Oops I Did It Again – When a Motion Breaks the Case (and the Prosecutor)

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So, yeah, I had to bring up the nudie pictures. I mean, the prosecution was going to use that and say, "Hey, look, he saw her nudie pictures and that's why he punched her." I tell him, you know, I started making a record because every time there's any violation of in limine, I'm just going to ask for a mistrial always because I wouldn't be doing my duty as a lawyer, I think, if I didn't. So, that's the end of the second day, right?

And something happened that I've never seen in any jury trial I've ever had. The judge is like, "Okay, we're going to need the jury to be back here tomorrow." And the jury collectively groaned. Okay? And like a really, really loud groan.

I'm David Moore, here, along with my fellow public defenders, presenting to you the untold stories of the criminal justice system.

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

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

In an unjust criminal system.

With a deck stacked against us.

Another not-guilty.

All right. Welcome back, everybody, for another not-guilty.

Great, great podcast today. I promise you, everybody.

First, let's give it up for our fellow public defender, Evan, for letting us, for hosting the podcast at his apartment studio.

Not that it's a studio, but it's... Anyways, thanks, Evan. Appreciate it.

He doesn't want to co-host. He doesn't want to be on the mic.

But you guys know him from episode 17 from the first season, Pop Goes the Weasel.

So, check him out. That's who he is. He's a great guy. Great lawyer.

Also, a great round of great co-hosts with me today. My buddy Omid's to my right.

How you doing, Omid?

Hello, everyone. I'm doing great. Doing great. Very happy to be here.

Very excited about this next not-guilty.

Yeah, I know. Excited to have you along, and I'm glad to have you here today.

And also co-hosting for the first time is Molly.

Molly, a fellow public defender. How you doing today?

Good. Thanks, David.

Nice.

This is where you say long-time listener.

First time long-time.

First time hook. Long-time fan.

Really always wanted to be here.

To say something like that.

This is the dream.

It's the best day of her life, I think.

This could be it.

Living the dream.

It's all downhill from here.

Yeah.

And, guys, our guest today is a dope-ass lawyer in our office.

He's a little bit on the new side to our office, but he's been a public defender for a while.

It doesn't matter.

He's pretty good.

His name is Shahan.

Go ahead and introduce yourself.

Hello, everybody.

Thank you for having me here.

All right.

And, Shahan, tell us about the case you're here to talk about.

Man, where to start?

We could start at the very beginning.

Yeah.

Let's begin at the beginning.

Yeah, let's.

So, I get a new case in my box.

I see it's a domestic violence case.

It's not only domestic violence, but also a false imprisonment.

When I was reading it, I saw that it's a young kid.

He has one other conviction.

He's Hispanic.

He is on felony probation right now on a hit and run with injury from the past.

Why don't you go ahead and tell us what did the police report read then?

What was alleged to have happened?

So, basically, there are these two kids, my client being one of them, him and his girlfriend

had rented an Airbnb in downtown Los Angeles.

And the neighbor had called the police a couple times because he had, she had heard that there

was a disturbance.

She said that there was yelling, there were things being thrown around, desks being moved.

And she called the police and the police, I guess, didn't get there immediately.

They waited a bit and she kept calling and they mentioned that she had called a couple times.

And when the police got there, he wasn't there anymore.

And they enter into the house and she's, the girl is there, his girlfriend, she's crying.

And they ask her, you know, what happened?

And she's like, he hit me, he hit me, go get him, please.

So, they start looking for him and they find him a couple blocks away just walking and they arrest him.

Well, I was just thinking that one of the first things I heard was that he's on felony probation.

So, this case doesn't just have misdemeanor consequences.

He potentially has now felony consequences, right?

So, this is kind of a much bigger deal than your average misdemeanor case.

Is that right?

Yes, exactly.

And, you know, if it wasn't for the felony probation, most likely he wouldn't be in custody

and he was in jail the whole time.

So, when I met him and, you know, at arraignment, he was in custody.

They didn't let him out because of the felony probation.

And when I was talking to him, I told him, hey, look, you could be in here, you know,

you're probably going to be in here close to a month before we even get to trial.

You know, how do you feel about that?

And he said, you know, I'm not guilty.

I don't want to admit to anything I didn't do.

And I said, I'm right there with you.

So, all right.

So, you beat him.

He says, I'm not guilty.

You plead him not guilty.

And then what happens next?

So, what happens next is, first of all, the first thing I notice is that he has a huge cast on his right arm.

Okay.

And I'm like, when did you get that cast?

He said, I've had it for a bit now.

And I wanted to take pictures.

So, I took some pictures.

I took some pictures of the injuries that he had.

And those injuries were gnarly.

Like, he had scratches all over his body, the front of his body, the back of his body, his sides, and, like, deep gouges.

You know, it looked pretty gnarly.

So...

And did they seem pretty fresh?

Yeah, they looked really fresh.

I mean, it had been a couple days since it happened, but it looked a couple days old.

It didn't look like they were, like, scars from a long time ago.

It looked like it had just happened.

And where on his body were they?

They were, you know, on his chest, on his sides, like, on his ribcages, on his back, upper back, lower back, on his arms.

It was just all over the place.

So, are you taking pictures of him in lockup, then?

Yeah.

So, I basically got permission to go back there and take pictures.

I had somebody else with me, just in case.

Another public defender that was there, just, you know, just in case I needed to bring those pictures in.

You could lay a foundation.

You could talk about it.

Yeah, don't want to be a witness in your own case.

Exactly.

Yeah.

Exactly.

So, I was telling him, you got to take your shirt off, you know, like, if you're okay with it.

He's like, yeah, I'm fine.

He took it off.

He started turning around and took a lot of pictures.

Okay, cool.

So, then what's the next step in the case, then?

I'm reading through the report, and one of the things that really stood out to me was that she tells police that he punched her with his right hand multiple times in the face.

Now, and I realized that it was the same hand that had his cast on.

Okay.

So, you would think that if somebody's hitting you with a cast, first of all, would the cast break if you're applying that much force to it?

And second, what kind of injuries did that person sustain, like, to their face, especially getting hit?

Like, he was a little smaller than her.

You know, he's like 5'7", you know, he was like 120 pounds, you know, and she was like 5'8" or 5'9".

She was bigger than him a little bit.

She was athletic.

And we found out later that she was a soccer player.

Like, she was sponsored to play soccer in college.

So, she had really muscular legs, muscular arms.

And when I looked at the pictures of her injuries, she didn't have any injuries on her face.

Did she have injuries anywhere else?

So, she did have bruises on her legs.

Where?

So, inner thigh, her left inner thigh, the bottom of her left leg, on her right leg as well.

It was about three bruises in total.

They were, the pictures of the bruises, she had taken herself.

The cops didn't take any pictures of the bruises.

And she had provided it to the prosecutor who then provided it to me.

Oh, so she took them like the next day or the next week or?

Presumably.

Presumably.

That's what she told them.

So, she says.

The police reports in these DV cases, they have like a diagram of like the assailant and the victim.

And they show where injuries are on the diagram on the day that they go to the scene.

Did they show those injuries, those bruises?

Did they show that they observed them on the alleged victim?

So, I'm sure you guys aren't surprised to hear this, but a lot of cops are really lazy when they're writing those reports.

Hold on, hold on.

That's not, that is just not a reality I've seen.

Lazy is actually a generous word.

You know, dishonest, you know, is more like it.

But there were no diagrams or pictures.

There was no drawings on it.

Because usually, you're right, officers do draw little pictures like injuries here, injuries there.

And they mark it off.

They tick it off on the box.

And none of that was covered in the report.

It was only mentioned in the narrative.

Did your client testify at trial?

Yes.

Briefly.

Can you tell us, do you want to tell us a little bit about what he said when you first met him in terms of your defense?

So, my client is on spring break.

His girlfriend's on spring break.

And he's like, you know what, I really want to do something really nice for her.

So, I want to get an Airbnb for a week.

I'll fly her down here.

She's out of state.

We'll spend a week together.

So, that's what he does.

He gets an Airbnb.

He flies her down there.

And they're together.

And, you know, the first couple days, it's great.

They don't have any issues.

And where's he from then?

Is he out of state also?

He, no.

He lives in California.

He lives here.

And I just want to ask, can you paint, they're young?

They're young, yes.

He's like 20, she's like 19.

And like, are they newly dating?

What's the sort of status with that?

So, they had had a romantic relationship for a long time, except they were on and off.

So, they were together one day and not together another day.

They were, once she moved, I think they took a little break.

And then they kind of rekindled that.

And that's why he wanted to like rekindle the romance by having her come back.

So, that's why he invited her over.

So, they were having a lot of fun.

They were drinking.

They were just, you know, doing what kids do.

What were they drinking?

Sorry.

Sometimes it matters.

If it's like tequila, it's like one kind of night.

If it's like wine, you know what I mean?

Mm-hmm.

They were really clear that it was Hennessy.

Oh, okay.

All right.

Yeah.

Like a lot of it.

Yeah.

So, the whole handle was done that night.

So, they had drank together a handle that day.

That's a lot of Henny.

Yeah.

That's a lot of Henny.

So, he wants to do something romantic to get the winner back.

He just didn't want to bang her all week or something like that?

I mean, maybe.

But I mean, I didn't ask him about that.

I just, you know.

I'm thinking like, because he's not like he's asking her to move down from Washington.

He's like, why don't we just hang out for a week?

No, they probably had a mutual understanding of what was going to go down that week.

They were trying to have like a sex week.

Yeah, probably.

Let's just be real.

Yeah, they were having a sex week.

But.

Hennessy and Airbnb.

Yeah.

It gets me going.

I'll tell you that right now.

That's what that sounds like.

I think the thing is, is he lives with his parents and I think she lives with her parents

when she's not in school.

So, they probably had a lot of like, they wanted to have a little freedom, you know.

Yeah, fair.

Privacy.

Right.

So.

Where was Airbnb?

What part of LA was this?

It was downtown.

Oh, it was downtown.

Yeah, it was downtown.

So, it wasn't far off from where we were at.

Okay.

And so, they were having a great time.

And then a couple nights in, he sees her phone light up in the middle of the night.

It's always the phone.

It's always the phone.

Always the phone.

So, he's like, what is that?

Show me.

And she shows him and he's looking through it.

And they're both really drunk at that point.

They're still like, they haven't slept it off yet.

And he scrolls through her.

He takes the phone and he scrolls through it.

And he sees that she had sent, you know, naked pictures to somebody else, you know, of herself.

Oh.

Like during the week, she sent those pictures?

No, I guess from before.

Okay.

He was looking through her phone, you know.

And she said, well, give that back.

You know, he's like, no, we're done.

That's it.

It's over.

I can't be with you right now.

I need you to leave.

Okay.

So, she wasn't having any of that.

She said, no, I'm not going to leave.

They're going to leave.

They started yelling at each other.

And that's, I think, where the point where the neighbor started hearing the yelling and

started calling the police.

So, neighbor called the police while they were yelling.

A lot of stuff was going around.

My client says that he was packing her stuff and trying to get her to get out.

He was trying to get her to get out.

And she wasn't leaving.

So, he started going to the door.

And as he was going to the door, she stopped him.

She said, no, you're not leaving either.

And she's like, we're going to talk this out.

You're not going to leave.

And he says, no, I'm going to leave.

And she stopped him.

And she started, like, pushing him.

And then he started, like, trying to push her away.

And essentially, they're drunk.

They're stumbling over each other.

And they fell to the ground.

And he says that she was trying to get on top of him.

And he's trying to get on top of her.

They're rolling around on the ground.

He's like, he doesn't know where his arms are flailing.

She's hitting him.

He's feeling it all over.

And he pushes her off, runs out of the room.

So, that's his version of the story.

And that's what we went with.

Got it.

Okay.

And it makes sense, considering the injuries.

Because first, even if the bruises were caused by him, even if, those bruises look like they would be bruises that you'd sustain from, like, rolling around on the ground.

It doesn't look like somebody, why would somebody directly, like, kick you into the inner thigh?

Yeah.

Yeah.

You're not going to target the leg.

Unless you're, like, the older brother and giving someone a dead leg.

Yeah.

Or, you know, like a wrestling move or something like that.

Yeah.

And, you know, it makes sense that he was being defensive about it, especially considering his injuries.

He was scratched all over.

Yeah.

The scratches of the back are a defensive scratch as well.

So, maybe he was on top while she was, like, trying to roll on top.

Yeah.

You know, I could see it.

I could see it.

Does she have those, like, super long nails where you have, like, the nail art on it and stuff?

She did.

She did have acrylic nails.

Uh-huh.

They weren't, like, super long, but they were, like, moderate.

So, he had just left.

Now, the police get there.

And when the police get there, she is locked up in the bathroom.

And...

She's locked.

She's locked up in the bathroom.

And the police have body-worn video.

So, the body-worn video, as I'm watching it, the police enter.

They're, like, is anybody there?

You can't really hear anything.

And then they go to the bathroom and they just knock on it.

And she unlocks the door, opens it, and she starts wailing.

Like, she sees that they're all cops, basically, and she starts wailing.

It's very obvious that she increased the volume and she started getting really hysterical as soon as she understood that they were cops.

Right.

She's playing it up.

Okay.

And then, what, the cops take her statement.

They interview the neighbor.

What else?

What else?

Cops are like, "Hey, look.

Everything's fine.

Just tell us where he is.

What's he done to you?"

So, they're, like, already playing into that whole thing.

Like, "You're the victim.

He's the perpetrator.

We're gonna go and get him.

Don't worry.

What's he look like?

Can you tell us what he did to you?"

Those kind of questions.

Very unwoke to assume gender.

Yeah.

What's he done to you versus what happened?

Exactly.

So, the cops are already on her side.

They see her.

And they go and get him.

And he doesn't, he's just walking down the street.

He doesn't even realize that the cops were called at that point.

Right.

And they're like, "We're gonna arrest you."

And he's like, "What for?"

And he's, they're like, "We're just in a, you're for domestic violence.

We're gonna take you in."

And he's like, "Okay."

Just gets in the car.

Super cooperative.

Wow.

He's a really nice kid.

Did he seem, like, what was her physical appearance on the Body 1 video like?

Was it disheveled?

So, she, yeah.

Her hair was disheveled.

She was, like, all over the place.

She was slurring when she was talking.

She had trouble focusing.

I think it's probably because she drank half a handle of Hennessy herself.

And she's trying to come up with a lie, too.

And, yeah.

So, I think, so our theory was that she didn't realize what was going on exactly.

When she, when she saw the cops, she knew that something had happened and she knew that what

she did was wrong.

So, she tried to cover up for herself.

She told the cops what the cops wanted to hear.

Well, and she's pissed.

He's packing up her stuff, like, ending their, you know, week.

And she got caught doing whatever she was doing.

She probably doesn't feel so great.

Yeah.

And she didn't have anywhere to go, really, because her parents didn't know that she was

in town.

So, and she was in town with, you know, with him spending the whole week.

It's not like she could just go home.

All right.

So, then that's kind of what the case is.

The cops come.

She tells them that he punched her.

Does she admit there's a, they grappled on the ground or anything like that?

Or?

She says that he was, she was trying to get off of him.

So, it's basically just opposing viewpoints.

He says that she was trying to get on top of him and she was hurting him.

She says the opposite.

And then, you know, jumping back, what was the, so when she told your investigator a totally

different story then.

So, what she told the investigator is that, that they grappled around and then that he

left.

And when he left, she also left.

And that she went to get her friends.

And she went to the bottom of the lobby of the, you know, whatever the apartment complex.

And she met up with her friends.

And after her friends were there, she took her friends up to the room with her to wait until

the cops got there.

And the video of the cops entering the room is just her in the bathroom alone.

Nobody else in there.

It was just, it was, it was just completely made up.

Right.

Yeah.

Lying about having friends.

That's just sad.

I don't, see the thing is, it doesn't even make sense.

The lie doesn't even make sense.

No.

It doesn't even do anything either.

It doesn't help her case.

No, it doesn't.

I think she was just trying to, it's hard whenever you have a false story to keep up the

falsehoods.

Right.

It's like, it's easier to tell a true story over and over again.

So I think that was it with her is that she didn't, she didn't realize that she was going

to have problems keeping her story straight later.

Okay, cool.

So then are we, are we ready for trial then?

Is that about it?

I think in terms of pre-trial, I mean, one other thing is that his family, my client's

family was always invested in it.

Yeah.

Like they were always there.

They, they were really invested in the case.

He seemed like a really good kid and he, he was really young.

He was going to school, um, and he was trying to learn a trade.

So, and before he got caught up in all of this and, uh, getting, you know, going into

custody for even like a week, uh, can ruin somebody's life.

You know, especially if they have a job, if they, um, you know, go to school, they have,

you know, any other obligation, um, it's going to really mess with you.

So he was in jail for 30 days, uh, before we had the trial and the crazy thing about

it.

And the reason why I mentioned the felony probation in the first place is that the district attorney

was the district attorney was the person or the prosecutors that had the felony probation

and the city attorneys were doing the misdemeanor case.

Right.

But the district attorneys came down and they said, you know, we can just, we just want

to revoke and reinstate probation, no terms on the felony probation.

And you know, we have no problem with that.

We want his firm to get out so that he could keep paying restitution to the people that he

owes it to for their felony case.

Oh yeah.

Cause this is counterproductive.

Exactly for them.

And that was my argument to them is like, Hey, look, every day that he's not working is

another dollar that's not being paid towards those people.

So the, the prosecutors have no problem, you know, with, uh, revoking, reinstating, but the

judge didn't want to deal with that.

He said, we're going to hear the probation violation concurrent with the trial.

Well, because the judge wants to use the specter of a, what was it?

A maximum three year sentence on the felony, the specter of a three year sentence to try

to force him into taking a deal and not going to the trial.

Right.

He wants to scare him into not going to trial.

And that's exactly it.

And that's exactly how the judge approached it in this case.

He said, are you sure you want to go to trial?

You understand that?

Uh, I can find that you violated probation, even if you're found not guilty.

So they were offering him time served and then his felony probation and then, and plead

to the, the new charge for probation as well.

Yes.

And from day one, they were giving him time served.

So he could have gone out of custody anytime he wanted to.

Wow.

Exactly.

And I, that's why I really have a lot of respect for him.

Um, because a lot of people in this situation, and I'm not saying I don't have respect for

them either, but a lot of people in this situation would just take any charge really to get out

of jail.

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So then you're ready to start trial.

What are the 402 issues?

Motions to eliminate, exclude evidence, things like that.

I knew that based on conversations with my client that he had told her in the past that he was suicidal.

Um, and I didn't want any of that being brought up during the trial because it was not related.

Was that in the report somewhere then?

It was not in the report, but I thought that she might bring it up.

Okay.

Okay.

Because I, I think it was going to be related to the questioning, you know, has he, has he hit you in the past at all?

You know, has he been aggressive?

And one of the questions in DV a lot of the times is like, is the person suicidal?

Have they said that they're going to kill themselves if you leave them?

You know, that's a pretty common question, I think.

It's a, it's also a little check box on the police report.

Oh, true.

That.

Yep.

So then what did the judge rule?

So he said, yeah, it's not relevant.

We don't need to talk about that.

He ruled it out.

I also said, I don't want any mention of any kind of, uh, drugs being used.

Um, because again, I had spoken to my client and I had anticipated perhaps that she, his girlfriend would start mentioning that he uses drugs that are totally unrelated to what happened that night.

So they weren't being used that night.

Exactly.

Are we talking weed or meth?

We're talking about, uh, Xanax, Valium.

Oh, that too.

Yeah.

So, um.

Prescription medication.

Yeah.

Prescription medication.

Prescription medication.

Prescription medication.

So the judge said, yeah, totally not relevant.

Not going in.

So now.

So you're off to a good start with the judge then, right?

The judge is fine.

Yeah.

Okay.

Um, and the, okay.

So the prosecutor, um, she says, well, I want to bring up the fact that he's in custody.

What?

Whoa.

Okay.

So, and.

Cause you have your client dressed in a suit, right?

Exactly.

So the reason that we dress our clients in suits, especially when they're in custody is cause, you know, due process issues.

We don't want the jury to know that they're in custody.

It's like, it's bias.

It's prejudice.

It also humanizes your client.

If they're wearing regular suit clothes to a thing, as opposed to wearing a jumpsuit, you know, people look at them differently.

Exactly.

It, there's a reason why it's not allowed.

Um, so.

And what was the prosecutor's reasoning for wanting to bring it up?

So the prosecutor had anticipated that what I was going to say was self-defense.

Um, and she was going to argue, and this is what the judge said, just said, why do you want to mention that?

She said, I want to mention that because I have these pictures.

I had like, I had given her those pictures that I had taken of him because I was going to use it in evidence.

I knew that I was going to use them.

So I had to comply.

I had to give her the discovery.

So she's, she said, I know that he's going to say that these injuries were sustained during that night, but I want to argue that those injuries were sustained while he was in jail.

Wow.

Yeah.

Wow.

So without evidence, she wants to argue that the place that she wants him to go for, for a longer period of time is so dangerous that within one or two days, he sustained multiple injuries.

Exactly.

That's incredible.

That was audacious.

That was her theory.

That is audacious.

So the only other place that you can sustain those injuries besides in this like Airbnb sex room is in jail.

Um, so the judge was just, he was incredulous.

He's like, uh, there's no way there's, he said, he said, there's no way we're going to bring that up.

You're not going to bring it up.

You're not going to bring it up.

And then I thought that was that, you know?

And one other thing that I usually mentioned in my four or two is, I mean, it should happen anyways, but I say, you know, I want the court to order the prosecutor to admonish their witnesses specifically, not to mention any of the things that have been ruled out.

Uh, just in case later, you know, they say, Oh, well I had forgotten or just to not give them an out afterwards.

Good.

Very smart.

So, so she went and supposedly admonished everybody not to say those things.

What was the, what was your voir dire like then?

Oh, I, I think that's a really fun part because, so we had a lot of interesting characters on the panel.

Um, we had, uh, a marriage counselor, um, who, uh, had a lot of opinions.

Um, and we had a doctor, an ER doctor.

And this dude was trying to get out of jury duty since the second he was in there.

And you know, you know, those kinds of people, right?

Yeah.

Every doctor I've ever had on the panel, like just wants to get out of jury duty.

Yeah.

I mean, it's like, they've got lives to save, you know?

You're an optometrist, sir.

So he tells the judge before anything starts, I really need to go.

I need a hardship.

And judge says, why?

He says, I am an ER doctor.

Ooh.

And, and he said, they really need me over there.

And the judge said, well, you know, we really need you over here.

Oh, nice.

And it's your civic duty.

So you got to sit through here.

So I'm like, okay, well at first I didn't know how to feel about that, but I knew that a big part of the evidence that I was going to bring up is the fact that the cast, uh, didn't break upon impact.

And the fact that he had punched her multiple times and she sustained no injuries.

So I thought, you know, maybe I can talk to him about this during what year and see what his opinions about it are.

And I, uh, I don't know how I got away with this really, because I don't think it was probably appropriate, but I started talking to him specifically.

I'm like, Hey, juror number X.

Um, what do you, uh, do you think if somebody is punched in the face, like multiple times, something would happen?

Like there'd be some marks.

For example.

Yeah.

For example.

And then, and no objection.

It was fantastic.

Oh, wow.

Yeah.

And then, and then he's like, yeah, you know, like their, their nose would probably break and like there'd be blood everywhere.

And I think he's trying to make it seem like you don't want me, you know, like he was telling me, he's telling me, you don't want me.

And I'm like, I really want you.

I really, I really want you.

Um, so I, I'm like, okay, you're a lock.

I'm going to get you in there.

Um, and, um, the, the marriage counselor was saying like, oh, you know, these domestic situations, it's like, it's really hard to tell.

It's really hard to tell who's at fault because a lot of the time it's like, it, things happen so quickly.

And, um, a lot of the times the women are the aggressors, you know, not the males.

And, you know, like, he's like, I've, I've, and, uh, it's underreported is what he was saying.

And I'm like, okay, well, I like you too.

Yeah.

And this is a professional.

This is a professional.

So, um, we're going through it and, um, he gets kicked.

The marriage counselor.

Okay.

But the doctor doesn't get kicked.

And I think it's because the prosecutor is like, well, you know, like he really doesn't want to be here.

He'll probably be a quick guilty and just get him out.

You know, that's an interesting theory.

Okay.

From, okay.

No, that's, I was trying to put myself in her shoes.

Honestly, I don't know what she was thinking.

Um, I mean, we can't always assume she might not be.

Yeah.

And the doctor, when he got in, when, when they were asking for challenges and I'm like, no, except the jury.

I just looked directly at him.

And he's like, he looked at me like, why?

Like, why?

He thought I was his ticket out.

I'm like, Nope.

Nope.

That's great.

What was the prosecutor's volunteer like?

She was, she was not that great.

Um, and she was very quick through it.

Um, and we started, we started our opening statement.

All right.

So how'd that go?

So I, I laid it out for them.

I said, you know, um, he really wanted to make this week work.

He really wanted to make this romance work.

And, you know, she, uh, when he found out that she was cheating on him, she wanted her to leave and she didn't want to.

Because she wanted to stay with him.

She wanted to, uh, she didn't have anywhere to go.

Um, and, uh, and she reacted by lashing out at him by hurting him.

And, um, when she found out that the police were there, she had to cover her own ass.

Did you bring up the nudie pictures?

So, yeah, I had to bring up the nudie pictures.

The, I mean, the prosecution was going to use that and say, hey, look, he saw her nudie pictures and that's why he punched her.

And that's why he like got really angry.

That was, that was their, it's very clear that that was going to be their theory.

Hey, A&Gers.

Thanks for supporting the podcast.

Sorry for getting this episode out to you a week behind schedule.

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So how does the evidence roll out?

The prosecutor puts up the, the complaining witness, right?

The alleged victim.

The prosecutor puts up the complaining witness.

Yes.

She goes up on the stand and she, when she goes up there, you know, it was rough because she was articulate.

She was smart.

Okay.

Okay.

Okay.

Um, she gets up there and she's able to tell her side of the story.

She says, um, he saw those pictures.

He got angry and he wanted me to leave and he pushed me out.

He started hitting me.

And at first she doesn't mention getting hit in the face with the cast.

Um, and the prosecutor doesn't bring it up either.

And she doesn't mention, uh, drinking either.

So it's just, uh, you know, a really sanitized version of what happened.

You mean on direct, she didn't mention any of this at all?

No, not on direct.

She didn't mention any of that at all.

She said that she was punched.

She didn't say where or how.

Um, and she said that they were rolling around on the ground and that he was trying to stop her from leaving.

You know, what was her demeanor?

Was she like, was she kind of like meek?

Was she like, like embellishing?

Was she loud?

Like what was, how was she coming off?

She was even keel.

It was kind of, um, I want to say emotionless almost.

Oh, okay.

Yeah.

Yeah.

Clinical.

It was clinical.

Um, and I feel that would have played a big part of what my argument would have been towards the end.

Um, but one thing that happened during her direct is that the prosecutor said, you know, um, tell me about your relationship with him.

You know, how, how had it been prior to that date or whatever?

And she said, well, he was always using Xanax.

And then the judge and the judges said, stop, you know, um, as if him saying stop and punctuating that, it was also just worse because then it's like everybody just heard Xanax.

Stop.

I told you not to say Xanax.

Yeah, exactly.

So there was no Xanax testimony.

Yeah.

Yeah.

As you wave.

Yeah.

Yeah.

As you wave your hand in front of them, aren't the droids you're looking for?

Yes.

So the judge takes us back into, uh, his chambers because, and he brings the court reporter in and I tell him, you know, I started making a record because every time there's any violation of eliminate, I'm just going to ask for a mistrial always.

Um, because I wouldn't be doing my duty as a lawyer.

I think if I did it.

So I say, judge, I want to mistrial.

It's, you know, prejudice my client.

There's no way they're not going to hear that and forget it, you know?

And he said, no, no, no.

I think we can cure this.

So he goes out there and he says that motion denied.

And he said, you better go and tell her not to mention any of that.

Again, we've talked about this.

So we go out there and, um, she goes and talks to the complaining witness, the prosecutor.

And, um, judge says, everybody disregard, just forget that ever happened.

Oh, you know, that's it.

That was, that was his only instruction.

He's like, you should disregard that testimony.

It's not included in evidence.

You should not consider it during deliberations.

It's like the least helpful thing you could do.

It's the least helpful.

So, um, so that happened.

Right.

And then almost immediately after, like within a couple sentences, um, the prosecutor is asking

her, you know, Hey, um, can you tell me, uh, has he ever been violent with you in the

past?

And she says, no, he hasn't been really violent with me in the past, but he's always said

that, you know, he would kill himself.

Um, you know, he, he would kill himself if I were to leave him.

And I'm like, yeah, I was like, Oh my God, just every rule has just been broken.

So the judge, so you asked for another mistrial then?

So the judge says, okay, we're going to go back into chambers again.

And he stormed off.

He was angry.

Um, and we go back there and I said, judge, is he, is the witness just left on the stand

in front of the jury?

The, no, the, the jury goes back into, you know, their jury room.

Okay.

He tells them we're going to have to take a little break.

Okay.

Um, but, uh, he wants to see us in chambers.

He doesn't want to do it outside.

Um, and I'm, before we even go on the record and he said, you're getting really close here

to mistrial.

And I said, well, your honor, I'd be comfortable if we just go outside and you see that on the

record.

How about now, please?

Yeah.

And he said, what's the prosecutor?

Oh, go ahead.

I'm sorry.

And he said, sorry.

Oh no.

And he said, okay, we'll do this on the record.

And what's the prosecutor saying?

Prosecutor hasn't said anything at this point.

She knows that she's messing up.

Okay.

She knows.

Um, and we go out there and I say, Hey, your honor, there's a specific reason why I ask

for the court to tell the prosecutor to admonish their witnesses because they avoid things like

this.

Um, and it's not happened just once.

It's happened twice within the span of a couple minutes.

It's ridiculous.

Really?

This is a point for a mistrial.

And, uh, I moved for a mistrial.

Judge said, you know, I think I can cure this too.

Um, he said, he said, I don't think it's that big of a deal, but, uh, prosecutor, you're

getting dangerously close.

You're getting dangerously close.

And what's dangerously close?

I have no idea.

It's like all the emotions eliminate at this point.

Yeah.

Holding up like his fingers being you're this close.

Um, it's, it's, it's a way.

It's a legal standard.

I hadn't heard of yet.

I feel like the next question is going to be like, and what was the 911 callers opinion

about what was happening?

Okay.

So now prosecutors really close.

Prosecutors are really close to a mistrial.

Yeah.

Um, so what happens next?

Um, so she starts talking about the case and she doesn't make any more slip ups during the

direct of the complaining witness.

And I get up there and I, I start telling her, Hey, look, um, you were drinking that night,

right?

And she says, yeah, um, eventually, you know, at first she's like, you know, I don't remember

blah, blah, blah.

Um, eventually she says, yeah, I was drinking and you drank half a handle of Hennessy.

Right.

And she said, yes.

And then I said, and you remember everything clearly.

And she said, yes.

And I, and I just turned around and looked at the jury for a second.

Oh, you know, yeah.

It's like, did everybody else hear what I heard?

Okay.

So she says, I remember everything clearly.

Um, clearly she gets into, uh, an argument, she gets into an argument with him.

Um, and, um, and she says that she was not stumbling over herself, that she was in control

and that she, she was trying to leave, but he wasn't letting her and that he was really

drunk and he was stumbling over himself and he was, uh, you know, intentionally hitting

her.

Is that the false imprisonment?

She was trying to leave, but he wouldn't let her.

Exactly.

So she was saying that she was trying to leave the room and he was stopping her.

Um, and then she, but she didn't mention how she was hit.

So I said, well, you told the police that, uh, he punched you with his right hand, right?

And she says, yes.

Um, that's the hand with his cast.

Yes.

And you didn't have any injuries to your face.

No, no visible injuries.

Oh my God.

Nice.

Well, emotional scars.

Yeah.

So, um, and I said, she, he punched you really hard multiple times in the face.

Right.

And she's like, yeah.

And she just kept digging herself into that hole.

And I'm like, okay, I have you right where I want you.

And that's, that's where I'm going to keep you.

Um, and, and I said, well, that sounds a little bit like a domestic violence.

Yeah.

And that's where I have you right where I want you.

And that's where I'm going to keep you.

Yeah.

Wow.

Geez.

I'm a, I'm a method attorney.

Yes.

Cool move, bro.

Yes.

Wow.

A little controlling there with your cross examination, huh?

So that actually segues into the video because...

So the prosecutor plays the video on redirect.

Yes.

Okay.

What happens next?

So I, I tell her, you know, that's when I wanted to impeach her with the investigation

stuff.

Um, because, um, I'm like, Hey, look, you, you were alone there, right?

When the cops came.

Yeah.

There's nobody there with you.

Yeah, there wasn't.

Um, and you hadn't had any friends over that day.

No.

Um, and you never left the room, right?

No.

And I'm like, well, you talked to an investigator from, from my office, right?

And she said, I don't remember.

And I'm like, well, you know, with this refresher recollection, show her like a little piece

of paper.

She looks at it.

She said, yeah, you told them that you had friends over that day, right?

Yeah, I did.

You told them that, um, you went down to the lobby to get them.

And she's like, yeah, I did.

But, and then I'm like, no, no, no.

I'm just controlling the situation.

Just yes or no.

That's, that's all I want.

Uh, yeah.

Cause I, she was going to try to explain it away.

Um, and, um, I said, well, when you went up there, you said that you went up with your

friends.

Um, but nobody was in that room with you on that video.

Right.

Um, so you were either lying then or you're lying now.

And, uh, you know, that's, that's, that's what you always hope to dream to come to when

you're impeaching, you know, like, it's like either lying now, lying then it's like, you're

a liar.

Um, and she's like, no, but, and then I'm like, uh, I'm done.

I just left it there.

You know, that's where I just stopped asking my questions.

So you're like, you said you had friends and you didn't, you didn't have any friends.

Nobody likes you.

And this, so that's the end of the second day.

Right.

Um, and something happened that I've never seen in any jury trial I've ever had.

Um, which is, um, that the judge is like, okay, we're going to need the jury to be back

here tomorrow.

And the jury collectively groaned.

Okay.

And they're like a really, really loud groan.

Wow.

And I'm like, uh, when I was, when I heard it, I couldn't, I can't interpret that.

That's either like really bad for me or really good.

There's really good for you.

There's no middle ground.

I'm like, this is really good for me.

There's no way they're really pissed off at her.

Did the judge react to the jury?

The judge started laughing.

He's like, yeah, yeah.

You guys got to still come tomorrow.

Wow.

Yeah.

I didn't know how to react.

Cause I was like, wow, I've never, that was never, I've never heard of that before.

I'm like, okay, well there's a first time for everything.

Um, I'd like to think it's because they really didn't like the prosecutor.

Did the jurors throw like lettuce and tomatoes at the judge or, or the prosecutor when they,

when they moaned?

When I saw them or when I heard them groaning, I turned around and I saw that the main perpetrator

was that doctor.

It was like, he was like leading, he was like leading the choir, you know, like, ah, and,

uh, he just kind of, he slinked out of there as soon as he could.

And, uh, nothing else.

They didn't even look at the judge, uh, me, the prosecutor.

They just, they just left.

They followed his lead.

The rest of the jurors.

I'm like, it might be the foreman.

Nice.

So what happens next then?

So it's time for my case and I'm ready to go.

I'm so happy.

Um, my client, he's great on the stand, you know, like, uh, I was worried at first because

he seemed very timid when I was talking to him.

And, uh, but when he goes up there, he, he tells it like he is.

He says, he says, I was drinking that day.

I don't remember exactly everything that happened.

So I feel like that gives him a lot of credibility.

Uh, you know, he's not denying that things were fuzzy for him.

He's not trying to sugarcoat things.

And he said, I was trying to leave and she wasn't letting me because I was angry because

I wanted to end the relationship and she didn't want it to end.

So he didn't downplay his anger about the jealousy of the pictures and all that.

No, not at all.

He said, he said, when I saw those, uh, I knew it was over.

He said, he said, he said, I knew that it wasn't going to go on.

Um, and when I told her that he knew that she wasn't the one for him, like the marriage

wasn't going to work out.

Exactly.

Got it.

Um, it was more than just a sex week.

Got it.

For him, you know?

Um, so I mean, Airbnb is a lot of money for a young, for a young 20 year old, you know?

I mean, dude spent a lot of money and a lot of time and a lot of energy, you know?

So they would do that for sex weeks though.

I mean, I mean, when I was 20, I would do that for, I mean, I did, there was no Airbnb.

We didn't have Airbnb.

Yeah.

We had parents were out of town.

Yeah.

We had Motel six.

So, so client's great.

Um, I think he's great on the stand and, uh, we get out everything that we need to get.

I show his injuries to jury.

And I'm like, look at these injuries.

These injuries tell the story, you know, like, uh, tell me what happened with these injuries.

And, uh, he said, well, this is when I was attacked.

And I said, so you were attacked when this happened.

You were attacked when this happened.

I was trying to frame the narrative that he was the one that was victimized, you know?

Uh, and I think that the injuries really told that story.

Um, I didn't need to, you know, work too hard to bring that out.

Um, and I, we, I finished with my client.

My client did a great job.

He told a set of the story and, um, and we break for a little bit and she, the jury takes

a break.

Now, so the prosecutor, the prosecutor says, uh, judge, I want to bring something up.

And the judge says, okay, well, we'll talk outside the presence of the jury.

Um, and we go on the record and the prosecutor says, judge, I'm going to bring it up again.

I really need to bring up the fact that he was in custody because I, that's a part of

my theory that, um, he sustained these injuries, uh, uh, that he sustained these injuries while

he was in jail and not from her.

So my terrible theory needs some evidence, your honor, please throw me a bone that that's

part of my theory.

So that's great.

So the judge said, and he said, look, we've discussed this.

It would be wholly inappropriate for you to bring that up.

You are not going to bring that up.

And she said, okay.

And we wait a little bit, uh, for the jury to come in and the jury comes in.

Um, and she gets up and he says, well, prosecutor direct or a cross examination.

She gets up and she says, isn't it true that you were in custody when you sustained these

injuries?

Whoa.

Stop it.

First question.

First question after coming out.

Someone was wearing her ovaries on the outside.

Oof.

Yeah.

That is, that is ballsy.

So objection.

Oh, well I didn't even need to.

You didn't have to object.

Yeah.

Because, uh, at that point the judge said, all the jurors need to go into the jury room

right now.

And the jurors went in and he didn't even say anything, uh, about the case.

He said, I need to go in my chambers and cool off before I talk to you.

And he got up and he walked off.

And, uh, so it was just you and her alone.

It was me, my client and her.

Did you guys start talking about baseball?

Yeah.

What happens at that point?

Dad's really mad.

Daddy's really mad.

I went up to the, I went up to the clerk and I said, I'm kind of thirsty.

Is there any water around here?

And I turned to her and I said, do you, do you want any water?

Oh my God.

Did it prosecute you?

Yes.

Yeah.

Well, first to my client, I'm like, do you, are you, are you good?

And then are you okay?

Yeah.

You know, and I sit down, um, and he said, okay, well, both of you are going to come

into my chambers and we're going to bring the court reporter.

Um, okay.

Wow.

So we, we go into the chambers and, um, he starts saying, you know, I think quite frankly

that it's ridiculous that we mentioned this three times.

Each time I told you that you can't do this very specific thing that it's, uh, you know,

a violation of your, of the defendant's due process, right?

It's a violation of everything we find wholly under the constitution essentially.

Um, and that, uh, you still brought it up and it was the first thing that you asked.

And he said, you know, that that's prosecutorial misconduct.

Miss prosecutor.

That's prosecutorial misconduct.

Wow.

And he looked at me and he said motion.

And I, well, at this point it was actually really rough because I really wish that I didn't

have to make a mistrial motion.

I really wish that she didn't say that because I felt that everything was going our way.

I felt really good about the evidence.

Um, and it's like, but I am obligated to make that motion.

So it's like, um, so I said, yep, motion for mistrial.

And he said, granted.

So he said, I want to hear both of you back here in about 30 minutes as to why I shouldn't

just dismiss this case right now.

And, um, and I went back and I'm, you know, I, uh, I was talking to my client.

I said, I need to look up a couple of things.

So I get on the phone and we have a wonderful appellate department, um, with our public defender's

office that answer a lot of questions.

Um, like the hotline, that's the hotline.

It's the help me.

I know something.

Tell me something.

I'm like, I have 30 minutes.

There's, I, I really need to talk to somebody that's like a hundred times smarter than me.

Um, so I called a pellet hotline and I talked to somebody and they say, well, this is the

case that you want to look at.

It's really bad for us.

And he's like, well, if, if you make a mistrial, really what you need to show that, um, about

the prosecutorial misconduct was that she brought up upon this misconduct in an effort to get

the mistrial because she believed that she was losing.

Oh, that's the standard that she had to use it as gamesmanship in order for it to be a dismissal

with, with, with prejudice.

So, and it's, as you can imagine, that's, you know, a pretty high standard, especially

with, uh, you know, judges as prosecutors on the bench.

But with the jury's groaning and stuff.

I know.

So I, by the way, it's huge for a judge to say on the record, that's prosecutorial misconduct.

Yeah.

They are, they always protect the prosecution.

I mean, I mean, they try to do a good job of protecting everybody, but like that for them

to even just say that that's cause prosecutors, that's an automatic referral to the state bar.

Isn't it?

It's, it was a big deal.

And I think she was very scared because she, her supervisor came down and she didn't go on

the record at all.

After that point, her supervisor just took over.

And the supervisor was citing the case that our appellate, um, you know, attorneys told

me about.

And I said, you know, your honor, this is a really high standard, but it's not an impossible

one.

And if anything fits, it's this case right here where you specifically told her multiple

times.

Uh, I told her, I told them five minutes, five minutes before she goes on the questioning.

She asked if she could do it.

He says no.

And she, her first question.

So exactly.

And, um, I said all that.

I, I, I, what I just said, you said, right?

Yeah.

Obviously I said everything.

Yeah.

I specifically categorically mentioned every single instance that it was mentioned that

she can't say that.

And, uh, the fact that she still said it.

Um, I also mentioned that I believed that based on how the evidence was presented, that it

was likely that we were going to win, that we were going to prevail and that she elicited

that statement.

And she listed at the question really, because she knew what the result was going to be, that

it was going to be a mistrial.

She knew she was dangerously close.

Yeah.

She knew how close she was.

She knew that she was dangerously close.

And on top of it, um, she said, she asked the question that she knew that she shouldn't

have asked after I had asked for a mistrial a couple of times.

There's no way, unless she was brain dead.

Yeah.

There was no way that she didn't know that that was going to result in a mistrial.

Yeah.

So judge said, well, I'm going to have to take this under submission for a little bit.

Uh, he said, I'm going to rule on it today though.

I'm going to go back there and think about it.

So at this point, the DA is called down, uh, because of the felony probation violation

and the DA is saying, why am I even here?

You know, I, can I wave my appearance?

Um, we were just asking, uh, for a revoke and reinstate probation.

Let the guy out to, you know, do what he needs to do.

So we wait, you know, with bated breath and, uh, the judge comes back.

And when the judge comes back, he's, he says, you know, I've cooled off a little bit, but

I'll hear from both sides again, again, okay.

Before he issues the ruling.

And I said, I basically reiterated what I had said before.

And the prosecutor said, well, judge, what we're asking for is for you to walk back that

claim of prosecutorial misconduct, because it was clear that this was made an error.

There's no way that she would have done that intentionally.

Um, and et cetera.

Now.

This is what the supervisor say?

This is what the supervisor said.

So the supervisor is arguing that she's not a bad person.

She's just incredibly stupid.

So one thing that I didn't mention, uh, throughout this whole process is that this prosecutor,

um, and it's important to this next part.

This prosecutor has a very heavy accent, a very heavy accent.

So, and she, it seems like that she can't speak English really properly.

Um, and, but she's been a prosecutor for years.

She, uh, went to a really prestigious law school.

Uh, she went to undergrad in the U S she should, you know, she knows English.

She knows English.

She's done jury trials before she passed the bar exam.

She, you know, she, she's written out, you know, paragraphs and paragraphs.

So, so the supervisor is saying her English is not that great.

Yeah.

Supervisor saying her English is not that great.

And so this is what the judge said.

And really this is, it really, it's so gross.

I sometimes, whenever I think about this case, I just feel really, I feel really gross thinking

about it.

Like I need to take a shower.

Uh, is the judge said, well, you know, I heard her speaking English throughout the trial

and it's clear that she has, um, she doesn't have a good grasp of the English language.

So I could see how she could have misunderstood.

And, uh, I don't think that she did this intentionally.

I think it was a mistake.

Wait, hold on.

No, no way that.

Okay.

So hold on.

He's saying that she cannot be held accountable for any words that are directed towards her

because her English is bad.

Is that what she's saying?

He, he said, based on her grasp of the English language, he didn't think that she would do

that intentionally.

So he said, you know, I was a little heated before when I said prosecutorial misconduct.

Wow.

So I am going to strike that finding and, and find that this was not prosecutorial misconduct.

It was just error.

Uh, well, they're kind of the same thing.

Um.

Was he, was he drugged?

Oh man.

Um, I truly didn't get it at all.

I was a heartbroken.

Um, and you know, I've, I'm used to that.

I'm used to being heartbroken with the system because, uh, that's really what we, that happens

at the end of the day.

And that's really what we're fighting, uh, for is against that, you know, against that,

uh, the idiocy of the system.

He felt so much pity for her.

He didn't want her to get in trouble with the state bar.

I mean, I think that's what it came down to, right?

Like he big pictured it and he just didn't want to hurt her.

That's the sense.

Could she be, could she be disbarred if that is, or she can't be a prosecutor anymore.

Right.

It, what, I don't know what, like what's the ramifications if it's actually prosecutorial

misconduct that.

It's potential suspension of your license for a period of time.

It could be a suspended suspension.

It could just be like a tap on the wrist, you know, a slap on the wrist.

Um, I don't know exactly what would have gone down, but I feel that he did feel bad for

her.

And that's why he said that.

Um, and once I realized that's what the judge was doing and I knew that I wasn't going

to get any traction with the judge, he had made up his mind.

I just went on the record and I shamed her as much as I could.

I said, she went, I said, she went to, you know, Berkeley, you know, it's a really good

law school.

I said, she passed the bar exam.

She's been a prosecutor for years.

If she's making errors like this, based on her grasp of the English, English language,

she shouldn't be a prosecutor.

She shouldn't be an attorney.

And I said, she should really should just quit.

How many of this juror's ER patients had to die for a trial that she just wasted.

She threw it to the garbage.

I almost, I feel like any other trial she does now for now on, we, we got to make a motion

saying she can't be a prosecutor.

Yeah.

A judge has found that she, her English language is not sufficient.

So I drafted an eliminate motion.

No.

For that very purpose.

And if anybody ever needs it.

Wow.

You can get the transcript.

Wow.

Yeah.

We, we did order the transcript for that.

Yeah.

So what happened with your client?

So did they translate the transcript for her language so that she could read it, right?

She has.

So if you thought how bad it was ended right there, it gets worse and it gets worse.

Uh, so client is on felony probation, right?

Uh, and, uh, the judge says, and I'm telling the judge, Hey, look, revoke and reinstate the

felony probation, felony probation.

That would make it so that you don't have to hold them in custody.

Cause it was a no bail hold and he was refusing to change the bail.

That was the only thing keeping him in the, he was only in on the domestic violence case

on a nominal bill.

Just, it was like a thousand dollars.

Um, and the judge said, you know, I have to talk to my supervisor.

Like he said, I have to talk to the PJ, the presiding judge.

And he went back and I think he went and talked to them about whether or not they can

take it out of order because he wasn't dismissing the case.

They were going to refile and retry it.

And he said, I don't know whether or not I can do that right now.

So he goes back and he talks to somebody.

I don't even know who.

So he's saying, I don't know if I can make a determination of whether or not he violated

probation right now because this open domestic violence case is still pending.

Well, yes, but yes.

That's what he's saying.

So I need to talk to my investor.

Okay.

So completely ignorant and incorrect.

I'm sorry, but that is just so wrong.

It's every way.

It's wrong on so many levels.

It's wrong because he, first of all, the, the, the people that the, I know that you're

on probation to the court, right?

You're not on probation to the prosecutors, but the prosecutors are not opposed to letting

this guy out on this felony probation violation.

You've heard most of the evidence that was coming out.

You've heard the entirety of the people's case, right?

Or the prosecution's case, really.

You've heard the entirety of their case.

And you know that if there's going to be a mistrial, that this person is going to spend

an additional 30 days in jail before they get their trial again.

You know that.

So it's essentially a way of keeping leverage.

Yeah.

That's why it's emotionally wrong.

But why it's legally wrong is that he's heard, heard all he's having a probation violation

hearing concurrent to the trial.

So just because the, there's a mistrial at the conclusion of evidence doesn't mean he can't

say, I will continue to hear any further evidence on the probation violation.

Oh, prosecutor, you don't have any.

Oh, defense attorney.

You don't have any.

Okay.

I'm ready to rule.

He can rule on it.

Once both parties say they have no further evidence for the probation violation hearing

just because the trial goes away.

It doesn't mean that changes the posture of the probation violation hearing.

So he could have done it, but he just was woefully incorrect.

And your one, you want him to rule that he violated his probation and let him out of custody.

What, what I want him to do is I want him to just allow my client to admit violating

probation, admit it.

Okay.

Without any additional like language that could be used against him in a future trial.

Just to admit it and to revoke and reinstate so that he can go out and he could fight this

case again from the outside.

Okay.

So he comes back and he says, look, I can't allow him to admit it.

And let me tell you right now that if I were to do this probation violation hearing, I've

heard enough where even if I don't think that he's guilty, that I can order domestic violence

conditions to be a part of his felony probation because it's essentially that's what he said.

Right.

And when I looked at the law, the case law for it, I, I, probation is really broad.

And I do think that based on what he heard, he can order domestic violence classes for that,

even though it's an unrelated charge.

So he said, I can order that.

Um, and that's really the only thing that your client is going to have to do if he gets,

uh, convicted of the domestic violence charge.

He said, so I don't see any purpose in your client, you know, having another trial.

And I go, and I turned to my client because this whole time he's been quiet, you know,

and he's been listening and he doesn't understand what the hell is going on.

So I turned to him and I tell him, Hey, look, prosecutor made a mistake and you're being

punished for that mistake.

Okay.

And really what's going to happen is if you want to try this case again, you have to spend

another 30 days in jail.

And he said, I, I did it once.

I can't do it again.

I did it once.

I can't do it again.

He broke my heart hearing that.

Um, and I told him, I told him, you know, I, I got really emotional because I was really

kind of invested.

I get invested in my clients, especially clients that I go all the way to trial with, you know?

And I told him, you know, like, don't blame yourself really.

It's, it, it's a natural to feel that way.

You know, you've been in jail for 30 days.

Uh, it would break an innocent person.

You know, a lot of people have broken way quicker than you have.

Um, I'm proud of you for like sticking up for your, you know, what you believed was

right and trying to fight this.

And the judge said, well, look, he's going to have to do domestic violence classes if

he agrees to this.

But he turned to the prosecutor and he said, you're going to offer something that's not

a domestic violence charge.

You're going to, you're going to do that.

Like you're going to look into that and come back with something.

So the prosecutor comes back and says, okay, well, um, trespassing with no probation for

the trespassing.

And, uh, that's it.

And I turned to my client and I said, you know, this feels dirty.

And I know it feels dirty for you.

And if you're willing to fight it, I'm here and I'll help you out in any way I can.

I want you to fight it.

But I understand if you make a decision, uh, based on, you know, the fact that you're

going to have to spend another 30 days in jail.

And he said, yeah, I can't do it.

I can't do it again.

So he pled to, uh, trespassing and, uh, he got domestic violence conditions added on to

his probation violation for his felony.

And truly it was a miscarriage of justice.

Yeah.

And it just, it feels dirty because here you're doing the trial and the, the other

side's being dirty.

And then your client's the one that ends up getting dinged for it still, still like, what

can you do?

What more can you do to make sure the system's fair?

You go all the way to the point where the prosecutor or the judge says prosecution, prosecutorial

misconduct, they throw up some BS argument.

They're all like, okay, that's what that is.

And then we'll just, we'll just slam it onto the client or to the defendant.

It's the easy way out.

And it's crazy because the judge saw so much wrong stuff go down like over and over and

over again.

And then completely walked back everything he said.

Like that's the hard part is he actually acknowledged it like on the record and then took it back.

Yeah.

It was, it was really rough.

Um, and you know, I feel, I feel so bad for my client.

I felt so bad for him.

Um, but he was, he was happy that he was going to be able to get out at that point.

He's like, I'm over it.

I'm just never going to talk to her again.

Um, and I'll learn from my mistake of it.

You know, like, and he thought he was, he made a mistake.

And when he said, uh, I'll learn from my mistakes.

I said, you didn't make any mistakes, man.

Like if you, if you look at it like that, then they've are, they've won even more than they

already have today.

You know, I still, uh, I still stay in contact with them.

Um, Oh, okay.

Yeah.

Like just phone calls or email or.

No, I mean, I have a Google voice and I just like, you text me every now and then I text

him back.

It's like I said, I think he's a good kid.

Yeah.

Yeah.

I mean, you did a good job.

Yeah.

You did.

You did fantastic.

As good as anyone could do.

Um, one future tip for attorneys in a similar situation.

Sure.

Uh, that I found out after the fact.

Yeah.

Um, is that if the court makes on its own motion, a mistrial that the standard changes for whether

or not they can dismiss with prejudice.

Um, it's only when a defense attorney asks for a mistrial that the standard is really high

where you have to show that the prosecutor is gaming the system.

If the court makes of it, uh, makes it of its own motion, any kind of misconduct could

be the, is, is enough.

And, um, essentially if I had turned to the court and said, well, do you have a motion?

It could have, it could have solved some issues.

And that's not something you can really know in the heat of it.

Yeah.

But if you also knew it and said that he would have gotten really confused.

And then he would have been like, no, you have a motion.

No, you have a motion.

And then it would be really hard for the prosecutor cause she doesn't understand English.

So she wouldn't even know what's going on at all.

Yeah.

I don't think she understood what was going on at all during that entire trial.

Jesus.

Well, Sean, thanks for coming on the show today and sharing this fucked up jury trial you did.

Yeah.

Um, so, uh, how long have you been a public defender for?

I know you're new, kind of new at the office, but you were a public defender before you came

in, right?

Yeah.

It's, um, getting close to three years.

Okay.

Yeah.

And why'd you want to be a public defender?

So when, when I was really young, um, my uncle, he's an attorney.

He's the only other attorney in my family.

He would bring home like his law books when he was going to school.

And I would just like, I didn't even know what they were.

I would just open them and look through them, just like flip through them.

And I remember reading like, uh, a criminal law book and it had a lot of hypotheticals,

you know, a lot of hypotheticals.

And I'm like, wow, you can do this as a job.

Like, this sounds really cool.

Like I was really fucked up as a kid, you know?

Uh, and I'm like, I really want to get into that.

And then, um, small secret, um, and super misguided.

But when I was like in high school or not college, right?

Uh, what initially I wanted to do was I'm like, I want to be a part of the justice system.

I'm like, uh, you know, I, I want to be a prosecutor.

And people who know me right now would think like, what the fuck, you know?

Um, and I remember I went to, I was in San Francisco and, um, I had an acquaintance that was a prosecutor there.

And I went and I watched what they were doing and he took me to an arraignment courtroom.

And, um, and he showed me what was happening.

And basically there were these guys lined up in a cage and the prosecutors were saying, we want bail.

Uh, defense attorneys were saying, we want them to be released.

And the judge was just like, no, they're going to stay in jail and just like, keep, keep, keep the files going.

And I was sitting there and I'm like, this is really fucked up.

It's really fucked up.

And I'm like, what are these cases? Are these serious cases?

And he's like, these are misdemeanors.

And I'm like, these people are in jail and they're going to stay in jail because of misdemeanors.

And he said, yeah.

And I'm like, okay, well, I don't want to be a prosecutor.

Um, and that's when I really got shifted.

My mind got a little, you know, shifted and I'm like, okay, let me try out the public defender's office.

And, um, I interned there and I fucking loved it.

I loved it.

And that was it.

It was like a romance with, at that point for me, it was like, um, I love the people there.

I loved helping people.

And it feels really good at the end of the day, knowing that you're getting people out of cages rather than putting them in cages.

Yeah.

So, um, it's really inhuman, uh, the way that people are dealt with in this system.

Um, and it feels good to be a part, a small part of it fighting against it.

And, you know, getting paid by the man to screw with the man is really fun.

Right.

So we're like a cancer on the system.

Yeah.

All right.

Well, thanks for coming on the show, Shahan.

Thank you, man.

And Omid, Molly guys, you guys are great too.

And, and if I can, I want to give a shout out to my buddy, Evan Greenberg.

He's a public defender out in Solana County.

I'm sure he's going to be listening.

He's a long time fan.

Evan, thanks for the support.

And dude, why don't you, uh, check out our website and fill out a submission form.

We'll get you on the show too, buddy.

He's a great attorney.

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.