know, I ain't no weirdo.

I didn't do that.

You know, I don't need to do that kind of stuff.

Um, and you know, I looked at his record.

He didn't have any type of, of record of these types of crimes.

I'll be it.

He had a lengthy record.

And how old was he?

He was 41 years old.

Not too talkative.

Didn't really trust me.

Like most people initially.

Right.

When they meet you, the conversation was short.

You know, it was, it was, uh, you know, we're going to plead not guilty.

I'm going to ask for OR, you know, you've got a warrant.

So either way, you know, you're probably not going to, even if we, you release on this,

you still got to deal with your other case.

Right.

We're going to come back in a few weeks.

I'm going to ask for discovery.

I'm going to get the discovery and we're just going to keep pushing.

Right.

And, uh, so that's the, the first conversation was short, but he pretty much told me, no,

it didn't happen.

Okay.

All right.

So then, yeah.

So then what happens next in the development of the defense?

Right.

So, so next I, I get the videos.

Um, I, I remember, I remember the DA is just so confident and just like, you know, I don't

understand why you're not waiving time.

I don't understand why he's not pleading.

Uh, I can't wait till you watch this video.

You're going to realize that, you know, um, you guys need to plead.

Right.

So I get the video, I get the 9-1-1 call.

I start with the 9-1-1 call cause it's just chronologically, you know, how I like to handle

the case.

And so I listened to the 9-1-1 call and this, this lady, she must've been like 68, 69 years

old.

The security guard?

Yeah.

She was, uh, she wasn't really like one of her roles was security, right?

She, this was a homeless shelter where she had many roles, right?

One of her roles was to pass out food, right?

One of the roles was to be security on this unfortunate night for her.

And, um, so she, she calls the police and she's hysterical.

She says, I've just been sexually assaulted.

You know, this man just grabbed my breast and that was the call.

So I said, okay, all right, here we go.

Then I get to the surveillance camera and, um, there's two videos, there's two different

videos.

The first video shows him touch her back, um, in, in a, you know, in an intimate way, right?

He's, he's touching her back, but she has no reaction, right?

It's like, okay, no big deal.

I know this guy, you know, I've seen him for the past six months.

Um, no big deal, right?

And then maybe about 10 seconds later, um, he reaches out in her direction of her chest.

And, um, and the reason I say it like that is because to me, it was unclear a little bit

if he actually touched that area or not.

What's the angle or that you're able to see the two interact?

Is it just her back and his front or what?

There's actually a multiple angles, of course, because, you know, technology has improved so

much for us that there's camera angles everywhere.

So you see, it's like on the top of like the ceiling basically, and it's, uh, pointing

towards the metal detector and you see, um, him go through the metal detector and then

you see him, her wand him.

And she, um, for context, she's about, she must be five foot, barely five foot, maybe five

foot one.

He must be six one and 200 pounds.

And she, like I said, she was about 68 years old, frail, frail, frail woman, right?

Um, um, um, hunched back, you know, glasses.

And, um, again, this towering figure, right?

And in the video, you, you just see him reach out in her, in the direction of her chest, but

you don't see him, you know, reach out with his palm forward, right?

As you would expect somebody when they're doing what's alleged, right?

You, you see him kind of, his, his palm is kind of turned to the side.

The part of the video that's, that's totally clear though, is, um, this complaining witness's

reaction.

Okay.

Right.

Cause remember I told you guys that the first touch, she has no reaction, right?

It's not a big deal to her cause it's on the, on her back.

Um, but the second touching, you see her immediately react and kind of push back or pull back.

And then you see her kind of raise the wand, right?

The, the security wand at his, his face, which again is towering over her.

And you see, um, my client kind of put both of his hands up like he's under arrest and he

steps back and she starts going over to the phone, right?

To, to presumably call 911.

And, um, you see him walk backwards to give her space, but then rush her again to approach

her to kind of, I think to maybe apologize or to be like, no, I, you know, I, I, that

wasn't what I was trying to do.

I'm sorry.

That was an accident or whatever.

You know, there's no audio on this video, right?

So I'm just presuming that, you know, he steps back and then he comes back to her like, Hey,

you know, we, like, we know each other, you know, this is not, I've never done this.

You know, I wasn't trying to do that.

I'm sorry.

But, um, eventually she tells him to leave and he left and that's, and then the police

come and that's, and that's a police report.

Okay.

And that's what the police, so then you look at the video and you see that, which kind

of seems like he did touch her, right?

Right.

Absolutely.

And then of course, you know, as, as PDs.

Like something happened, there was a reaction.

Something happened.

And the reason I say something happened is, again, is based on her reaction.

Right.

Right.

Is, is, is she didn't react earlier, but now she has this, this immediate reaction of

like, no, you can't do that.

So that was, that was my case.

And then of course I met him again and I told him, you know, um, I told him what I saw.

I told him that, you know, it, she had this, this visceral reaction and, um, and she, she,

she, and it seems like you touched her breast.

Right.

And he, I, I still remember his, he, he just kept repeating the same thing whenever he saw

me.

He said, I ain't no weirdo.

I ain't no weirdo.

All right.

I ain't no weirdo.

I don't got to do that.

I don't got to do that.

Right.

I was like, all right, man, I get it.

And then, so I was like, all right.

So it sounds like we're going to trial.

Well, did the district attorney ever offer your client, uh, a plea deal in which he wouldn't

have to register as a sex offender?

No.

And, uh, of course that's, I asked for that at arraignment.

I asked for that when I got the surveillance.

I asked for that after I watched the surveillance.

I asked for that on the day of trial.

I asked for that in between trial.

So you're, you're, you're, you're nodding to the DA that you're confident about this case.

I'm telling the DA we're going to trial.

Oh, please, please.

Right.

Yeah.

No, I'm saying, I'm telling her that, you know, I'm telling this DA that I don't think

this is 290.

This is not worth the 290 conviction.

You know, it, it, it may be some other type of crime.

Um, maybe a battery, right.

Maybe an, um, unwanted touching, but it's not, it's, it has no sexual intent to it.

So you're asking for a non 290 offer.

Your client will plead to any other charge.

She'll do custody time anyway.

She doesn't mind.

Um, you're not getting it.

So then what, how are you prepping your defense?

Like what's, is, is there any type of witnesses you're interviewing?

Are you going to the crime scene yourself?

So, um, yeah, so I did, um, I made an investigation request.

Uh, there's only one witness in this case.

So I, I had my investigator go speak to her and I had my investigation request, which is

basically just, yeah, the police report's correct.

Right.

Okay.

And, um, and so, you know, I told them all this and, and again, when you're in custody,

you know, you have the right to go to trial within 30 days, right.

For misdemeanor.

So when we come back, it's already day 14 of 30, right.

So at that point you can only really do one of two things, whether it's plead or announce

ready for trial.

Right.

Or continue the case or, or wave time and continue the case.

Right.

And, um, and I said, we're going to announce ready for trial and maybe when we're getting

closer, they'll offer you a non-290.

I still remember we, we got, it was like a, maybe a day 20 of 30, right.

And, and I've never started a trial on day 20 of 30.

It's always like, you know, okay, we'll come back in a week.

Right.

Right.

And I remember this DA, um, walking in to my courtroom and saying, we're ready.

We can start today.

Right.

And I was like, wow, she, she's, she's very confident.

Right.

And she was like, you know, she, I have no 402s.

I have nothing.

I'm ready.

I'm ready to go.

And just to clarify, at least in our practice, day 20 of 30 is like the first, it's like you're

kind of in trial mode, but really you announced ready.

And then you come back for trial on day 28 of 30, like the following week.

You know, it's unheard of to like show up on day 20 of 30 and then literally expect

people to pick a jury and be ready.

It's, it's, it's called readiness.

Yeah.

The day 20 of 30 is called a readiness.

Are we ready for trial?

And it's, and it's really not if, if the defense is ready.

Right.

Because I've already previously announced ready.

It's, it's, it's, it's about the DA.

Just the DA announced ready.

You get close for your client and you're going to start picking a jury the next day.

Right.

Okay.

Right.

So the next day happens, you know, I'm ready to go.

I'm, I'm in my three piece.

I'm ready.

Um, you know, all three pieces.

I'm, I'm ready.

I'm ready to go.

When he started, he was wearing three pieces.

I remember him on the, on this demeanor road wearing three pieces.

Yeah, man, you know, I, I've always, you know, seen public defenders and heard public defenders

as people who, you know, are sloppy and don't dress nice and, you know, just don't try hard.

Right.

And, and, and dressing for me is, is honestly more so for my clients.

Right.

It's, I, I love fashion.

I love to look good and, and to feel good, but I want my clients to feel like they have

a sharp attorney.

Right.

And who looks good and who, who, who, you know, appears to be, um, a sharp defense attorney.

Dude, some client, I, you know, it took me a while to like figure out my style as a public

defender.

But once I started dressing my style, like, I would get complimented all the time going into lockup with clients.

And they love it when you look good.

Absolutely.

They love seeing their lawyer look good.

Again, so I'm ready for trial.

I remember I was, you know, you always, you know, no matter how many trials you've done, and I'm still a young misdemeanor attorney, you know, this was probably number nine for me.

And I was nervous, you know.

I was scared, you know.

I was like, what am I going to say to these jurors when they see this video?

How am I going to stand up there and talk about this?

And I was just coming off of a child molest trial, right?

So I was like, man, this just might be the only cases that I've ever tried, you know, these sex cases, right?

Because, again, like I said, my own personal rule is I cannot, I can't live with myself pleading somebody to a 290 unless, you know, they're like, I don't want to go to trial.

Don't let me go to trial, right?

And so I've managed to make sure every single one of those clients goes to trial.

So, but this case, this case was a case that almost never went to trial.

And it's because on the day of trial, I'm sitting in the trial court and the judge says, your client's refusing to come out, right?

And I'm shattered.

I gave the clothes, you know, I'm ready.

I prepped so hard and I'm like, what?

What do you mean?

He's not.

So I'm like, give me some time.

Let me go talk to him.

Right.

So I go, I go into lockup and I remember my clients like, I'm wearing no Pee Wee Herman clothes.

What is this?

What are these clothes you gave me?

Yeah.

What did you bring them?

I gave him, I gave him, I just brought him a collared shirt, like a white collared shirt and some slacks.

Black pants.

And, and, and, um, yeah, just black pants and a collared shirt.

So just black pants and a white shirt.

That's it.

That's all it was, right?

You're going to look like Pee Wee Herman, man.

Pee Wee Herman, right?

I was like, I was like, sir, that's, that's what I look like.

I'm wearing a white shirt and a black pants.

You got a three piece suit on.

Right, right, right, right.

But, um, so, so he says, you know, um, I, I'm wearing no Pee Wee Herman clothes.

Um, you know, I don't want to go to trial.

Right.

And I'm, I'm just like, what, you know, we're here.

Today's the day, man.

You know, you've been in custody for, for like so long.

Let's do this.

And he says, no, I want to plead.

I'm ready to go.

Oh man.

And I'm, I'm like, sir, you, you understand, right.

That you're going to have to register for a sex offender for 10 years.

Right.

You, you get that.

And he was like, whatever, you know, I'm, I'm not going, I'm not going out there.

Right.

The second day he, he didn't come to, to, to court.

Why didn't he come out the second day?

He missed the bus.

Right.

But, but they were telling me that he refused to come to court.

Yeah.

I mean, that's very true.

The sheriffs are so bad at transporting, uh, clients the, for the last year, ever since

the pandemic really.

And they always like lie and make up some story as to their dysfunction.

Right.

But unfortunately, you know, for me, it was the judge had already given him the advisal and

put on the record that we're going on without you now.

Any interesting 402s?

Um, motions in limine to limit the evidence that comes in the court?

I always try to exclude all surveillance videos by saying, you know, she can just testify to

it.

Why do we need to see the video too?

Right?

Like, it's just, it's kind of cumulative, your honor.

We don't need to see both the video and hear her say the same stuff.

Right.

And, um, naturally everybody laughed at me and said, no, the video's coming in.

No one's laughing.

No.

Yeah.

Right.

Right.

We're laughing with you, man.

I think even my client laughed a little bit too.

All right.

All right.

And so I know your client, uh, was not brought for the beginning of jury selection.

Can you talk about jury selection though?

Luckily, you know, the judge, um, you know, the judge told the jurors that, you know, for

no, don't take this to mean anything.

You know, he's not here.

Don't, you know, don't assume why he's not here.

Okay.

His attorney's here.

His attorney's ready.

We're going forward with trial.

Right.

Um, luckily my, my client showed up in the afternoon.

Okay.

Right.

So it wasn't, it wasn't, he wasn't gone for too long.

Right.

So what year I get up there, you know, after they just hear that it's about a sexual battery

and, you know, it's, it's a very serious charge and it's very uncomfortable to talk about,

you know, intimate body parts to a bunch of strangers and talk about stuff like this.

Right.

And, um, I do my usual, you know, uh, talk about the burden.

Talk about reasonable doubt, presumption of innocence.

I remember I was like, you know, does anybody know somebody, you know, a person who, whenever

they make a joke or whenever they talk to you, they kind of, you know, tap your arm or they,

they just, they just, they're very touchy.

There was like eight or nine people in the box who raised their hand.

And for context, there's about 45 jurors in this courtroom.

Right.

So like eight hands go up.

Right.

And I'm like, wow.

I'm like, great.

I see hands.

I see juror number one, two, three, four, seven, eight, nine.

And so I, I pick one person.

And, um, the first person I remember, I said, um, juror number seven, who comes to your mind

when, when, when you think about a person like that and she goes, my uncle, she goes, my uncle,

you know, he, he hugs me for too long or he holds me for too long.

And I'm like, ah, that's not the response I wanted.

That's, that's the complete opposite response I wanted.

Then I said, okay, all right.

Um, you know, like, how does that make you feel?

I try to, you know, give her space to react and respond.

And so I tried to move on as quickly as possible, but I also didn't want to cut her off.

And I wanted to, you know, give her that space.

And you got eight or nine more potential stories to go through.

So I'm like, I'm like, okay, I need to, I need to pick, um, I'm going to pick a man.

Right.

Yeah.

And so I, I, I picked the man, um, sitting a few seats next to her.

And I'm like, I'm like, journey number 11, who comes to mind for you?

And so he says, you know, I'm, I'm not a touchy feely guy, but, but my coworker, man,

like he, he's always like that.

He's always just like tapping my arm or putting his, his hand around me or something like that.

And, and it doesn't make me uncomfortable, but I don't, I don't, it's, I don't like it.

Right.

And so I, so that was a great response for me.

And, and I kind of went with that and I said, who else, who else agrees with him that, you

know, it's not, it's not that it's, you know, illegal or, you know, it's, it's unwarranted,

but it's just, you know, it's just, you just, you just wouldn't, you wouldn't want it to

have to be done to you.

Right.

And I said, well, you know, you didn't, you didn't let your call, like you didn't say,

you know, coworker, you can touch me.

Right.

He just did it or she just did it.

And, you know, no big deal.

Right.

And so sure enough, you know, eight or nine other people kind of said the same thing.

Like, yeah, no, like, I don't, it's not like I didn't, I didn't tell him or her, you can

do that.

Um, but at the same time, I don't think that it's wrong or, you know, in, in, in terms

of wrong, illegal, right.

It doesn't rise to the level of a crime.

Yeah.

Right.

So, so even something sexual, exactly, exactly.

Right.

And so I, I got a really, really good responses.

Um, and I felt really good about the way that I was able to plant the seed of, you know,

um, I didn't, obviously I didn't tell them that, you know, he's a handsy guy.

I just said, you know, who do we know anybody who's touchy feely like that?

Right.

And so I w I was really happy that I got to plant that seed because I knew what the videos

were going to show.

Right.

And, and I wanted them to just assume, um, that that's just how he is.

Right.

He's just, he just, he's just a touchy feely guy.

He's a loving guy.

Right.

Nothing inappropriate about it.

He's affectionate.

Right.

Positive words, loving, affectionate.

You know, um, um, intimate, you know, being intimate with the person doesn't always have

to be sexual.

Right.

You want to, you want to create some sort of a connection there.

Right.

A physical touch.

Right.

Um, of course it can always cross the boundary.

Right.

And that's why we, we, we went to trial, but, um, I felt very, very confident about my

voir dire and I was really, really happy about it.

Um, and, um, I sat down.

Um, so what about the, what about the DA's voir dire?

What was hers like?

Cause you get up there and be like, Hey, just guys, people are just touchy feely.

You know, big deal.

Right.

And the DA comes up and is like, what on voir dire?

You know, a lot of DA's spend a lot of time on the single witness theory, right?

And, and it, and my judge, um, at that time, the presiding judge, the single witness theory

is that the DA goes up there when they have, uh, and they tell the, the, the jurors, Hey

guys, the law says that if there's one person to testify to an event is enough evidence to

convict somebody.

Just one person is all I need.

And the law says that's okay.

Can you follow that law?

And if I only call one witness to the stand, yeah, is that, is that going to be enough for

you to find the person guilty based on that testimony?

Right.

And the jurors like have problems with how the DA's phrase it.

Cause they're always the big, it makes the D the jurors think that there's no evidence

of the case.

If there's one person testifying and the one person says this, then the jurors automatically

have to accept it and have to vote guilty and jurors push back on that.

And then the DA tries to kick them off the jury for that when they, and they're misstating

the law cause the law is if one person is enough to testify to something, if you believe

that one person can prove any fact, but it still matters whether or not you believe that

but prove beyond a reasonable doubt, you know, and it's credible.

So that's all these, but the DA just like phrases it like that.

So does that sound about right in your experience?

And it's, um, you know, most DA's, um, don't really get, um, personal or, you know, try

to, um, you know, connect with the jury.

Right.

They just, they have, they want to make sure that they understand that they only need to

prove it through one person.

Right.

And, and so my judge, he just kept shutting her down.

Like, you know, counsel, you're, you're confusing them.

You know, you don't, you know, they're going to get a jury instruction.

And so he kept shutting her down, which was great because he didn't shut me down one time.

Right.

I got up there seamless, 40 minutes and not one time did, did, did the judge say anything

to me.

Right.

As soon as this DA gets up, the judge is constantly interrupting her.

Right.

And not that she had a flow, but you know, he kept messing up that flow.

Right.

And so, um, you know, she did what she did.

I honestly, I don't really remember her, her voir dire.

I, I, it was uneventful and it was, all you know, is that you were wearing a three piece

suit and you look good.

That's right.

And you sat down and then you were looking good.

And, and I looked to my right and there's no client.

But sure enough, um, the client showed up for the DA's voir dire.

Okay.

Right.

So, uh, because that was in the afternoon.

So even during like the opposing parties, like voir dire, I, I try to, you know, appear

to be interested.

And so I, you know, I'll turn and I'll look, I'll, I'll react to questions and, you know,

I'll, I'll react to answers by the jurors to just make them understand that, you know,

I'm, I'm, it's not that I'm just turning my back on her.

So tell us about opening statements then.

My opening was, um, basic, you know, it was, it was about the same three topics that

I talked about in voir dire, you know, presumption of innocence, the government's high, high burden

of proving this case and proof beyond reasonable doubt.

So I kept it short, kept it real short, uh, maybe five minutes.

Okay.

All right.

And, um, and then we were off.

All right.

So I imagine the DA, so the DA starts, it's their burden.

They have to prove the case.

And I imagine the first and only witness they put up would be the complaining witness, our

sympathetic 68 year old woman who works at a homeless shelter and does everything for them.

Right.

And again, I, I, I, I seen what she looked like in the video.

Right.

But when she walked into that core, man, let me tell you that I had sympathy for her.

Right.

She, she was clutching her purse.

She was hunched back.

She was, um, she appeared to be frail.

Right.

And, um, and so she, she took, it was like, it felt like the longest time ever from her entering

into the door and sitting into the, into the witness stand.

You know, it was just a slow walk.

And I was like, oh my God, I think maybe I just lost it.

I remember I, I, I crossed my leg and I just kind of, I put my, I put my hand on my face

and I just, you know, I stopped moving and I just, and she got up there, you know, the

DA gave her a few softballs, um, talking about where she works.

And then she went straight into it.

Sure enough, the DA plays that first part of that video and she says, yeah, he touched

me.

I, I didn't react.

It was no big deal.

And then she plays the second video and then she pauses it.

It's a still video of her, of his, his arm out.

Right.

Um, touching her and she, she pauses the video.

You see, you see a still of my client's arm out in the area of the complaining witness's

breast.

Right.

Right.

Her left breast.

Okay.

And, um, it's, it's a big screen in this courtroom.

Right.

And she pauses the video and she says, ma'am, where is he touching you right now?

And she goes, my lower back.

Right.

And I, I'm like, Ali, do not react.

Don't make any sudden movements.

This is amazing.

Oh my God.

And sure enough, she asks the question two more times.

And this complaining witness doubles down.

Objection.

Ask and answered.

No, hell no.

Really?

Hell no.

Oh, I will.

Let him.

We already have an answer here.

No, because we don't need a different answer here, judge.

And, and, you know, you, you two are way more experienced than me.

And so maybe that was my mistake, but you know, it actually worked in my benefit because

two more times she said my lower back, back of my shoulder.

Right.

And so then the DA, the DA who was so confident, the DA who on day 20 of 30 said, I'm ready

to go.

The DA who said, I have no 402s.

The DA who did not kick one person off the jury started freaking out.

In court.

In court.

And I could see her, you know, kind of noticeably getting uncomfortable.

Right.

And again, is she like starting to look like shuffle reports and papers, but not really

absorbing anything.

Just kind of like as if there's something like, you know, like buy some time.

Where did I put that exhibit?

Yeah.

Right.

So not that I know what that looks like.

She, she, right.

I don't know.

They've experienced that.

So, so she kind of, you know, she kind of gathers herself and she plays the 911 call.

Right.

There you go.

And something I, I, good job, DA.

Something I forgot to mention, um, which is pretty important was in my 402 or, um, actually

she, she did have one 402 and her 402 was, I do not want Mr. Siddiqui calling this a sexual

assault.

Right.

She said, this is, this is a sexual battery.

And if he keeps saying sexual assault, they're going to think it's much worse than what, than,

than, uh, just a touch.

Right.

And that was her only 402 was he's going to hyperbolize this by keep repeating sexual

assault, sexual assault.

Cause that's what I had wrote in my 402s was, you know, a sexual assault.

Right.

Um, so the judge, the judge kind of agreed, the judge kind of agreed and was like, well,

yeah, you know, a sexual assault has this connotation and that.

And I was like, all right, whatever, you know, but once that 911 call came out, right.

That 911 call, you hear her say, I've just been sexually assaulted.

Yeah.

Yeah.

Right.

So she plays that 911 and, um, she, and again, that's how it comes out.

And she goes, ma'am, you heard the 911 call, right?

She says, yes.

She said, why are you telling us that it's your lower back or your shoulder?

And she goes, well, I'm nervous.

I'm nervous right now.

It, it was my breast.

So after she confirms it's her breast, you know, of course the DA is like, well, you

didn't allow him to do that, you know?

Um, and nothing further, you're right.

And no more questions before the nothing further part, the complaining witness was trying to

distance herself from my client, like in the way of, I don't know him at all.

I've never spoken with him.

I don't know him.

Right.

I'm like, you know, you've been working, she's been living there for six to eight months

and you work there full time and you see him at least once a day, you give him food and

you, you have to at least say hi or something, right?

You're, you're seeing the same person every day for about six months.

Right.

So for you to constantly say, I don't know him at all.

I don't talk to him, this and that, that's really irked me.

Right.

Because, because in the police report, she actually told the police on another interview, on a follow

up interview that I'm quite familiar with, with, with, um, with my client and I have regular

interactions with him.

Those were the two quotes, right.

That I, I, I wanted to drill her about.

So the day ends, right.

I get back to the office and I, I'm like, you know, maybe I can get that non-290 offer.

I wanted, again, the only reason we're in trial is because I don't want him to have to

register.

Right.

So I text the DA, I'm like, Hey, you know, um, it sounds like it's just a battery, right?

It sounds like it's just an unwanted touching or something.

Do you, can you speak to a supervisor?

Can you speak to your head deputy about what happened in court today, what transpired in

court?

And I, I think I told her, you know, you're going to lose this case.

And so at least you, you can at least get him on probation, right?

You can at least have him be on probation for a year.

Um, but come on, like, let's, let's, let's get this over with.

Right.

Her response was, Ali, this happens all the time.

People, people recant, people feel uncomfortable.

It happens all the time.

I'm not, I'm not talking to anybody about this.

I think we have a strong case.

She still said it was my breast and we're moving forward with this.

And I said, okay, I said, all right.

So that whole night, I, I must've spoken to, um, six or seven different felony attorneys

throughout the County.

I really didn't want to ask any questions, right?

I didn't want to ask any questions on cross, nothing.

But then I was like, ah, I'm still a young attorney.

Pretty sure my supervisor is going to be in the back.

You know, my head deputy will probably be there.

And my client, you know, the most important person, I don't want him to feel like I'm

not doing anything.

And again, you always think about appeals.

So, so you're like, you know, I want to make sure I ask something.

I focused my questions on their relationship.

I focused my, my, my questions on ma'am.

You keep saying you don't know him.

You keep saying that you've never spoken to him.

And so I, I really tried because of how she entered into the courtroom and because how

she, you know, was on the stand on direct, very soft-spoken, you know, very frail.

Um, I tried to be very soft-spoken with her as well.

Right.

And I tried to, but this next day she was completely different with me.

Right.

I think the DA must've told her that like, you know, he's going to be aggressive or he's

going to do something because her, her, her responses were so evasive and you could start

to hear the higher octane in her voice.

Right.

I was like, Oh wow.

Like you can actually talk louder.

And so I, I started off with, you know, you work at this homeless shelter.

Right.

Um, and it's true, right, ma'am, that you see him at least once a day.

Right.

Yes.

Okay.

And it's true that, you know, one of your tasks is to provide food to these members of

this homeless shelter.

Right.

Yes.

And, um, started quoting her words in the police report.

And I said, isn't it true that you spoke to a detective a couple of weeks after this incident?

Yes.

I spoke to a detective and you told him, quote, I have, I'm quite familiar with him.

And she did not want to admit that.

She said, no, I'm not.

I, I don't know what you're trying to say.

Right.

And she was getting very argumentative with me.

And I was, I, I don't usually like to turn my head and look at the jury.

Right.

Cause I think that's a little weird, but I, I, it was kind of a natural reaction where

I was like, I put my hands up and I was like, what?

Like I'm, I'm, I have, I have the police report in my hand.

Right.

And I'm like quoting it.

I'm like, ma'am, you told this, you said, I'm quite familiar.

And so three or four times she was like, I don't know what you're trying to get at, but

I'm not familiar with him.

I'm like, ma'am, I'm just trying to ask you if you made that one statement.

And she said, and then of course I showed her the police report.

I refreshed her recollection about it.

And she said, well, yeah, I said that.

And then I said, okay, but you also said I have regular interactions with him.

Right.

And so again, she was like, uh, no, I mean, what do you want me to do?

Just throw the food at him.

Yeah.

I'm going to be nice.

I'm going to like say hi and this and that.

And I was like, I'm just asking you if you made these statements, I'm not trying to get

into any other, you know, whatever you think I'm trying to get at that's, I'm just asking

you, did you make that statement?

Right.

So she said, yes, I made those statements.

Right.

So I just talked about that.

I didn't talk about any of the touching.

I just said, you know, this has never happened before.

Right.

He's never touched you ever before.

Right.

Yes.

Yes.

Yes.

So I, I kept it about, you know, she was lying about not knowing him and not talking

to him and not, you know, having a relationship with him, you know, uh, and she was lying

about ever talking to him.

Right.

So I kept it at that.

And then I kept it at, you know, this has never happened again.

And I kind of, and I just kind of just sat down.

So the DA, the DA rest, the DA rest.

Okay.

Yes.

Um, the DA rest, you do a motion to dismiss.

I do a motion to dismiss 1118.

Um, and actually, no, it wasn't denied right away.

I don't know if he was just posturing, but the judge said, you know, I'm going to take

this under, um, submission.

Wow.

We come back the next day and he says, yeah, that's been denied.

So, um, we're, we're ready for closing.

Right.

And cause there's no defense case.

You're not gonna put on defense.

Of course.

I, I spoke to my client and I, I asked him if he wanted to, to testify.

And he said, no, I told him that, you know, I don't think you need to cause I think we've

got a good case.

Yeah.

Right.

And he said, he said, you know, I've ran with you this far, keep running.

Nice.

And I said, all right, let's do it.

So, um, I, I prepared my closing and, um, I, I never write, um, I never take anything

with me when I'm, when I'm closing.

Right.

I don't have any papers in front of me.

I don't keep it on the side or anything.

It's just, uh, it's just off the dome.

Right.

And of course, you know, I, I, I prepared it.

I wrote it.

My, my theme was a reasonable doubt is all about reasons to doubt the prosecution's case.

Right.

And then I said, let me tell you what are some of the reasons to doubt this case, this complaining

witness.

She's had nine months to think about this incident.

She called nine one one.

She said, I've been sexually assaulted.

She had nine months to think about what she was going to say in court.

And when she was finally hailed into court, she took an oath to tell the truth.

And the first opportunity she gets to say what happened, she says, I was touched on my back.

She says, I was touched on my shoulder, on my lower back three times.

I said, ladies and gentlemen, you would imagine that she would be screaming off the top of

her lungs that this man touched my breast and she would be clear, abundantly clear about

it.

No reservation, no hesitation, but she wasn't.

And I, I didn't call her a liar.

I just said, she felt like she was sexually assaulted.

She believed that she was sexually assaulted when she called nine one one.

But when she sat here and she's had all this time to think about it, she, she gave you all

the truth three times, three times.

She told you it was not her breast.

And finally, after the DA forced her, after the DA literally put those words in her mouth,

she said, yes, it was my breast.

That's not believable.

That's not credible.

And that's not guilty.

Nice.

I like that.

And then of course I talked about the previous, the previous video where, you know, he touched

her back and I said, you know, she had no reaction to that.

She had no reaction to that probably because it's happened probably because, you know, they

have some, some type of relationship.

You all noticed how she was so soft spoken with the DA and so polite.

But as soon as I, I didn't even ask her really any tough question and she was so evasive with

me and she, she was, she was very argumentative with me.

You saw the complete shift in this witnesses, the way she was answering my questions and the

way she was answering the DA's questions.

Why was she so defensive even after she read the police report?

Yeah.

Why did she misinterpret what I asked her?

Right.

Maybe she misinterpreted what my client did.

Right.

Maybe she has misinterpreted that.

And then I just ended at, you know, there's absolutely no evidence of sexual intent and, um,

Right.

Please find him not guilty.

How long was this closing?

Like 15 minutes, 20 minutes?

Usually my closings are around 20 to 25 minutes.

Yeah.

Um, maybe 30.

I go 45.

You know, always.

Minimum.

I remember it was like, maybe like two 30, three o'clock.

I just left the courtroom.

Right.

And, um, I had, I had to do other cases cause I'm still not done.

I have other cases in the courthouse.

So I went to go do my other work and, um,

It's the badge of honor of a public defender.

Like you do a jury trial and you go right back in court doing other cases, you know?

Right.

I wouldn't want it any other way.

But, um, so then I started doing my other work and, you know, I had one of my colleagues,

one of my good, good buddies.

He was there with me for moral support and he came back to court and cause he, he, he

wanted to hear the verdict, right?

He wanted to be there for me.

And, um, he was like, you know what?

I'm going to leave cause it looks like they're not coming back today.

Right.

It's, it's already going to be four o'clock.

Like I'm going to head out.

Right.

I'm like, okay, well, I'm, I have to stay here until four 15 until, until like they, excuse

me.

So I'm just going to chill here.

Right.

And so he leaves like within five minutes of my buddy leaving.

Um, I get a call from the clerk saying we have a verdict.

Right.

And so I texted my boy and I was like, yo, come back right now.

They got a verdict.

Right.

He rushes back.

Um, he's sitting in the crowd on, on the defense side, you know, he's got my back.

Literally.

And I walk into court, man, and there's like six bailiffs in there, man, for this misdemeanor.

Right.

And I'm like, I look at my bailiff and I'm like, you had to call backup.

Like, what's the deal here?

You know?

And she's like, no, man, it's a judge.

She's just, he's just, he's really, he, he really likes to have the person stand up when

reading the verdict.

Right.

And this bailiff told me like, I've told him a thousandth time.

That's not safe.

He needs to be sitting down.

Right.

Because if it's guilty, like, you know, a million things can happen.

You know, we've actually had people run in Pomona, you know, in court.

Um, so this bailiff was like, yeah, no, that's why I had to call these people.

And it was like, you know, it's, it's always intimidating.

Even if you're an attorney, it doesn't matter.

It's, it's always intimidating to have all these police officers around you.

Like, it's not, you talk about how optics for the jury, right?

Like the jurors are going to see six bailiffs surrounding the defendant, our clients, because,

you know, being like, this is a dangerous man.

They're telling the jurors, this is a dangerous person.

Yeah.

Luckily, they're doing that after they've already broke their, after they've already written

their verdict, right?

Yeah.

I mean, I did a trial, I did an attempted murder trial, I don't know, six months ago.

And I just told the bailiff, I was like, you're standing close, too close to my client.

Right.

Yeah.

You need to stop standing so close to him.

He's like, oh, I'm sorry.

I wasn't doing it on purpose.

Like, just go stand over there.

So the rest of the trial, he stood like over there.

I was like, you're standing too, don't be fucking standing.

So there's four or five bailiffs, right?

Like right behind me.

There's like one by the exit door.

There's like the original bailiff at her desk.

And there's like three behind me, right?

And so the judge is like, will the defendant please rise?

And so I, I rise with him, you know, and, and I'm standing next to him and the judicial

as Histon starts to start to, to read out the complaint.

Right.

And, um, I'm just whispering to him, not guilty, not guilty, not guilty, not guilty, not guilty.

Right.

And, um, and they say, you know, we, um, whatever, you know, in the state of California,

um, we find the defendant, not guilty of sexual battery.

Right.

Woo.

And I swear to God, my client had one tear coming down in his eye, on the side of his

eye.

Right.

This, this big, tough guy.

And he had that one tear fall off of his eye and it was just incredible.

And yeah.

And that's, that's why we do it.

And you got that.

I mean, just the chill.

I get chills right now thinking about it, you know?

So like, how did that feel for you when you hear not guilty?

Like, I mean, your client's tearing up.

Right.

And I know you're there for your client, but God, that's such a good feeling.

Right.

As a, as a defense attorney.

Unbelievable, man.

Unbelievable.

Did you go back and talk to your client afterwards?

Yeah.

Yeah.

I talked to him.

Um, you know, there wasn't really much talking after that tear I saw.

Right.

It was just like, we, we had the talk after my closing, right?

You know, we had, we, like, we had a really good talk after my closing, but I just remember

the only thing I told him was, um, remember you didn't want to go to trial.

And I told you that, you know, we're going to go down swinging and we actually, we actually

came up winning.

Yeah.

Um, okay.

So we're going to close it out though.

Uh, I have one last question.

It's a question I asked all the, all our guests and, uh, Ali, you've been a public defender

for five years.

What, what drew you to this life, to this profession?

Why'd you want to be a public defender?

Yeah, I've, I've been, I've been an attorney for seven.

I've been a public defender for four.

It'll be four in April.

And, um, honestly, man, I, I've been blessed with, uh, being able to have everything in my

life, right?

I have, I have really educated parents who, um, you know, provided me with everything I

could ever imagine.

And when I got into this profession, um, I wanted to give back to my community.

You know, I'm, I'm, I'm a Muslim, I'm a proud Muslim.

And, um, I consider my work to be charitable and to, to be charity and to give back to the,

to the community.

Right.

They, you know, the prophet, he, he always talks about, you know, helping out those that

are, you know, cast aside, right?

Neglected.

And, um, to be able to, to not only practice law, but also kind of practice my, my faith while

doing it is, is a big reason for why I do what I do.

Um, and honestly, my mom, you know, my mom, my mom's a doctor, um, but I've met a lot of

doctors who, you know, they, they do it for, you know, for, for many other reasons other

than for their patients or, you know, for the interest of, of caring and giving back to the

community.

My mom, my mom is one of those doctors who, who really cares about her patients, you know,

and she always like, like growing up, I used to always hear her talk about her patients

and how much they meant to her.

Right.

And I've met other doctors who talk more about, you know, the work and how hard it was to get

there and, you know, um, and the money and the prestige that comes along with it.

Right.

But my mom always kind of instilled this kind of, um, approach to life and to work of purpose.

Right.

And so, um, I got my purpose from her and, um, my faith.

Nice.

Nice.

I feel like it deserves like a, a, a finger stab thing, right?

What's that?

I see something poetic, you know, like, yeah.

All right.

Well, that's great.

That's great, dude.

But thanks for, thanks for coming out, come on the show.

It was fun guys.

Great way to spend the afternoon.

Thank you for having me.

Okay.

All right.

Peace.

Bye everybody.

Till the next one.

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.