Believe No One: Discrediting the Client's Confession

There was no video, right? So her statement like that you were able to definitively prove that it didn't happen because there's no video capturing it. That's because there's no video capturing anything. It's not like we saw him leave and he didn't go there. It's we don't know what he did or didn't do.

And the DA was trying to argue to the jury that he saw a video that showed the shooters didn't go to the car. And that just wasn't true.

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.

The American criminal system. These stories are about the not guilty as public defenders get on a daily basis in an unjust criminal system with the deck stacked against us.

All right. Welcome to another episode of Another Not Guilty. My name is Dallas Guttman and I'm a public defender in Cincinnati, Ohio.

My name is Rachel McKay. I'm also a public defender in Cincinnati, Ohio with Dallas. Dallas, how are you doing today?

I'm good. Did you hear I did something a little different with the intro there? I only did one all right.

I did notice that. And yeah, I was thinking like in before we started the episode of how I was going to switch it up, but I kind of panicked and I just said one all right.

So it was disorienting for me. Are you OK? Where are we? Are you OK? Are you safe?

Yeah, I need a second. And we have a great guest today. We're here with Ryan Sullivan out of Massachusetts.

Ryan, do you want to tell us a little bit about yourself? All right. All right.

Hey, there we go. Hey, there we go. We got the other two in.

I can relax.

Order is restored.

Yeah. Yeah. So I'm a criminal defense attorney here in Massachusetts. Unlike a lot of people on the pod, I am right now primarily a private criminal defense attorney.

Before that, I was I'm a reformed prosecutor. So I was a prosecutor for six years.

And I know. Well, now I know all the tricks and I use them against prosecutors now.

Everyone's redeemable.

Rachel's nicer than me.

It's better to go from that side to this side. I think that's more understandable to me.

You mean, like gaining a soul as opposed to losing a soul.

Yeah. Yeah. I don't understand the other way around.

And so for, you know, about 10 years, I was in Massachusetts. We have the public defenders, but we also have 80 percent of our court appointed work.

Our indigent defense work is done by court appointed lawyers.

And so I was one of those taking cases in the district and superior court.

Once I started taking murder cases, which I still do as a court appointed lawyer, I stopped taking the district and superior court cases.

OK. OK. So you just take appointed murder cases and then you do the rest private.

Correct.

And what city are you in?

We're in Andover, but it's it's the suburb of Lawrence, which is one of the larger northeastern mass cities.

It's one that has a very busy district court.

Cool. Yeah. If you've heard our recent podcasts, you'll know that we know nothing about eastern seaboard geography, so we can pretend we get lost over there.

It's OK. We're that way.

Yeah, that way. That's good.

You pointed left, listeners.

Which I think is actually incorrect.

Yeah. Yeah. Yeah. It's your guys is right. If you're ever watching this on YouTube.

Yeah. Right. We'll probably edit that out.

Just kidding.

OK. I'm actually really excited about this case that we're going to talk about today.

Yeah, this is awesome.

It sounds super it sounds super interesting and I'm excited to get into really your defense.

But first, I want to talk about the charges.

So what were the charges against your client?

So my client, I'll call him Andy. Andy was charged with three counts.

He was charged with felony possession of a firearm, misdemeanor, possession of a loaded firearm.

It's just like a sentencing enhancement for the carrying of a firearm charge and possession of a stolen firearm.

That same gun. So essentially charged with having a gun.

OK. OK.

So one gun, three charges.

It's two felonies, one misdemeanor.

Correct.

Can you talk about the enhancement?

So what are what's the vulnerability of of jail or prison time?

So the government in this case decided to keep his case in district court as opposed to superior court, which would open him up to state prison liability.

So in district court, if he's convicted, he's looking at a minimum 18 month sentence, maximum two and a half year sentence on the carrying charge.

Whatever sentence he gets, which has to be jail in that case or sentence to the House of Corrections here in Massachusetts, his punishment on the loaded portion has to be served afterwards, which can be a probationary period or up to two and a half years in jail.

And then with the receiving property over twelve hundred dollars, which was the third charge related to the gun, that's a maximum two and a half year House of Corrections sentence in Massachusetts.

Which can be served at the same time or separately.

A district court judge cannot sentence someone to prison.

They can only sentence them to the House of Corrections.

OK. And that's different than like a county jail.

It is a county jail.

OK. OK.

House of Corrections is a wild name.

I know. It sounds like like Game of Thrones, like not the house, the House of Corrections.

They really like bend over backwards to make such euphemisms out of incarcerating people.

Like in Hamilton County, our county jail is called the Justice Center.

Like the JC on.

And where we visit clients on this one level is called the Mezzanine.

Like it's a rooftop bar.

That is so offensive.

I know.

Like, please give me a break.

The Justice Center House of Corrections.

Andy's case was being prosecuted in the Fenton Judicial Center, which is the Lawrence Justice Center as well.

Yeah. Just like just call it what call it is.

Courthouse, jail.

Yeah.

So your client is looking at a minimum of one and a half years if convicted.

And then because that misdemeanor would have to serve another sentence some type of way, whether it's post-release control or incarcerated.

Precisely.

And then the loaded firearm is its own spec?

So, yes.

So the loaded portion, it's its own crime, but it's considered a sentencing enhancement because that's the part that has to go after the sentence he receives on the carrying a firearm.

Got it.

How do you meet your client?

We meet our client, my partner and I.

His family reaches out to us and we get in touch with him because he is not arrested on this charge.

He is under investigation and then ultimately sent a summons to appear in court.

So he reaches out to us during the investigation shortly after his interaction with police officers.

And that's kind of the real difference between private and public defense is that, I guess, our clients don't have the benefit of that window of getting some sort of representation in preparation to get charged.

At this point, your client has not been arrested.

Has he made any statements, do you know?

Has he talked to police at all?

Yes.

So, kind of hiding the lead here, my client was shot and during the investigation of that shooting, they find a gun in his mother's car that they say he was driving.

The police speak to him at the hospital.

He gives a statement at the hospital about the shooting, but they don't talk to him about the gun.

Later, he gives another statement at his sister's home about not only the shooting, but about the gun that they had subsequently found inside of his mother's car that he had been driving.

Where they say he was driving.

What are they saying happened?

So, what they're saying happened, and a lot of this is not in dispute, and it's borne out by some surveillance video, but they say that my client, Andy, is with his friend, and they're in a hookah outlet, like, buying, like, tips for a hookah.

I'm not cool enough to understand what that means, but that's what everyone was saying.

You're, like, just nodding along, like, yeah, tips for a hookah, I know, I know.

That's where I go.

And it became too late to ask.

You're, like, all right, we're about to go into trial, it's probably too late for me to find out what a hookah care is.

Yeah, precisely.

What were you buying that thing?

And so, he, as he's walking kind of towards the front, a man opens the door, and another man who's masked, I mean, this is COVID,

so everyone has masks on, but another man walks in and immediately starts firing at Andy, and as he is, you know, ducking for cover, the person is following him, and he keeps shooting, and he runs out.

This is kind of where there's some dispute about the evidence that comes important later for the purposes of the trial and some motion hearings.

One person says that the shooters get into a car and drive away immediately.

That person is an off-duty officer who's across the street saying, this is what I saw.

A person who is closer in the parking lot says that he sees the shooters go to Andy's car, or what the government says is Andy's car, then make a beeline and leave from there.

As a result of that statement, the police get a search warrant for Andy's car looking for evidence, and in the course of that, they find some marijuana in the passenger seat, which is decriminalized here in Massachusetts, so it was no big deal.

And what was a loaded revolver in the passenger, or in the passenger, or in the center console, that revolver, they ran a serial number, turned out that it had been stolen from a Lawrence police officer about a year before that.

Okay.

So, long story short, your client got shot and got charged.

Yeah.

Yeah.

I mean, in fairness, the government did also charge and ultimately convict someone for armed assault with intent to murder of Andy for that shooting.

The shooter was not a great shooter.

He left his wallet at the scene.

It was pretty easy to identify him.

Hate when that happens.

Yeah.

God damn.

So, yeah, so your client gets shot, and then in the course of the investigation, police find a gun in his car.

What makes this an unlawful possession of a gun?

Is it because they're saying it's stolen, or does he have some type of disability?

So, in Massachusetts, you need to have a license to carry in order to have a gun.

And Andy was not old enough to get a license to carry, and even if he was, he had never applied for a license.

So, it's unlawful, and it still has that, you know, very draconian jail sentence because he doesn't have a permit to have it.

And how old is he?

He, at the time, is 19.

Okay.

As far as the time he's facing, which of that time would be mandatory if he's convicted?

A year and a half.

A year and a half, period.

Okay.

So, that's the state's theory.

When you meet with your client, what does he say?

He basically says, like, yeah, you know, I have a gun for protection.

I sell sneakers, and I've gotten robbed.

I have friends of mine that have been robbed.

I had, I needed a gun in order to protect myself from this kind of dangerous city.

So, I purchased a gun, and, you know, it is what it is.

He had then, you know, the person that he was with had some ties to some gangs and things like that.

So, it's believed, and we believe, that he was just mistakenly targeted, that it was the other person that he was with that was supposed to be the target of the shooting.

Okay.

Because Andy, you know, didn't know these people, had no interaction, and is just, you know, a shoe salesman.

What's the, so for the receiving stolen property, it's, that's, the stolen part is because it was stolen from a police officer.

What's the mens rea?

What, you know, does Andy's knowledge have to be to be convicted of this receiving stolen property?

So, this becomes very important at the trial, but essentially, he has to be aware that it is stolen.

He doesn't have to, nor did they make any suggestion that he was involved in the theft, but he needs to be aware that it was stolen.

And the way that Massachusetts law kind of interprets that often is that there's something about the property.

So, you're driving a Mercedes that you're turning on with a screwdriver, you know, it makes sense that you know it's stolen.

Or, you're driving, you know, a Mercedes that had been stolen an hour ago, you know, it makes sense that you knew that it was, that it had been stolen.

Okay.

Okay, there's a little gray area, but it's like known or should have known type of analysis.

Right.

Okay.

When you meet with Andy, you said that the investigation is still going on.

And he may have made some statements.

After he's charged, do they lock him up?

They do not lock him up.

We reach out to the detectives, have a conversation with them, both about the shooting part of things, trying to see if we can leverage, you know, hey, if he's cooperative about this, can he get immunity about this whole gun issue and we'll help you.

Before he's even charged, you talk to the police about it.

Absolutely.

Do you do that a lot in your area of practice?

It depends on the type of case.

But, yes, a fair amount will have, you know, conversations to see, like in this case, you know, can we limit his exposure?

Another difference between, like, I just feel like in private defense, you just get a lot more space to work.

Yeah, there can be more time.

On the other hand, we're also hustling.

So I'm meeting with people who end up not being my clients.

I get telephone calls about, you know, potential crimes that never materialize that might, you know, waste a day of my time.

Right.

Well, you mean the crime doesn't materialize or the client?

It actually could be either.

You know, I kind of.

They're like, if I know someone who's about to, like, what's going to happen?

Yeah.

Hypothetically, if I was going to shoot someone.

He's like, okay, I won't do it.

I won't do it.

There's a spec.

So then you're kind of negotiating with police a little bit.

Did that turn into anything fruitful for you?

No.

So we were hopeful that, you know, if he agreed to, you know, because obviously he has a Fifth Amendment privilege not to testify because of, you know, the fact that they got evidence suggesting he had a gun.

You know, we were hopeful that they would grant him immunity.

They could bring him before the grand jury on the armed assault with intent to murder.

But frankly, they had such a strong case against that shooter that they didn't have a huge incentive.

And politically in Massachusetts, there's this huge push to make sure that people are tough on gun cases and gun violence.

Gun violence, I get.

They're like, let's make, like, super lenient gun laws and then be really harsh in prosecuting.

The binary of either you can, if you're technically legal, so probably white, you can do whatever you want with a gun.

If you're just outside of that, you're going to get absolutely slammed.

I also think, like, it's so easy to, especially in Ohio, to own a gun because our law is if you could get a license, you can conceal carry.

So it's not, you don't have to apply.

If you, if you're, if you qualify, then you can just do it.

And I think it makes the police more scared and they react differently when they're going into situations and they're way more likely to tase people, to, you know, approach people differently, especially our clients, typically people of color.

And so it just, yeah, the binary and, like, the juxtaposition of, of how it plays out in court is, like, really hard to watch.

Everyone has a gun.

Yeah, everyone has a gun.

I don't.

But, uh, I mean, not on me.

I'm just kidding.

I don't.

I probably shoot myself accidentally.

Yeah, I don't.

I just have these guns.

Yeah, exactly.

Yeah.

Okay, where, where even were we, though?

Because I was really going somewhere.

We won.

Thank you for coming.

So, client gets charged.

You said that he made some statements.

Do you know what the content of these statements are before you get discovery?

Yeah, so, so client truthfully tells us, but they're also documented in the initial police reports, basically, that he is asked about the gun and he admits to police, it's, it's my gun.

I need it for protection because I saw shoots, essentially what he had told us.

And did you have any issue keeping client out on bond?

No, so we were able to work with the prosecutor and, you know, that's, I guess, going back to what we said, you know, the helpful part is being able to say to the prosecutor, we've been cooperative.

Did you know, did you know, that he did, you know, did you know, did you know, did anything happen in court that was notable pre-discovery?

We knew right away that we were going to be filing motions to suppress the search that was done by a search warrant of the car and a motion to suppress the, his statements.

We had also thought about and ultimately did as a result of, you know, the Bruin decision, files and motions to dismiss on Second Amendment purposes as well.

What did you get in discovery?

Was there anything that was surprising to you?

Because it sounds like you already knew a lot of the story going into it.

So what did you get in discovery?

So, so we got a series of, um, a bunch of different reports, um, because, and more than you would see in a general just possession of a gun case.

I mean, typically a case like this, we see police report and certification from the lab that the item is a working firearm.

In this case, we got a lot more because it was a shooting investigation.

So we got the search warrant affidavit, um, the lab reports, um, showing that the gun was a gun, the, uh, DNA and fingerprint, uh, reports showing that they sought but were unable to obtain fingerprints from either the gun or the bullets.

Oh, and we got a, uh, a video of a video of a video of this surveillance video from inside the store that showed Andy getting shot.

And, um, you know, it was basically a police officer took their iPhone, recorded from the surveillance, uh, camera about, uh, 45 seconds or so, uh, from inside of the store, uh, up until the shooter's leave.

Okay.

The number of recordings of recordings of recordings of recordings we get, like, is there no technology to do?

Do they have, do they have body worn camera?

Uh, they do now.

They did not at the time.

So what you're really looking for here is, I guess what's relevant to the case, right?

Are his statements, the gun, and then what, where the shooter went, right?

Precisely.

Okay.

Can you see where the shooter went in that surveillance, the video of the video of the video of the surveillance?

Despite what, uh, was, and we'll get to it when we talk about the trial, but despite some arguments to the contrary, absolutely not.

Okay.

You see, you see Andy get shot, person run, end of story.

And did the discovery that you got inform your motions to suppress, you said motion to suppress, motion to dismiss based on Bruin, was there one other one?

Um, and a motion to, so suppress the, the search of the car and to suppress the, his statements that he made.

Statements.

Okay.

Um, so did that discovery inform those motions?

Uh, definitely the discovery with respect to the, the search warrant affidavit and what they knew.

In, in terms of the, the motion to suppress the search, we were focusing on the fact that there were two different stories.

You know, one from, you know, what the government would later say is a reliable police officer who says nobody went near the car.

You know, so our, our argument was there wasn't probable cause to believe that there would be anything in the car because the shooters didn't go near the car.

You don't just search the victim of a violent crimes property.

Right.

The only time we're saying an officer's testimony is credible, right?

Come on.

Everyone believes police, believe police officers.

They're more credible than other people.

Is there anything else you want to talk about from discovery or should we move on to the motions?

Uh, no, we, we can move on to the motions.

So, um, we, we filed the, the motion to, uh, suppress both the statements and, uh, the search warrant.

Um, and they are summarily denied.

Um, essentially the argument is like, look, although there are contrary, um, statements in the report about where someone went, probable cause isn't an exact science.

It relies on probabilities and therefore, you know, it satisfied, uh, the reliability and veracity prong to say that there was, uh, a reasonable belief that there was evidence inside of, uh, the car.

Um, with the statements, we kind of knew it was going to be a problem to begin with, but we also wanted to lock in the officers about how their testimony about the voluntariness of, uh, these statements.

I mean, there, there was some interesting issues that he, it's two unrecorded statements and then a third recorded statement, um, where he invokes his right to counsel immediately upon being advised of his Miranda rights.

Um, and so our argument was, you know, had he been informed of his rights in the earlier statements, even though, you know, he wasn't in custody sitting in the lounge chair at his, uh, sister's house and the police don't arrest him afterwards.

Um, but we were trying to make an argument that, you know, had he been aware of his rights, he would have availed himself of them.

Um, and therefore, uh, his statements weren't voluntary.

Yeah.

So you have, you do have a custody issue, but, um, interrogation, maybe not.

Is that why they denied it?

Absolutely.

Okay.

And the first statement, where was he physically?

So his first statement, he's in the hospital.

His second statement, he is in, uh, recovering from the six gunshot wounds that he received.

Um, the second statement, he's still recovering, uh, but he's in his sister's house.

And then they go to, uh, ask a third statement.

This is like right afterwards when they, they give him his Miranda warnings.

Um, he invokes the right to counsel.

Um, so the, you know, the recording is like 13 seconds long or something.

Um, that's when he calls us and, you know, we get involved.

Did he make any incriminating statements in the hospital?

He did not because they hadn't searched, uh, for, they hadn't searched his, his car yet.

So they didn't know about the gun.

I think hospitals are kind of an interesting issue.

I think they're kind of gray for judges.

You know what I mean?

If you're like in a hospital bed, are you in custody?

Are you, you know, would a reasonable person feel free to leave?

If you didn't make any incriminating statements, then.

The knowing intelligent voluntary, when someone's in that state, there's, there's some cases that's good for us on that.

Absolutely.

Did you bring that up at all?

So we brought it up in the context of the trial, but in the motion, it wasn't particularly relevant because he had, you know, he, he didn't make any incriminating statements in the hospital.

It was only at home.

And we tried to say like, he was still under painkillers, but.

Right.

Yeah.

The officer testified, probably truthfully, that he didn't appear to be under the influence of any of that.

He was lucid.

And then what about the Bruin motion?

So quickly, quickly, without, you know, and not in legal ease, can you tell us a little bit about what the words Bruin motion means?

The New York State Rifle Association versus Bruin was a 2022 Supreme Court decision that invalidated New Hampshire's licensing scheme of firearms because it was a May issue.

The police had discretion in order to prevent someone from having a gun.

And the Supreme Court said in a very lengthy opinion before they all of the awful, awful opinions after there afterwards, that you need to look at whether or not history at the time of both the Second Amendment and the incorporation of the 14th Amendment.

Whether history would have restricted firearms at that time.

And if so, the law is valid.

And if not, the law is invalid.

And they decided to nullify New Hampshire's law, which is incredibly similar to Massachusetts law.

And so Massachusetts lawyers flocked to this issue, arguing that, you know, forget Heller, forget McDonald.

Like, now we want to go forward and say, you know, the Massachusetts sentencing scheme is unconstitutional and every gun case should be dismissed.

And then they dismissed every gun case and everyone went free, right?

Yeah.

So ultimately, the Supreme Judicial Court took a more narrow view of that.

And so that motion was ultimately denied.

So then your argument was just that the law itself was invalid based on this Bruin decision.

Exactly.

Okay.

And that was denied.

It was denied very quickly.

A lot of writing for a Z.

I feel that.

That was my whole week.

Yeah.

Same, actually.

The judge this week said to me, he was like, I almost granted it because of how hard you worked.

It's the most backhanded.

So either way, you preserved a great record, at least at this point.

You fought the statements.

You fought the 2A issue.

And at this point, you kind of know what's going to be coming into trial.

And you've locked in some good testimony, or at least some predictable testimony.

Did you get anything during those motions that you're excited about, that you're worried about,

in terms of testimony?

What I was very excited about is how much the government highlighted the evidence of a person

going into Andy's car in the aftermath of the shooting for a potential defense that, you know,

the gun was planted there.

So, and that was, you know, making that such a big argument that that is so unreliable,

the judge cannot consider it in issuing a search warrant, was, you know, there was a strategic

part of that to have the government talk about just how credible that incredibly exculpatory

statement is for Andy's case.

Yeah, let's talk about kind of your theory of defense leading up to trial.

So, so this is interesting.

So this is one of the first cases that my law partner Murat and I decided to try together.

And we had differing opinions as to what the defense should be.

Murat's belief was because the statement that Andy had made of, I had the gun and I got it

for protection because of the, and he goes into detail about this robbery that he had seen

in Boston and as a result, he then arms himself to protect himself in the future, that given the

context that in fact he was shot and, you know, the police were nowhere to be seen, that he actually

did need a gun for protection.

And so, um, wanted to advance a necessity defense that, you know, we had this gun, um, for purposes

of protection and because he is unable to apply for a license, given his age, um, he should

be exempted.

And there's some pretty helpful law in Massachusetts.

It's not directly on point that talks about the great cases.

You know, if you wrestle a gun from your attacker and you're holding it and you don't have a

license, you know, you can't be prosecuted for that because you need it for purposes of your

protection from that attacker.

Um, so we, what we were trying to do is expand that theory to say, you know, it doesn't have

to be like the immediate problem of wrestling that gun away, but rather, you know, if, if

you need it to protect oneself.

Um, and so what we did is we gathered different from the discovery that was obtained, our investigation,

we gathered a bunch of data from, uh, Lawrence, the city where this happened, uh, about the

number of gun cases, the number of violent crimes, uh, the police response, the number of

detectives that are assigned in different cases and such in order to show that, uh, a citizen

can't rely on, um, the police for protection.

Uh, they needed a gun in this case if, if they were subjected to this.

Wow.

Good work.

Yeah.

Just even raising that.

That's great investigation.

So creative.

Yeah.

What form did that litigation take?

We stayed silent on it until the day of trial to say, um, I mean, we like, we have to provide

this notice.

Like, you know, so we just wrote necessity.

Um, we provided the discovery, you know, but didn't like, um, shout our, you know, from the

rooftops of this is where we're going.

Our plan was we wanted the jury instruction for the jury to have to consider it as opposed

to getting directed out.

So you said provide a notice.

So necessity is a affirmative defense and you have to give notice.

Yes.

And you mentioned investigation.

What other type of investigation did you do leading up to trial?

You know, we, we went down to the scene.

We, you know, looked and saw what we could find, you know, we're, you know, we were familiar

with the area generally.

Um, but, you know, wanted to see like, are there other surveillance videos?

Uh, are there other cameras?

Um, you know, and so forth.

And, and essentially, no, you know, it was just the, the hookah store had this incredibly

high def, uh, camera inside.

Um, and then you could do whatever you want in the parking lot and no one would be able

to see it.

Yeah.

All this data that you're collecting, how are you planning on getting that in?

Who are you planning on getting that in to evidence through?

So we wanted the data to be able to back up our questions, but we're hoping to get it

in through.

And ultimately we're able to get a lot of it in through the testimony of the investigating

detectives about you're familiar with Lawrence.

You know, that there is a violent crime, you know, we said, you know, probably maybe daily

or weekly.

And the detective was like, yeah, definitely daily.

Okay.

Um, you know, in order to, to, to show that.

So you didn't need some type of data expert or anything like that or Lawrence expert or I

don't know what they would want.

Whether we needed it.

Uh, I can't tell you.

We didn't have one.

Well, you want it.

If it works, it works.

Um, so that's, that was your theory going in.

Did you guys bat around any other, uh, theories of defense?

Yeah.

So, so that was Murat's theory.

I was not sold on it to be quite candid.

Okay.

Um, my theory was argue that the statement is not believable.

Um, that he's just covering for somebody else and that that gun was someone else's or it

was planted, but that the police didn't do a thorough investigation to find out if in

fact this was Andy's gun or if it was someone else's.

Okay.

Okay.

And which theory did you guys go with?

We started with the necessity defense, but we didn't lock ourselves into one of them

in opening.

And this is probably the worst foreshadowing ever.

That became very important during the course of the trial.

Okay.

Okay.

Okay.

Mysterious.

The broad opening.

No one knows what that means.

Keep everything on the table.

Um, yeah.

Okay.

So yeah, you want to say, listen, basically he's lying.

Our client's lying.

Yes.

Do you have like any evidence to like a, a, a, why the car is owned by his mother?

So who also doesn't have a license to carry.

So maybe it's hers.

He is with a friend of his who is the likely target of this shooting.

So it would be reasonable for that person to have a gun in order to protect themselves.

Um, it could have been like the, uh, witness said, uh, that the shooters went into the car

afterwards and dropped evidence.

And, you know, is Andy going to go and tell the police about that?

These guys just, you know, shot him in broad daylight, um, in the middle of a bunch of witnesses,

you know?

Um, so, you know, why is he going to try to get them in trouble, um, and try to point

the finger at anybody else for fear of retaliation in, in the future?

Nice.

Yeah.

That's good stuff.

Yeah.

You guys have a lot of avenues with that.

Yeah.

And there's no prints, no DNA from the gun.

Right.

Okay.

So it can technically be anyone's.

Absolutely.

That's great.

During, you know, all this pretrial work, was there ever a deal, like a plea deal that was

floated to you guys?

Or did you ask about, uh, some type of reduction?

Definitely asked.

Um, but as always, it's just, yeah, it's just the case.

It's the case in these gun cases, they just say, no, uh, and, you know, Andy, um, is, he's

such a nice, charismatic, easygoing guy, uh, always has great shoes and important, but

the government's idea of him is, you know, this guy's involved in this kind of, uh, underworld,

uh, which, you know, he wasn't, he was, he was not a gang member.

He was not alleged to be a gang member.

Um, but you know, he was guilty by association by being with a gang member who was shot by

rival gang members.

Uh, they weren't going to give him any deal.

Also, they have a good case.

He admitted to it.

He said, it's my gun.

I don't have a license, you know, whatever.

So they're like, this is locked tight.

And those are the best trials to win.

Honestly, when the state's like, why are we even trying this?

And you're like, you're like, you'll know when I know.

Yeah.

In your mind, you're like shitting your pants.

You're like, I don't know.

I'm scared.

Um, but then you went and you're like, I knew the whole time.

Yeah.

I was confident.

Yeah.

The whole time.

I had that on lock.

Yeah.

Yeah.

Like I never doubted it for a second.

The opening statement's like, I'll see you guys later.

Okay.

Anything else leading up to trial?

Any investigation?

Any like mishaps or anything crazy happened leading up to trial?

This is one of my, the type of case, you know, in addition to what you're talking about,

a case that, you know, you want to win because it looks like the odds are so difficult.

It's also nice where there's not a huge dispute about what happened.

It's about, you know, what the jury should take with that information.

And in large part, what didn't happen in the course of the investigation.

Yeah.

How is Andy feeling through all this?

He is cool as a cucumber every day of his life.

He knows that he's got people that are fighting for him, but he's just, the chips are going

to fall where they're going to fall.

Um, you know, because like we talked about the beginning, you know, he knew they didn't

have a license and you know, he got caught with the revolver.

Yeah.

Does he want to go to trial or is he kind of just trusting you and you're like, listen,

we can plea or go to trial.

It's going to be the same outcome no matter what we do.

So.

So, so because of that statement of like, look, you know, if you lose at trial, I can't guarantee

you what the result is going to be, but I can tell you, you know, of 20 years experience,

it's going to be the exact same.

You're going to get the minimum.

So we didn't really discuss the possibility of a plea at all, uh, other than to say it

was, it would be a hundred percent against our advice.

Yeah.

Yeah.

Right.

You can't win a guilty plea.

That's what I always tell people.

Okay.

So we're getting ready for trial and you're thinking about voir dire.

So what type of jury in Massachusetts, do you select the jury or is this one of the judge

things that we've been hearing about?

One of the judge things.

This is stressful.

It makes me uncomfortable and I don't like it.

Come on, Eastern Seaboard.

What's happening here?

Just pick a judge.

So, I mean, I, I listened to every episode of Angie and as I'm listening to them, I'm like,

what is this whole, I'm going to say my argument to the jury?

Like it's awesome.

It's you would love it.

Agree.

Yeah.

You would thrive.

And you, um, so judge led voir dire.

So I guess give us a little bit of a rundown of how it goes and your, you know, the, the

type of hand that you can have in it.

I mean, the one kind of benefit is we're meeting these people one-on-one up at the sidebar,

ask them questions.

Because we're planning on this necessity defense, we're looking for smart, educated, conscientious

jurors that are going to be really listening to what the judge's instructions are.

Um, and, and not just someone who's going to be responding, uh, based on, on emotion, good

or bad.

What about like, are you looking for second amendment people basically?

Like who believe, like truly believe in like protecting yourself with firearms?

So I would have said yes until now the second amendment people are Trump people.

Yeah.

And it's like, I know I, I got a person of color, you know, they're like second amendment

for a certain group of people only please.

And that's kind of like, that kind of goes back to the conversation we were having before

about this tension between looser gun laws and stricter penalties or looser gun laws and

stricter policing.

Yeah.

And it's hard, hard for you when it's a judge led voir dire to get into that.

But I think in general, we're not doing right by our clients on gun cases if we're not voir

deering, not just on second A, but on second A and race.

Cause that's the history of the second A in this country is that it's, it's for white

people.

And so when we have these lofty kind of conversations, a lot of people are kind of

generally on board enough, especially with self-defense, but when you break it down on racial

lines or for our clients, uh, people, if they're being honest, I think it would be just illuminating

about who should not be on that jury.

The difficulty with this, um, the voir dire being led by the judge is that there's a huge

amount of case law about what is and was not a valid question because, you know, if something's

not asked, the defense gets to object and it could be, uh, you know, an issue on an appeal.

And it's, it's not great.

You know, the, the restrictions on what the judge can do are very often, uh, upheld.

Man, we're lucky McKay.

We could kind of say whatever we want.

You just go until you draw the foul.

So are you worried about race?

Like what's the racial makeup of your County?

So the racial makeup of, uh, this County is predominantly white.

This city is, uh, very Brown and black and, and Andy is black.

We generally, in this case did have a predominantly white jury pool and, uh, ultimately a predominantly

white jury.

My side is that we need to pay jurors a lot of money because whatever job you do, it is

so expensive to sit there for a week, two weeks, three weeks.

You just, yeah, you can't expect a diverse pool when it's, you can't work.

Yeah, absolutely.

Yeah.

Are you worried about race in this case?

Like, do you, do you, does that come into play for you?

So a bit in terms of just kind of the judgments that they're going to make, you know, here's

this young black kid, although very light-skinned Brown man, he's in a city that has a huge

Hispanic population that is known for drugs and gangs and guns.

And he's being charged with having a gun, you know, are they just going to assume he looks

the part?

Therefore he, he must have done it.

Mm-hmm.

Right.

Mm-hmm.

Right.

And you can't talk about that at all in voir dire.

No.

Yeah.

That's easy.

I don't know why I was worried because he admitted to it.

So that was probably a bigger problem.

Yeah, I guess.

Yeah.

Yeah.

That's, but that's really hard.

If you can't say that stuff in voir dire, like, you know, how can you pick a jury?

How can you get a feel for the people?

Yeah.

Like how we talk about between state lines, stuff that just, it is this way here.

It is that way here.

And to us, that would be a scathing due process violation.

Like if we were about to voir dire on race and with these facts and the judge said, no,

you can't talk about race.

We would then pull over, proffer to the court reporter everything we were about to ask, why

it was important, and preserve the record for a possibly reversible error for not being

allowed to voir dire on race.

Yeah, agreed.

And I, I wish it were something that, you know, I think that's part of the problem too.

Like people get used to the system that they're in and kind of the normal.

Uh, you guys were asking, uh, you were talking to one of your other guests about like, what

is it?

The doctrine of chance in Texas.

Yeah.

Where they just like spin a wheel and see what happens.

You can't just put doctrine in front of 404B and make it okay.

Yeah.

The doctrine of chances.

Good callback.

So did you like your jury?

We did like our jury.

Yeah, absolutely.

Okay.

So then we're going into opening.

Yes.

All right.

So the DA opens first and their statement is just like, he had a gun.

If you're going to see that they found the gun in his car and he admitted to it, like,

why are we here?

No frills, nothing, you know, objectionable.

It's although, like you mentioned, a strong case, you know, nothing sexy about it.

And our opening was very, you know, we still had been internally talking about this necessity

versus this, you know, can you trust his statement?

Um, so we didn't want to lock us into one way or another.

One thing the DA, uh, left out was that he was shot and it had nothing to do with him having

a gun, you should be looking at what the police didn't do as much or more as to what the actual

police did in this case.

Nice.

I want, can I talk for a second about this like double theory that you guys, okay.

So how are you, when you're prepping your case with two theories and you don't know what

you're going to do, how are you preparing like your crosses and your openings, your closings,

are you kind of like prepping with both in mind?

And so you have a cross that gets to both of the theories.

So yes, because all we need to do is elicit that evidence from the same witnesses of this

is a violent place.

And so fortunately in this case, it wasn't a, I wasn't the shooter, but if I was, I didn't

intend to kill him.

Yeah, they weren't, they weren't in tension.

They weren't like in tension with each other.

Okay.

Yeah.

So yeah.

Talking about the evidence that's coming in.

So your opening was just kind of like, you need to see what they didn't.

They didn't do enough and here we go.

And the state from jump has really heightened their burden because they have a clean case and

they left out the most important fact of the entire situation, which is this was a shooting

of client.

And so as a jury, you're just like, are you, are you serious?

Their credibility is like shot from the, yeah, completely unnecessarily because they have

a confession.

Yeah.

So they didn't think that the video of the shooting was going to be admitted into evidence

and throughout the trial fought really hard in order to get it out.

Like, and I understand their position of like, it engenders sympathy, but ultimately, you know,

it shows it's exculpatory, right?

Like, Andy doesn't have a gun on him when he's being shot at the time that he's alleged to

have possessed or had under his direct control, a gun.

And to just leave out this piece of evidence because, you know, it can garner sympathy.

You know, we didn't see, and ultimately, you know, it didn't become an issue why it wouldn't

get admitted into evidence.

Did they try to keep it out via Emotion and Lemonade or did they just object as it kind

of came up?

They did not file Emotion and Lemonade that I recall, but they, they did try to preclude

it from coming in when they saw, like, we had our video equipment and the disc and everything

all set to present it to the jury.

So the kind of like during the housekeeping before the voir dire, they were like, Hey,

what's that video?

Yeah.

You're like, I don't like all that equipment on that defense table over there.

I see a lot of CDs.

Wow.

Okay.

Um, okay.

So let's talk about the state's first witness.

Who did they call first?

The detective that first went and spoke with Andy in the hospital and was present for the,

um, the execution of the search warrant.

Uh, but he was primarily the detective assigned to the shooting investigation.

What did he testify to?

What Andy said at the hospital and what the police did.

So, you know, they secured the, they spoke to witnesses.

Uh, after getting the search warrant, uh, after getting the search warrant, they, uh, searched

the car, um, found the gun.

And in response to that, that's when they went and had the subsequent conversations with Andy,

asking him about, you know, the nature of the gun, uh, and, and took his statement.

So, uh, they got all that in what the state also did was because we were able to kind of,

uh, forecast that the video was coming into evidence.

Um, they got in the fact that he reviewed, uh, all the video and was able to see the shooters

leave the area and did not see on any video.

The shooters go to the, uh, Andy's car before leaving the area.

Oh, he testifies to that.

That's good for you, right?

Nope.

So it's, it's not good for me because it suggests that it's gotta be Andy's gun because the shooters

didn't go there.

Wait, isn't this the officer who wrote the search warrant that said they did?

Uh, no, so he's, he's one of the two officers is technically the sergeant who was their third

witness who authored the search warrant, but definitely.

Okay.

So this isn't, he's not like contradicting himself.

Okay.

Okay.

So he's not contradicting himself, but I get up on cross-examination and I'm like, hold on

a second.

You just gave a bunch of different answers about what you saw in the video.

Like this, you know, 45 second clip.

This is the only video you have, right?

Yes.

Like, have you looked at any other video?

No.

Does Lawrence police have any other video?

Not that I'm aware of.

Okay.

You agree with me that you can't see that on the video.

He's like, yes, I agree with you.

Like you weren't at the scene, right?

No, I wasn't at the scene.

So like all those statements that you made that they left, that they didn't go to the car,

that they made no other stops, that they got inside of the car.

You'd agree with me.

You're just assuming that the answer to those questions is yes.

He's like, yes, I am assuming that they're yes.

I'm like, but remember when you testified under oath a few minutes ago that this was true?

Like, I just want to make sure it's clear.

Like you assumed, you know, that was obviously the big part of cross-examination is just tearing

his credibility apart.

I then started asking him some like additional questions that would hopefully support my theory.

Like you weren't able to determine whether or not that gun had been, you know, touched by Andy.

He's like, well, I don't want to assume.

I'm like, I just want to make sure we're clear, officer.

You don't want to assume.

And this is, I asked us.

I was like, you don't want to assume when I'm asking questions, but you'll assume when she's asking questions.

Let's go.

Did you, with him, get in anything about the statement?

Yeah.

So, so with the statements with him, we got in, or, you know, the questions that I was asking

him were basically like, you know, you went and talked to him in a calm, you know, cool

manner.

You were talking to him as a victim.

You told him words such to the effect of like, you got nothing to worry about.

This is a safe space.

Like, you're not in trouble.

I'm just asking you about this shooting investigation.

And he agreed to all this that, you know, Andy's mindset would be, I am not in trouble.

I'm just being asked questions as a victim of crime.

And it's like, and then you started asking questions about the crime that he in fact did commit.

And you never clarified, like, now I'm going to ask some inculpatory statements.

So when Andy was answering questions, he would have felt comfortable the entire time being

able to have a belief, erroneous as it was, that whatever he said wouldn't be used against

him in a criminal proceeding.

So you're kind of trying to set the groundwork to argue some sort of coercion?

Not coercion, but that Andy's statement shouldn't be believed because it's just as possible he's

covering for someone else, because he's been told, you're not in trouble.

Let me ask you about this criminal activity.

And so he mistakenly believes, if I cop to this, I got nothing to worry about.

Yeah, you're backdooring the voluntariness argument, right?

Yes.

How did you know it was like a calm, you know, approached him calmly, said you're not in trouble?

Like, did they transcribe everything that happened?

Or was that like, based on what your client told you?

Or was that based on their testimony?

Because that's kind of scary, right?

And cross, you don't want to ask questions you don't know the answer to.

So I agree with you, generally speaking, that you don't want a factual question that you

don't know the answer to.

But so that was an, it was an educated assumption that I made up on that based on what, like the

way that they wrote the report and the way that the client talked about it.

But like, what's the officer going to, like, what's the bad fact?

You, you came to him in a calm manner.

No, I didn't.

I was crazy.

Yeah, you're right.

It was not like an off the cuff question.

But it was definitely one of like, how can this answer go poorly?

If I get the wrong answer.

And I just frankly couldn't see a way that it would have went poorly.

You're laying some foundation that you know he's going to roll with before you get to the

brass tacks.

Yeah.

And so I'm actually, this kind of goes back to something you said earlier, Dallas, about

like the believability of police officers.

I'd like to structure my defense, if possible, with like, believe everything that they said, unless

I'm able to show that they're lying in the, in the moment.

And, and if I'm able to do that, then, you know, I don't get into these contentious battles

with officers often, unless I can prove that they're lying.

And then I'm like, let's go, you know, let's, let's fight.

Yeah.

So the second guy is kind of like just bolstering the first guy on the statements.

Yes.

Um, and so then the, the third guy is the sergeant who actually wrote the search warrant.

Um, he's not kind of like, um, changing the, the landscape too much, except he is directly

contradicting some things that the first officer said happened.

Uh, the first officer said incorrectly that they did a gunshot residue tests on the car.

And so I asked the officer like, well, you were present when they did the gunshot residue

test, right?

He's like, I don't know what you're talking about.

We didn't do that.

It's like, right.

Anyone who said that they did, they would be wrong.

Right.

It's like, yeah, absolutely.

I was, I was the lead investigator.

Like that never happened.

That's such a good CEO.

Yeah.

Well handled.

Not just like, this didn't happen.

You're like, oh, you were present when the other officer did all this lab testing.

Right.

He's like, that's great.

Yeah.

Let the, let the jury know like, oh my God.

And the officer has no idea what I'm talking about.

Right.

He's just testifying.

He's like, what is this attorney talking about?

This is, this guy's an idiot.

He's obviously not prepared because he thinks there was gunshot residue testing.

So I went into the whole issue with the video and what it did and didn't show again, thinking

it was just going to be like, I'm shoring up the fact that like this other officer just, you

know, exaggerated this.

And I mean, that's going to, I'm thinking if we do go with the, um, you know, my client

statement shouldn't be believed theory, like this is going to, this is going to bolster

that.

Um, and the DA on direct examination or, uh, redirect gets into like, you went down, you

looked at the area, you canvassed the scene and you were able to show that the video did

not capture that.

And this where it comes, you know, like having that, uh, understanding of the area and having

done the investigation.

So I get up on, on, uh, recross and I'm like, there was no video though.

Right.

It's like, yeah.

It's like, so her statement, like that you were able to definitively prove that it didn't

happen because there's no video capturing it.

I just want to make sure that we're clear.

That's because there's no video capturing anything.

It's not like we saw him leave and he didn't go there.

It's, we don't know what he did or didn't do.

And the DA was trying to argue to the jury that he saw a video that showed the shooters

didn't go to the car.

And that just wasn't true.

Oh my God.

At all.

He's digging a grave.

He has a confession.

Let's, let's remember.

But the officer was agreeing with that?

Yes.

That's because her statements, her questions were confusing and ambiguously ambiguous in

order to try and deceive.

I think she just didn't understand what was happening because of the imprecise questioning

and answers and probably like trial prep of the first officer.

I think she thought there was this video out there in the shooting investigation that showed

that this never occurred.

That she didn't see or disclose?

Yeah.

I mean, that's a whole nother story.

I mean, what?

For real, Dallas.

They were trying to make it look like they were able to do a thorough investigation and

take out this red herring defense that maybe the shooters dropped the gun in the car.

There just wasn't evidence.

The evidence that she was trying to suggest was there just didn't exist.

That's interesting.

So on your motion to suppress, you are arguing that the shooter didn't go anywhere near the

car.

And then in the trial, you're arguing that we don't know if the shooter went near the

car.

I love being a defense attorney for that reason.

You're just like, listen, whatever gets me home.

I don't care.

Yeah.

It would also help her is that the calibers were different.

He had a .45 revolver and was shot by a 9mm semi-automatic.

So the fact that there were shell cases at the scene showed that it was an automatic.

It was a different caliber.

Like, there was no way that the gun that was found was the gun that he was shot with.

Yeah.

Okay.

Who's the next witness then?

The next kind of meat and potatoes witness is the, I shouldn't laugh, is the police officer

that had his gun stolen.

Oh, that's like a big faux pas, right?

In the police world to have your gun stolen.

It's gotta be.

It's not looked upon kindly.

So he basically.

He's like the nerd of the police force now because you guys have gun stolen.

How does that go down?

Yeah.

Not paying attention.

It just gets out of your holster or what?

So he's a firearm safety course instructor.

Oh, even worse.

So he brings these guns to the, you know, to a range or to a club in order to have people

do test fires and to, you know, go through the course.

He like lost track of his bag or one of the bags.

And I think it was two guns were missing when he like pulled it out of his safe for his

next class and was like, where's, where's the other two, two guns.

So he was a firearms instructor now probably on desk duty.

So the interesting thing is, so he was doing that privately.

Like it just so happened.

He was a police officer that happened to get his guns stolen.

When, when he was there, it wasn't taken in the course of his duty.

Like he was teaching people like Andy, when he turns 21, you know, can take the firearm

safety course.

That's like, okay.

That's, that's actually not as bad as like in the line of duty.

Someone just takes it off your holster.

Yeah.

You're just like not paying attention.

Yeah.

That's bad.

Okay.

So it's like registered to him pretty much as a private citizen.

Correct.

Got it.

Oh, okay.

Okay, cool.

Got it.

We'll stop making fun of him then.

Yeah.

That's fine.

We'll back off.

We'll lay off.

It was, he was so ineffectual and also made it clear, like there was nothing distinctive

that wasn't locked.

Like there was, there was nothing that would show that this revolver was stolen other than

the fact that it belongs to him and it found its way into evidence in, you know, the Lawrence

district court.

So, so the state on, on this RSP needs to make essentially knowing or should have known and

really all they have is that it's not registered to client.

Exactly.

This is their only witness on the receiving stolen portion part of it.

And they, the state gets directed out and the judge enters the finding of not guilty before

we get to, um, you know, closing arguments on this particular charge because there, there just

was no evidence.

Okay.

Good.

Yeah.

This, that sounded real 29 or whatever.

Yeah.

Motion for acquittal.

Yeah.

Yeah.

So who's next?

That's it for relevant witnesses.

And right now, what theory of defense is emerging as stronger?

We break at this point when we do our, we call it a motion for required finding, but the

motion for acquittal.

Um, and we're also asking for jury instructions.

We're asking the judge to instruct on necessity.

And the judge says, absolutely not.

Like you don't have it.

You can argue it.

I'm not prohibiting you from advancing this affirmative defense, but I am not instructing

on it.

I don't think you have it.

I don't think it's a legitimate legal basis.

So this was a two day trial.

So on the second day, we're having these conversations overnight.

Um, oh my God, I completely forgot overnight in the middle of the trial.

So Andy leaves the courthouse and goes to the sneaker store that he works at because now

he's not just selling them out of his, um, you know, car.

He's, he's working at a store.

He gets robbed at gunpoint.

What?

No.

He, yes.

He needed a gun.

It was necessary for him to have a gun at that moment.

We come in the next morning and we're like, did you talk to anybody on the store on Middlesex

street?

Like, you know, and, and we're trying to get the judge, like, we need to get this into

evidence.

Like that one of the officers who hasn't testified, like he, he knows about this.

He responded.

Yeah.

Um, the judge did not allow that to happen.

It was like exactly what we were saying as to why we needed the necessity happened in

the middle of the trial.

Wow.

It ended up being nothing, but.

Did the judge think it was not relevant?

So the judge didn't believe that we had a legal basis to go forward on necessity, period.

The judge wasn't convinced that you can have a necessity of defense to what ultimately

is a licensing violation.

Um, you know, we think about gun crime, but you know, the crime is he didn't have a license

for this item that he possessed.

Um, and that even if so, that there was insistence to show that he didn't have another alternative.

Yeah.

Okay.

There's like, I think that, I think there's also an immediacy issue.

Ryan.

Yeah.

I guess not.

Okay.

Okay.

Okay.

Um, but so we were talking about, yeah, the, the necessity defense, the instruction, all

that, and why the judge isn't giving it to you.

And Ryan, you had mentioned that this argument is for the case law that exists for you guys

is kind of a stretch because the case law that you have sounds like it's when you take someone's

gun, if you don't have a license, but it's like a live self-defense interaction.

Absolutely.

There's no necessity exception to getting a license.

Okay.

Bummer.

And so you didn't, hadn't litigated that pre-trial.

You were just going to raise it in the moment.

Once you had tried to proffer essentially the elements and the judge is saying you're not

getting the instruction.

He did say though, he said, you can argue it, but I'm not giving you an instruction.

Did he mean like nullification wise or what did he mean by that?

There's some good law, uh, for defense lawyers here.

Um, a lot of it centers around omissions in police investigations, which we call a Bowdoin

defense.

Um, and it basically says like a judge doesn't always have to, if a judge doesn't believe

that there's sufficient evidence, um, a judge doesn't always have to instruct the jury

on a particular defense, but except in rare circumstances, it, it's improper for a judge

to prevent an otherwise available defense from being argued to the jury.

So for instance, I think we actually got a Bowdoin instruction, which is really rare in Massachusetts

courts, which is basically the police.

You heard evidence that the police should have done certain things that weren't done.

The fact that these tests weren't done can in and of itself cause you to have reasonable

doubt as to whether the government has sustained its burden.

And that's permissible to argue whether a judge gives the instruction or not, but judges don't

have to give an instruction.

So now you're, you're thinking you're going to do the, oh, you're going to switch over to

the, um, you know, he's lying defense basically.

So in your crosses of the witnesses, you did get out like he was with someone else.

It wasn't his car.

His, did you get out that his mom doesn't have a license?

Like, how do you get that out?

Did they know that?

At the very least, the jury knew that their, the police hadn't even checked whether she

had a license.

And I, you know, I did something like, you know, when you spoke to my client, he was,

you know, present at his sister's house and his mother's there.

That's his mother right there.

Like you didn't ask her any questions.

You know, you didn't, you know, you didn't ask her consent to look at her car.

You knew it was her car.

She didn't refuse consent, but you didn't even bother asking her.

You just went and got a search for it based upon the information that the shooters

went towards the car.

I like that too.

Like mom's sitting right there.

And so you're going to say it's yours because you don't like you, you don't want to, you

know, rat her out.

Right.

That's good.

Yeah.

It's a beautiful defense.

It is.

Yeah.

It's very good.

So you win your acquittal motion on.

The RSP.

The RSP because there's not enough and it's denied on the other two.

Yes.

Correct.

So now we're into closings.

Who closes first?

In Massachusetts, there's no this, you know, rebuttal.

It's defense closes first.

DA gets last word.

Let's talk about your close.

I get up and I like lay the foundation of like, hey, look at all the things they didn't do.

They didn't do this.

They didn't do this.

You know, they didn't do that.

Look at the inconsistencies.

You know, you got officers saying like they're looking at something when they hadn't.

And, you know, the prosecutor is trying to suggest to you, jury, that, you know, there's evidence

out there that it inculpates him and it's just, it doesn't exist.

And they just agree to it.

Like, you can't believe what anybody said in this case.

Mm hmm.

Including my client.

Yeah, yeah, yeah.

He's the biggest liar of them all.

Everyone's lying.

So, so then I, I then start, uh, before I get into the statement, I start talking about

like friend is there friends in the driver, in the passenger seat.

You heard, there's a bunch of marijuana there.

Like, so they didn't ask friend is he, you know, was it his marijuana?

And also by the way, his gun that was in that same car.

Um, they didn't talk to mom.

They never talked to mom.

Uh, they didn't ask the shooters, whether it was gone.

They didn't bring the witness in who said that he saw someone go into the Honda.

Uh, you didn't hear from them.

And you also heard that the detectives never even followed up with him.

They, they didn't ask and they didn't talk to anybody.

They didn't find any of the other people who potentially would have had access to or owned

this gun because they went to Andy's sister's house.

He said, it's mine case closed.

Like that's not enough.

You're going to hear from the judge that you can use that in and of itself.

Um, so, so that kind of set the stage.

And then I started talking about, but in order to convict Andy of this crime, it's not enough

that he said it was his.

You have to believe that when he said it was his, it was true.

Is it a good idea to say something that's not true?

No.

Just like the officers didn't say things that were true when they were testifying.

But like, you have to believe that it's true.

I said, let me give you an example.

And Dallas McKay, I swear to God, I said this just about verbatim.

I go, let me give you an example.

I'm driving down the street with my mother.

We get pulled over by the police.

They start asking her questions about where she got the lingerie in her back.

And they say it's stolen lingerie.

You know what I'm going to do?

My mom's not going to jail on my watch.

I'm going to say it's my lingerie.

Is that a good idea to lie to the police?

No.

Just because I say it's my lingerie, does it mean that it's my lingerie?

No.

Would I look good in women's lingerie?

Probably.

And the fuck?

That's it.

That's how you get them.

That's how you get them.

Jerry's like, you just said what everyone was thinking.

Yeah.

Now everyone's imagining you in lingerie and it's a non-guilty.

Like, that's it.

Yeah.

In hindsight, that image should have resulted in a guilty.

And then, so, I kind of, you know, sum up everything and pretty quickly after that.

Because I'm like, I can see, like, they're smiling.

I got them.

They, the analogy hit.

And you're also telling them, it's the mom's gun.

Right.

It's my mom's lingerie.

But as you're saying that, like, you're telling them, it's his mom's gun.

Yeah.

That's, that's super powerful.

Really smart.

So then the DA gets up, does their clothes.

And it's just, it's more of the same of opening, like, he admitted to it.

So, like, obviously it's got to be his.

But, you know, they had been focusing on this necessity defense from the beginning of the trial.

And they did not see or expect that we were going to shift gears.

And they did nothing to adapt that, that argument.

Mm-hmm.

I also think that's, like, a personality thing, too.

I think some people just are not quick enough.

And I think that some lawyers, or a lot of lawyers are, they're type A, they're book people.

They just don't have the charisma and the personality to, like, adapt like that.

And so I think as a trial attorney, it's a, it's a big skill.

And I don't know that it can be taught, really.

And I do think it's a difference in the professions, too.

Because we talk about sometimes how being a prosecutor, being a defense attorney,

they're not equal and opposite professions or goals or even ethical responsibilities.

We do have the opportunity to be much more just creative.

And, yeah, when it's so live and hits home and completely shifts the trajectory of the trial,

it's, I know a couple, but I don't know a lot of prosecutors who can respond to it.

Mm-hmm.

Yeah.

Mm-hmm.

Except for you as a prosecutor, you probably could have.

Yeah.

Glad you're on, glad you're on the good side now.

So then the judge gives his instructions.

Then the jury has it.

How's Client doing?

Client is feeling nervous, but still, you know, like, it is what it is.

Like, now he's starting to ask questions like, so do I go in right away?

Do I have to come back?

Like, you know, what's going to happen?

The reality is, like, sinking in.

How long did they have it?

Did they have any questions?

Uh, no questions.

Uh, they had it for about 15 minutes.

What?

Whoa.

I mean, how did they even pick a foreman in that time?

They didn't.

They were just like, everyone not guilty?

All right, let's go back out there.

So when the court officer said you have a verdict, what are you feeling in that moment?

Uh, so for me, I'm like, got it.

Like, this is, there's, there's no way, there's no way they could convict him after those arguments

and that facts, uh, without it, that, that quickly.

If it is, it just, we were doomed before we started.

It is, it is hard to read the tea leaves with, like, time, you know, and you're like, oh,

like, it's only been this amount of time or they didn't look at you or whatever it is.

But I think with, like, 15 minutes, that is, like, really, really short.

It's hard, too, though.

And a confession case with 15 minutes is any part of you, like, it's because it's so straightforward.

I have to say, like, at that point, I'm still on this, like, adrenaline high.

Now, granted, once the court, like, once the jurors start filing in, that's when terror just

Yeah.

Yeah, it gets real.

Yeah, and I'm like.

Yeah, you're like, wait, wait, am I as amazing?

Was that joke good?

Were they laughing?

Was it a groan?

Yeah.

What's happening?

Did I misread the room?

Why did I do that?

Yeah, like, lingerie, no, stupid, stupid.

What is your client feeling when you get the verdict?

You know, he's, like, very nervous, but stoic as he's been throughout the entire case.

And so the jury's filing in, the terror's come seeping through, and then what happens?

Take us through that moment.

They put the verdict slip in an unsealed envelope that gets given to the judge.

The judge reads it.

They're, like, that, I think, has to be the hardest job of any judge is to read a verdict

and not show what it is on your face ahead of time.

It gets brought back to the foreperson.

The clerk, you know, asks, you know, you, the members of the jury, having duly deliberated,

as to count one, charging, carrying a firearm without a license, is the defendant guilty or

not guilty?

And they say not guilty.

And then it's just, like, a wash of emotion.

So we've already won count three.

Count two, even if they found him guilty, he can't be guilty as a matter of law.

So that's just going to go away.

So you won?

Yes.

At that moment, you win.

Okay.

But were you not guilty on count two?

Yeah, they found him not guilty on two as well.

Okay.

Yeah.

Nice.

Okay.

So it's a full win.

And how does client react?

The client is just, like, his arms go down.

He sighs with relief.

Murat is right next to him on the other side.

Puts him into a big bear hug.

And, you know, we're just ecstatic.

When we get verdicts, not guilty verdicts, it's just that.

It's relief.

It's not even joy or celebration.

It's usually just relief.

Like a lion's not chasing you anymore.

Oh, absolutely.

That's awesome.

Awesome.

And this is such a good example of how good lawyering and a good theory can win a case.

Yeah, yeah, and it's a really well-tried case because the undertone of all of this is the nullification of that.

Why are we trying someone who just got shot?

Like, the only reason the police were ever there is investigating the shooting of your client.

Like, is this really how we're spending our state resources?

And we can't say that in a closing necessarily, but the jury is smart enough to pick up on that thread the whole time.

And so you give them this out, and in good lawyering, you gave them every reason to take it.

Just well done.

It was a really amazing feeling because, you know, as much as, like I said, I was oozing confidence and felt that, like, you know, like, you had some cake.

Like, he admitted to it, you know, like, the DA was like, how the hell did I lose this cake?

Yeah.

Yeah.

The DA's like, I should have worn lingerie.

So then you get the verdict.

The client is so relieved.

You're so relieved.

What are the moments like after, you know, kind of the aftermath of it?

There's hugging.

There's, we're just talking with his mother who is just, like, sobbing with relief.

It was such a great experience to, you know, like, this kid, you know, because that's what he is.

Like, yeah, he was 20 by the time the trial came around, but he's a kid.

He's not going to go to county jail.

He's not going to have a felony conviction that's going to prevent him from being able to, you know, get different housing or, you know, buy the gun license that he should get.

Our job is full of ups and downs, but being able to say, like, okay, whether they did it or not, this person's life is not going to be negatively affected anymore is, it's fantastic.

Yeah.

Yeah.

Yeah.

And it doesn't matter whether they did it or not, right?

That's not what we, that's not what we're here to do.

We're here to just make the state prove it.

It's government accountability.

And I think with that, you know, approach, you become a better trial attorney because you will try more cases because I think a less, a worse attorney or a lesser attorney would have just said, listen, buddy, like you're cooked.

You know, we got nothing, you confessed and you didn't do that.

And so, um, I think that's great.

Your client got his day and he was acquitted.

Amazing.

Yeah.

It's a great win.

And now leads us to, yes, the, the portion of our program where we ask, um, our guests, the ultimate question, why did you want to become a defense attorney?

So as, um, as I mentioned before, uh, I was a prosecutor, so I tried a robbery case as a prosecutor and, uh, during that case, um, in this old courthouse that has, uh, since shut down, the prosecutor is right in front of the judge's bench and then the defense table's right behind.

So I could hear all the conversations with his attorney and the client throughout the trial.

And he's really funny and just seemed like a very charismatic, didn't seem like a bad guy.

And so as we're waiting for, uh, the verdict, I was talking to this attorney and I said, you know, my least favorite part of a trial is sentencing.

And they're like, why?

I was like, well, cause once you get through a trial, like, you know, so much about the other person.

Like, who am I to say, like, you should go to jail for this amount of time.

Like, I'm, I'm just a, you know, regular white guy.

Like, I don't, I don't have any, any say here.

Um, and at the time I didn't realize that that was not a common, uh, belief held amongst my peers.

And that, um, her brother reached out to me afterwards and said, you know, we had this, uh, availability to, uh, essentially become an independent contractor for the state by taking these cases.

If, if you were interested in this.

And I tried it and I absolutely fell in love, um, helping people on their worst day, being a voice for people who have their voices silenced repeatedly, um, is just, I, I have so much fun at what I do.

And it's so, uh, rewarding.

I, I can't imagine any other job where you get people giving you tearful hugs, thanking you for, for what you did as much as we do in our work.

Yeah.

Yeah.

It's, it's really rewarding.

I agree.

Yeah.

I agree.

Yeah.

Yeah.

Well, welcome to the defense bar.

Yeah.

We're glad you came through.

Yeah.

We're glad you, glad you made it.

Thanks for tuning in to this week's episode of another not guilty shout out to Daniel Mark, original A and 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.