From the Archives: Jumpin’ The Grenade For Truth & Justice

Mike: I got along with the DA. I didn't want to tell him what I knew. But I told him he had a weak case. Before we got sent out, I told the judge in the Master Calendar court the surviving victims that he was calling in should have lawyers because if they were gonna testify truthfully, they would be admitting to a crime. And so when that comes out, you know, more and more and more the DA's case is getting weaker and weaker and weaker. He had to hand it off a more junior member of the hardcore gang unit who went in to take a fall for the team. Friends with a lot of PDs, their parties were a lot more fun. The DAs would stand around with their drinks and the public defenders were cutting loose.

David: Welcome to Another Not Guilty. I'm David.

Nikhil: And the kill.

David: We're public defenders here to share the untold stories of the criminal justice system.

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

David: Stories from the American criminal system. From the forbidden point of view. The one that the man doesn't want you to know about. Also known as the point of view of the defense. These stories are about the many not guilties we public defenders get on a daily basis in an unjust criminal system with the deck stacked against us. yeah, Chris, this is what our future is right here. This is what we're gonna end up further on down the the rabbit's hole of of criminal defense.

Nikhil: He has a lot of his hair, David. I don't know if that's

Mike: Right.

David: Alright, well welcome everybody to another not guilty. What's up Nikhil? How you doing? I'm I'm

Nikhil: Good man, how are you?

David: good. I'm excited it's like a special edition today, folks. We are broadcasting from the lunch hour of the criminal justice system.

Nikhil: Trying to fit in a quick story, fitting it into a short period of time. We also have our homicide not guilty story.

David: Yes. And it's it's a double homicide not guilty, right?

Mike: Double homicide, not guilty.

David: And our guest today is Mike. Mike, welcome.

Mike: Well thank you. Thank you for having me.

David: Good. And we always start off this question start off with this question we probably should have told you up front 'cause it's probably been well, how long you've been a defense attorney for?

Mike: Since nineteen ninety one.

Nikhil: Ooh, wow.

David: All right. And you're a a public defender, right? Yes.

Mike: Yeah.

David: All right. Why are you a why'd you bec want to become a public defender? I know it's been twenty six years since you've answered this question.

Mike: Well, I needed a job. You know, that was the main thing. I was I started out as a DA and then I was in private practice for a while and realized that the lifestyle in private practice wasn't as good as the lifestyle working with the public defender. I I'd had my taste of what it's like to be on outside and realize that it'd be better life.

David: Let me ask so were you in private then a DA or a DA then private then P D?

Mike: DA, private, and P D.

David: Okay. And why did you not go back to the DA's office then after going private?

Mike: been there, done that, and I knew the reasons why I left would probably be s still be there, if I came back. I just wasn't happy with that job. I I liked the job, I didn't like the culture of the DA's office. I didn't think I fit in. But

David: Okay.

Mike: the the actual work itself I enjoyed. Right.

David: And you didn't fit in because and now's your opportunity to talk shit about the DA's office.

Mike: Well you know.

Nikhil: From twenty the the DA's office of twenty six.

David: Six years ago.

Mike: Yeah, no, you know, people are more uptight, they're more looking over their shoulders. there's there's it's it's political and people are one thing you always heard was cover your ass, cover your ass. they're afraid of making a decision where somebody gets a break or that that person that they gave the break to goes out and hurts somebody or kills someone. And so everybody is really worried about that. They're almost obsessed with that. And back back then the DA's office was also at war with itself. So there were a lot of people that were openly confrontational all the time. There were a lot of bad mouthing their colleagues and you know, 'cause whenever the DA would change, then what whatever alliances from the old regime and the new regime would start plotting against each other for the next election cycle too.

David: Sounds the Republicans and the Democrats.

Mike: Yeah, it was kinda like that. And the public defender's office isn't like that 'cause it's non political. And plus I got to be friends with a lot of PDs and their parties were a lot more fun.

Nikhil: I can attest to that.

Mike: Right. And the public defenders were cutting loose with very very uninhibited. So they were just they were more they were more fun people to hang out with as a group.

David: And also there's a public defender, you know, you're into helping indigent people charged with crimes that are being suppress oppressed by the government and you know, that too, right?

Mike: Not really. I mean I mean I just enjoy being a lawyer. I don't really care what side I was on. I like trying cases and doing a job and you know there's equally good reasons to be a prosecutor too. It's just you know, I didn't go to law school to do anything other than to be a trial lawyer and so it's one or the other and I you know, I think I could do either side. It's just I didn't fit within the culture of a a DA's office.

David: Okay. so tell us about this double homicide not guilty you you just had. What happened?

Mike: Right, well it's it's kinda complicated, but it was two counts of murder. alleged is first degree murders. There was a gang allegation and firearm allegation on each victim. So the DA's theory is that my guy was the big honcho of this clique of Marisal Petrucha on a block, a congested high population density block that he ran the block and that there was a fight that broke out on the street between somebody who had the audacity to walk through their street and a younger member of the gang. because of that fight, it was a a affront to the pride and respect of the gang, so that my client went out on a motorcycle with a younger gang member to try to chase this guy down. And then the guy ended up getting away. And he the victim was nineteen. So he the same time the victim goes home where his brothers and cousin and another friend are drinking, and this is like two in the afternoon, and most of them have been drinking for a while, so they're all drunk. So the victim comes home and he's got a gash on his eye and says that I just got jumped. So the four of them then go back and confront my client about what they did to this kid and so my client challenged them to a gang fight, called out the gang and then ordered the kid that he was with originally to run upstairs and get a gun and then the kid came down with a gun, shot one in the back, and then executed another one as he stumbled away. So it was it was a theory of basically gang pride that you if you come in and fight with us, we will kill you. Because we're Marsalvatrucha. Got it. That was the DA's original theory. Yeah.

David: Original. And okay, so wait, so the victim gets in a fight with initially gets in a fight with who?

Mike: 15 year old who happened to be the boyfriend of my client's stepdaughter. client is there in the vicinity in the presence of the fight actually participated in the fight in some way. My client was thirty-nine years old with no gang record whatsoever, but he was wore baggy clothes and he had his head shaved and he had a lot of tattoos.

David: And was the victim a was he a a gang member too?

Mike: No, they the the victim and all the guys involved f that were not associated with my client were all s as far as we can tell good kids. they're all in their late teens, early twenties. They had either jobs or they were going to college or a two year college. These guys were squeaky clean.

Nikhil: tell us a little bit about the Juvie that was also charged

Mike: Yeah, well he was lived on another street, but he went out with my client's stepdaughter. And he was affiliated with the game. He was known as an associate, but he hadn't didn't really have much of a record. But he was labeled as an associate and so he was one of the kids running around. He and my client's stepdaughter were inseparable.

Nikhil: And in the prosecution's theory, the your client's stepdaughter's boyfriend was the shooter of both

Mike: Yes. There's no quite that fact was not in dispute. Okay. He fired three shots. The first one hit one of the victims and then that guy stumbled away. The second shot hit another of the victim in the back. He ran down the street and died. And then the third shot, the fifteen year old then went after the first guy he shot who stumbled away. And then while the guy was on the ground, shot him in the head right in the temple from probably about four or five feet away. just executed them on the street. Well this was in broad daylight, comparable to a city street in the east coast, apartment buildings, no front yards, four or five stories high, a lot of windows facing the street, small units, narrow street, a lot of kids running around in the street. So it's a lot of MS graffiti around.

Nikhil: Well let's let me ask you this. How how is what what's what was their initial theory of culpability for your client if he wasn't the shooter then?

Mike: That he was ultimately

David: doesn't.

Mike: yeah, he directed the young kid to kill these two guys. Okay. That at most, there was a mutual combat, this was a gang fight, guys were getting down with fists, and then because they're Marcel or Chucha, if you go after them with fists, they're gonna respond with guns. That was their theory.

David: So then you get the case like from the arraignment?

Mike: I got it yeah, I got it right away. I think I got it about a week after he was arraigned. Okay. And he was arrested on the spot.

David: And what and what what did you discover once you got the case?

Mike: Well, that my initial when I looked at the case, see w the background is that because this was a double murder in broad daylight the whole detective got everybody on the detective desk from the Olympic station went there and was taking, you know, witness interviews and witness statements and it was it was a big scene. It was on the news but the primary detectives on the case focused on the surviving members of the victims' families. And so and then they focused on my client, they focus Focused on my client's family, and then they foc then they wanted to get the the the kid, the fifteen year old, who got away. And so all the other peripheral detectives were interviewing all the peripheral witnesses. So they only got one version of the incident, and it was it was primarily from the surviving members of the group that came over and got in a fight with my client. So and their statement was that my client somehow, you know, shouted out a gang, made a gang challenge and so and then he ordered him to to kill these two guys. And so but just looking at the case I said, you know, this doesn't this doesn't seem right.

David: That just based off your like experience with other game cases or

Mike: Just any case at all. I my initial pressure was that I have this is a triable case. This is a case that I think I can win just based on what they gave me. It sounded like a very speculative theory. So then I so I went out and started doing my own investigation.

Nikhil: What did that entail?

Mike: Well, I I took the gold line, I mean the the purple line down to the crime scene. I met up with the my suspect's stepdaughter, who was the girlfriend of the shooter. And so we started walking around and she told me that she had all these witnesses that saw it. So I started going around getting names and addresses and they were all telling me the same story that these guys before they came and got my client, engaged my client, were also beating up some of the street drunks on the street. That they were the actual aggressors. Yeah, the victims were

David: The victims were.

Mike: the actual aggressors. And see none of that made it into the police reports. So that changed the whole It it shot the DA's theory out of the out of the water right from the start. So then we had to go around we were looking for video cameras and and everything, but it right from the beginning there was a major piece of evidence that conflicted with the DA's theory of the case.

Nikhil: What was that?

Mike: Well, just that the fact that these guys attacked someone else, these people that obviously had nothing to do with the initial encounter. Right. No, but we found witnesses to these trunks.

Nikhil: Understand. So that ch that changes this idea that your clients had been either you ordered this gang this was a gang fight isolated to a gang rivalry.

David: What I mean before we move on I was there any other investigation you did or things you found out then about the case?

Mike: Well, one of the things was you know, it's just more talking to people. You know, once I got the initial investigation, sent out my investigator and he got their initial statements. my client got on a motorcycle and their the DA's theory was he was trying to follow the victim to continue the fight. But the family was telling me that he went out to go buy a shirt for his son's graduation and that explained why he was on the street. why he was on the motorcycle. And and so what my big mistake was that I didn't go to the store where he bought the shirt. Cause that would was on videotape, surveillance tape, and then I could have gotten a transaction, I could have got on the the proof of the thing and the transaction on video. And I never did that and that would weighed on my conscience the whole time that I had I'd messed up. The lesson I learned is immediately, you know, get that stuff before it gets erased.

David: Wha how did you find that out?

Mike: Well, talking to the daughter.

David: Okay.

Mike: She told me that. his wife was there. She came to court all the time. She told me that's what they were doing. it was and they when we started getting the police statements transcribed and and or the actual copies, everybody in his family gave that story. The problem was that we couldn't find the shirt and you know, and then I didn't get the the record of the transaction. So that was a major part of my investigation. trying to dig that up and I was never able to do it, but the DA made it easy for me in in the trial. So we were able to overcome it because the DA opened the door for us to do that.

David: And what about just any evidence to to contradict the that your client made a statement go get the gun or anything like that or

Mike: Or Yeah, one of the first witnesses that came through as as a transcribed statement was this woman who was an apartment manager that spoke Korean that lived across the street. And her statement was confirmed that these guys as a group of four got onto the street and beat up at least one and perhaps two of the street drunks on the street and my client pulled up on a motorcycle and said, What are you guys doing? What's going on? And then they immediately left the drunk to go attack my client. And it was in Korean and so it took a while for to to get transcribed. And so once I got that I said, Well, you know, that's pretty good stuff. And there was also a TV repair cable guy parked in a van who saw the whole thing and he said that these guys were thumping my client and that he my client never said anything like that. So And there was another victim a witness who lived in an apartment and this didn't come out 'til like fifteen months later. She saw the whole thing and she said the only thing that my clients was just tell the boy to go upstairs. So the only evidence that the DA had to prove their theory was from these four two guys remaining survivors. The remaining survivors. And they they had beat up somebody on the street before they went to my client. So they came into court with dirty hands and

Nikhil: Did they did they know, did evidence come out to sho suggest that they knew that your client was a s the you know, had some affiliation with the shooter? Like when they got there and they challenged him to the fight when he when he says, comes out on his motorcycle and he says, you know, stop beating up that drunk or what's going on Did they know that he was the I guess the the stepdad of of of of the shooter's girlfriend?

Mike: They didn't know that fact, but there was evidence and there was a witness that my client was present during the first encounter.

Nikhil: Okay, so they may have seen him

Mike: So they had one guy who was a street vendor walking by during the first encounter, and he said that my client was probably fifty feet away during the encounter. And but he yelled to the guys to the to the kid, there was actually two gang members fighting with the first victim to get him. And to bring them back. And that that was their theory that my guy ordered them to go gaft after this kid and bring him back. Okay. But as it turned out, this guy didn't really speak English that that well. But that was his initial statement. So my guy was present during the first encounter. So when the group of four returned to the scene about twenty minutes later, the first guy pointed out my client. So he was physically present. Yeah, it all took place right in front of my client's front door.

Nikhil: Got it. Okay.

David: So all right, so what really happened okay, your theory is what really happened is this that the that these guys were beating up street

Nikhil: Street drive.

David: drunks and then that your client spoke up and said, What the fuck you guys doing?

Mike: And then they went after him.

David: And what about the the fifteen year old? Was he there at initially also under your theory?

Mike: The initial yeah, the initial the truth and my theory, the whole long the fifteen year old was involved and he did act aggressively, mutual combat. He ended up f finishing the fight by hitting the guy in the head with a motorcycle helmet and gashing him over the eye. So he was there. Those facts weren't in dispute.

David: So there really was an altercation, physical altercation that that was started by the victims. The alleged initially because they were beating up

Mike: One of one of the victims, the group of four, was initially involved with the fifteen year old in some way. Okay. And then he came back with his with his with his backups to continue the fight. So these guys, you know, as the DA kept saying over and over, these guys are so stupid to try to come back and settle a score in an S neighborhood. These were nice guys but they were drunk and you know, it's like you can't do that to my brother. I don't care if you're S or not. So they came back and Two of got killed.

David: Right, and so then when they did come back there was another altercation, but your client told the fifteen year old just to go upstairs.

Mike: Yeah, that there was that was the extent of it.

David: So

Mike: Other yeah, other than what the surviving victims version of the event was. Right. Their their version was that my client called out the gang and by calling out the gang that means all the young guys are supposed to come and kill on his orders.

David: Okay.

Nikhil: like a it's like a call call b a call to arms I mean it's like preposterous. I I get what you're saying when you read that it's like almost like what someone who reads gangs is like these like you know it's like this medieval group and we're gonna call to arms and come down and attack these guys.

Mike: And and that's exactly what their gang expert testified to. Of course. You know.

Nikhil: sounds like Braveheart.

Mike: If you mess with us, you die.

David: Alright, and then how was so what was the like the the tone of the case? Like were you talking to the DA? Were you trying trying to work out a c a deal or were you just gonna go to trial? Was the

Mike: Well, I got along with the DA. I didn't wanna tell him what I knew, but I told him he had a weak case and it wasn't till the prelim that they found out that these guys had actually beat up people on the street. So I got along with them fine, other than, you know 'cause I didn't want to tell them what I knew. So at the prelim, before we got sent out, I told the judge in the Master Calendar court that these two witnesses, the surviving victims that he was calling in, should have lawyers because they were gonna if they were gonna testify truthfully, they would be admitting to a crime and there's a at least assault with a deadly weapon and also maybe even a provocative act murder theory, you know. So I laid that all out there.

David: Provocative act doctrine applies when someone commits an act that provokes another person into killing a third person. The classic example is when the target of an attempted murder is provoked into firing a gun in self-defense but misses killing an innocent bystander instead.

Mike: And so then the whole DA's office because of that special circ murder giving immunity, then like the higher ups from the DA's office were all there. So

David: they gave the victims immunity.

Mike: No, they they didn't want the immunity. But they didn't know what we knew. So they talked to their lawyers and the DA's attitude was, Well if we gave immunity in every gang case then we'd never be able to prosecute. So Then they take the stand and then that's when I hit with this stuff about them beating up the street trunks. And did

Nikhil: They admit it.

Mike: the first one denied seeing it, but he didn't deny it happening. Okay. But the second one put them both there participating in it.

Nikhil: Well and what w let me ask you this, because there's a definitely two schools of thought about putting up evidence like this at preliminary hearing. What was your stratag strategic to reason for doing that at prelim?

Mike: Well, because it blew their theory of the case out of the water. Okay.

David: You just wanna get those facts.

Mike: Yeah, I didn't know that they were gonna say it. Yeah. I had no idea. They had never brought it up to anyone. And then but I had at least two or three witnesses that saw it. And it was in the one of the statements of one of their witnesses. And so but the DA just he hadn't taken the time to really prep it. So you know it was there in front of his face.

David: So but you weren't concerned about previewing your defense too much or you

Mike: No, I wanted to get s know what they were gonna say. And then when they went ahead and admitted it, then the DA really they realized they had a problem with their case. So then they switched theories that my client and the young kid robbed him of his hat, his Dodger hat.

David: Wait, this is first time robbing ever came up?

Mike: Yeah. He switched theories right after this came out, then he switched his theory that it was a robbery. In the middle of the prelim.

Nikhil: In the middle of the prelim?

David: The DA's like, well then it must have been a robbery.

Mike: Right. Well yeah, it's pretty much what he did.

David: And the and the theory was because he took

Mike: They they had a surveillance video footage of the my guy putting on his hat, a dodger hat after the incident happened. The incident wasn't on video but the my guy putting on a dodger hat was on video. So one of the victims said that's my dead cousin's dodger hat and I was there the night before when his dead brother gave it to him as a present. And it was this little grainy long distance video. And but that I know for sure that that's the exact dodge.

David: Right.

Nikhil: Dodger Blue. Dodger Blue.

Mike: So of

David: What are the chances of LA there being a Dodgers batch?

Mike: Yeah, I mean so and of course their witness on the street didn't see anyone pick up a hat pick up a hat or any any fight over a hat or anything like that. So that was literally his theory. Yeah, it was gonna s rob a guy for a Dodger hat. Okay. So then it switched to that they stole his cell phone and this was their theory at trial that they stole his cell phone. But then as it came out, the evidence was he called me on his cell phone and he texted me on his cell phone to inform me that his cell phone that he's calling me and texting me on had just been stolen. And we need to go back and get that cell phone.

David: Who's he? He called me?

Mike: The the the surviving the first victim at the street who's that

David: saying that.

Mike: he texted him to tell him his cell phone had just been stolen. So it was it was a ridiculous theory. Yeah,

David: What the victim's cell phone was.

Mike: so the victim that got his cell phone stolen. Yeah. So with that cell phone that was stolen, he texted the buddies to tell that his cell phone was stolen. Got it. And that was a theory that they put on with the straight face in the trial.

David: Was there evidence of a stolen phone? Or a phone being taken or?

Mike: There was in something, you know, when these guys were interviewed that may have been volunteered. You know, but it was yeah, it was it was it was comical.

David: Like the first and this is the first time it's ever being brought up as in during trial, right?

Mike: I think on the second prelim that theory came out. And so, you know, of course I didn't bring it up at the prelim, you know, but they brought it up at trial and so.

David: What was the so how was there a second prelim in this case?

Mike: Well what happened is it got down that the trial was gonna fall right around Christmas, so I talked my guy into putting it over one month. So he waived time 30 days. And so then we took it down to the like the twenty-sixth of thirty day, which is in the end of January, and the DA announced he was dismissing the case because he was unable to proceed. But he was gonna immediately refile it. And he told me he had no case at that time, but he was hoping he could come up with something after he refiled it. So then we offered to waive preliminary hearing and proceed straight to the new trial date trial date on a sixty day calendar and he specifically said no, by us having this prelim second prelim, I can buy myself another month.

David: DA's openly admitting he doesn't have a case

Mike: Yeah.

David: and he needs more time

Mike: He thought he he he thought it was just maybe he could come up with something. And so the point you know, the position we were at was that this was a special circumstance murder. Death penalty was still technically on the table.

David: Under Penal Code Section 190.2, the penalty for special circumstance murder is either death or LWAP. Life in prison without the possibility of parole. Penal Code Section 190.4 lists all the special circumstances, which includes murder by a gang member done for the benefit of the gang.

Mike: I think and I'm convinced that they just realized it was easier to go in and lose a case than than than actually make a decision. Then to that they're gonna be questioned at Yeah.

Nikhil: Jurors acquitted this guy then they decided to give a a PC thirty two.

Mike: Right. They'd rather they'd rather put it in the hands of a jury than admit that they made a mistake in filing the case or having to justify giving a probationary sentence on a case that was filed as a double murder.

Nikhil: Well that goes back to what you were saying originally about the culture of cover your ass, right? Right. Like let let's let the jury take care of it and then we don't have to no but none of us are on the hook for something bad that happens later.

David: Right. So you're saying the politics of back in the nineties of the DA's office still exists till today?

Mike: Yeah, well this is different type of politics. I think, you know, that that this goes on a lot, you know, it's sometimes you know it's the worst thing that can happen with a DA in their career is to give someone a break and then that person later goes out and hurts someone. So then they have to justify why they gave the break. So if you if the jury makes a decision, they're not on the hook for making the decision.

David: That always bothers me though, like that if it's a d it's gonna be in the paper and my career is gonna be over.

Mike: Right. And it does happen and so it's it's easier for them to lose than do the right thing sometimes.

David: So all right, so there's a second prelim and then there's a new theory that comes out.

Mike: Yeah, they they store the

Nikhil: It's a cell phone robbery.

David: All of a sudden it's a cellphone robbery case. Did they add a robbery to the

Mike: No.

David: They still just went with murder? Okay. Yeah. All right, so you do the second prelim and then just straight to trial?

Mike: Straight to trial.

David: And you had all your witnesses.

Mike: Yeah, I I spent a lot of time there was one witness who was this cable delivery I mean cable repair guy who was there and saw the whole thing. But he was dodging us the whole time. So we kept going and door knocking on this door early in the morning, weekends, nights, and we could never get inside to to actually serve him with the subpoena.

David: We like you

Mike: I went down there a few times. So my my investigator and I were dis you know dividing it up, you know, you hit him at night, I'll hit him on day, you go on Sunday, I'll go Saturday. And we could never get the guy in and then we find out from the DA that yeah, he's cooperating with us. So he the DA subpoenaed in a witness that we'd been trying to get in. Okay.

David: And had you turned over all your statements to the

Mike: All my all I'm sorry to interrupt, but all my statements were his statements.

David: Okay.

Mike: We maybe had one wit witness that I'm sorry. That they didn't have. And I don't think I turned that statement over because She was I didn't need to. Yeah. You know, so but it was going and getting neighbors. We had, you know, long time neighbors that had lived in the neighborhood a long time that saw the thing and by the time when we were interviewing him, all were constantly telling us, I can't believe that your client was the one that got arrested because of this. And it was it was pretty consistent.

Nikhil: even at like disinterested parties like they don't fit this gang stereotype like the Korean apartment manager who corroborates your theory. Right? I I think it's you know one thing that they can maybe point, this is a Maro Salvatruccian neighborhood, maybe these people are intimidated, but like some of these people are just so

Mike: And one of was the actual neighborhood watch captain. She was the neighborhood watch captain, was on our client's side and we had her lined up, but we didn't feel the need to call her.

David: Wow. So you had a strong case if you didn't even call the neighborhood watch. Captain

Mike: Yeah, yeah. It was right. So and she was one of the original nine one one callers. she was one of the original witnesses that gave a statement and exonerated my client, but it was taken by these peripheral detectives and so that didn't make it into the initial discovery. And so she doesn't come out until fifteen months later.

Nikhil: Well, you didn't get the discovery of her statement until fifteen months after

Mike: We had her nine one one call and we had her number we could have found

Nikhil: But no, but not the like the actual detective summary of her statement.

Mike: We didn't get it for fifteen months. So what happened is we geared up for trial after about a year, and then the DA went out and met with the I.O. to make sure that they had everything, and they turned over like fifteen or twenty FI cards of new witnesses. These are the the peripheral witnesses, and then they said, Now we have to transcribe them, we have to interview and transcribe them. So that delayed the trial another two months. wow. And so when that comes out, you know, more and more and more the DA's case is getting weaker and weaker and weaker.

David: Well let's talk about the trial then. What so this DA that you know, was buying time and was trying to buy a theory, how how was he in trial?

Mike: Well, as it turns out, he had another trial he had to do, so he had to hand it off to a younger a more junior member of the hardcore gang unit who went in to take a fall for the team. So he and i th he did do it. And so and I know this because just because I know how their office works and he's a good guy, a stand up guy and The When we're gearing up for trial, and this is less than a week before trial starts, these detectives that we're we've got under subpoena are calling the DA or and calling me saying, I didn't know this case was going to trial. This was the IO on the case, six days before we start jury selection, calling me, wondering why I'm subpoenaing because him because he didn't even know this trial was gonna happen. And so I called the DA on that and I said, Are you going forward on this trial? He says, yeah, yeah, yeah, yeah. And so what he did was he

Nikhil: He just

Mike: issued all these subpoenas and gave to the detective and then he went around and got as many people as he could and whoever showed up to court then they put on the stand. So they they he it was basically a double murder case that they prepped over the weekend. Wow. Yeah. So so I know that they were going in there to take a fall. So he he called witnesses that helped me. So

Nikhil: So you just so

Mike: I didn't need to call anyone. I'm sorry, Daniel.

Nikhil: you you thought that I mean, it didn't really require a lot of build up on your side because all the evidence that supported your theory was in your their discovery packet that they provided you. Right. And they called and they subpoenaed these witnesses for

Mike: Yeah, they brought in my witnesses, people that I'd been trying to get, they brought into court. people that helped me and hurt them, they put on the stand. He did his perfunctory direct examination, then I'd score all kinds of points on cross, and then he doesn't even do any follow up redirect. He just okay, I'll put on the next guy. So I knew they were taking a fall. They yeah, they they just basically laid out what they had and let the jury decide. But so anyway I knew we were going to one of the quicker courts, the long cause courts, and my fe feeling was that I was just hoping we didn't get to sent to Judge Perry's court, 'cause he's really, really fast. And so 'cause there's still a couple witnesses that I hadn't done my full trial prep on. So of course we go there and I figured it was like a one out of ten shot we get sent to Judge Perry's court, but that's where we went. So So it's like, Okay, well I'm gonna have to work hard, but this will be over quick. So We went to Judge Perry's court and got there at about nine in the morning. We started picking the jury at about ten in the morning and we had the jury picked by about two thirty or three in the afternoon. So double hung.

Nikhil: On a d on this double homicide. Wow.

David: How many jurs did you did you kick?

Mike: Maybe about six or seven. And I think I accepted the panel after kicking off one or two.

Nikhil: Well w did y the was the gang allegation did that remain on this case?

Mike: Yeah, remained on the case. And then one of the guys that the the DA kept on, was this guy who was thirty years old, Latino, sh bald head covered in tattoos. And but he didn't have any gang record and and so my question to him was, have the police ever accused you of being a gang member? And he says, yeah. And the DA kept him on. Wow So That was part of our theory that our guy even though he looks like a gang member, just 'cause he's young, Hispanic and tattooed, doesn't mean he's a gang member. And so this guy and so the DA kept him on.

Nikhil: That's I mean I guess what you're saying about mailing it in a little bit, 'cause I can't I can't fathom a DA keeping somebody who's been stopped by the cops, let alone mistaken for a gang member.

Mike: Right, yeah. So he they went in and took a fall.

Nikhil: So and then so you tried your case, any any particularly interesting issues come up during cross or during your presentation of evidence?

Mike: No,

David: How did the how did the friends, the two friends that survived, how do they how do they testify?

Mike: you know, y you know, it's clear that the one guy that they needed to make their case, the only one that said my client ordered him to shoot, was was horrible. You know, he was he was drunk. no, no, when it happened he was drunk, you know. I had so much ammo on him, you know, but

David: How'd you spray up? What'd you say? What'd you do? You you

Mike: I just confronted him with his, you know, with everything that he had. I mean the first thing he did when this when the shit hit the fan is he ran away. And he knew that at least one of his two cousins had been shot and he still ran away. the police had to find him in the house to get him to come down and in and then they had to bring him down to the station and when they got him to the station he said he was too drunk to remember i anything. And they finally got him to admit that he did remember everything. And so all this came out, you know, right away. I mean, I just crossed him on that. And then he's then he finally

David: P couldn't the prosecutor justify that and be like, Well, it's a gang he it's a he's a afraid of retaliation 'cause it's a gang shooting and a gang case.

Mike: Yeah, I mean that was probably the way they argued it if they wanted to argue, and I'm not sure they did. But my thing is is just a consciousness of guilt that they went over there to stir up trouble and things didn't turn out the way they thought it was. And so he knew he was in trouble, so he ran away and hid. And that made more sense than Yeah. It was at like I say, there wasn't a lot of fighting. I maybe objected I you know, fewer than ten times. I'm not sure the I got away with a lot of stuff on cross that that other DAs would have jumped on and fought over in the future. You know, I just think you know, it was pretty the actual trial itself was very easy.

David: What about the what about the second victim that or the person who didn't die, I guess. Survivor. The survivor. How did he

Mike: he of all the four guys that went over, it seemed like he was the lightweight as far as involvement. He seemed to be the one that was tagging along, watching everything. And it's questionable whether he actually engaged in any of the violence. But he didn't have anything incriminating directly on my client because he didn't say that he actually heard him say anything. he d and so

David: Alright, so the first so this survivor says he doesn't hear your client say anything. So he doesn't

Mike: He says he hears somebody say something after the shooting. He I think he said he heard my client shout out a gang thing, but after the fact.

David: Okay. And he wasn't sure.

Mike: And he couldn't even say for sure it was my client that said.

David: And then the other survivor does say your client d makes the directs them to go upstairs. But then that's when you

Mike: No, he didn't say that. He said my client got down and started, you know, getting down, taking on four guys in a fight, you know. Because he knew that, you know, his homies would come to his rescue and blast

David: Did did they admit to beating up the people on the sidewalk prior to

Nikhil: That's true.

Mike: The main witness denied it, even though it was very clear from the other witnesses that he was one of the main instigators of beating up the street drunk. He denied it. The

David: The one that ran away.

Mike: one that ran away. He denied it, okay. He denied it. The other one again said, Well, that happened before I got on the block, but all the other witnesses put him there at the scene. So I still think that he was there to r reluctantly, but because the other three of his family Went there, he followed along and he ended up getting involved.

David: And how did the how did their gang expert testify? What did he say?

Mike: that my guy is a gang member and it's the way he looks, you know, the way he has his tattoos and with this this is a very violent gang and it's all about pride and they'll kill you for pride and you come onto their block and mess with them, they have no choice but to kill you because they'll lose respect if they don't, you know, that kind of thing.

Nikhil: It sounds very scientific to me. Yeah. Right? Yeah, very scientific.

David: Based off of

Mike: Part.

David: based off of since he's no silver

Mike: Expertise because he works the gangs and he and he's been to these cop gang seminars and and he's been trained by senior officers and he grew up in a gang neighborhood, so therefore he's an expert on ic on the fact that these guys will kill you for

Nikhil: Pride.

Mike: Yeah, they'll kill you for pride, even though it was in front of a probably like twenty or thirty people. My guy's got a job, he's got like five or six kids that he's raising. you know. that that he'd throw it all away, you know, just and go to prison for the rest of his life just for the sake of neighborhood pride. You know, it was it was it was bad.

David: Was there was your client I mean, thirty nine years old, so did they have any any FI card filled identification cards? Nothing. And yet no tattoos?

Mike: he had tattoos. He had a like a El Salvador five three tattoo on the side of his head. so they made a big deal about that because if since he's from El Salvador, then he's likely, you know, affiliated with MS or that type of thing. they had one contact with him on the street and the actual address of where that contact that they said was a gang contact of him being on the street was actually his place of employment. So he's either out out taking a cigarette break or walking to work or coming home from work and the gang officer hit him up and but forgot to mention that that's where he worked.

David: He's gang banging out of his job.

Mike: Yeah. It was it was comical. It was, you know.

David: And how did you did you how did you cross the Gangk then? Would you like

Mike: I didn't I just brought out those facts, but I also said, you know, one of the things he said at the one of the two prelims is that MS started out as a self-defense force. You know, it and in essence, gangs are protection. They, you know, they want to protect their neighborhood. And so I brought that out. And then I said, Well, isn't it true that gang members are often the victims of violent crimes? And he said, Yes. And then I said, Isn't it true that prior to this date there was no documentation of gang membership by my thirty nine year old client in the city of Los Angeles, the county of Los Angeles, the state of California, or the United States of America. And he said yes. And he was thirty nine years old. Did you Yeah,

David: Do it that order.

Mike: in that era I was there

David: C to shiny seed.

Mike: Yeah, I was very dramatic. But it was you know

David: East Coast to the West.

Mike: Yeah. So that kind of thing. So I went after him at the prelims, you know, trying all these different angles. Yeah. But when I got to the to the trial, I you know, the whole theory was if he did anything violent he was just defending himself. And just 'cause he's a gang member doesn't mean he doesn't have the right to defend himself. Yeah. So

David: and how was the judge during the trial then?

Mike: he was on my side. he's a good judge. He's seen it all. he cuts right to the chase. he actually cut the gang expert off on a on a few areas. You know, some of these hearsay guys saying that my guy's a gang member. He wouldn't let the the gang cop go into that. he knows exactly what he's doing. he let me play a nine one one tape without laying the you know, going through the evidentiary foundation. He said, Well if it's a nine one one tape, just play it you know, so He's he was good in that respect. Right. Yeah. He said, you know, we don't need to go through all this foundational stuff if you're gonna be able to do it anyway. We might as well just cut to the chase. That's great. Yeah. So and then it was like a after like an hour of deliberations I started to get worried, you know, and then they came back after about an hour and forty five minutes not guilty. Wow. Yeah. It was it was, you know, and when it was all over You know, it was this I was angry more than anything that they'd actually put my guy through this. Well

Nikhil: You were enjoying us for your not guilty verdict?

Mike: No, it it was a sense of relief, but it was more anger. Uhhuh. You know, and this guy lost his family, you know, his wife moved away with the kids. They split up because of this. he lost his job, you know, he he lost everything. She had to sell all his stuff to support the kids, you know. It was a tragedy.

David: So the family wasn't there supporting him during the trial then or?

Mike: His mom came in and his brother, but as far as the wife and kids

Nikhil: This this trial base. this these charges kinda broke up their family.

Mike: And and that what's interesting about it, even after all this investigation from the police who invented who presented it to the DA in the light most favorable to the police, only recommended that the DA file accessory after the fact. So it was the cops took a accessory after the fact to the DA, and the DA looked at it and said, I think I can make a double murder out of this. So he filed the double murder, even though that's not what the cops presented him.

Nikhil: Even though and then the cops d in our practice generally try to file or look for the greatest charges they can. Yeah, I mean I've never seen a cops go less than what they they could.

David: So the police report says we arrested him for P C thirty two.

Mike: Yeah, that my booking the booking photo of my client P C thirty two. The the face sheet P C thirty two. the arrest charges P C thirty two. And then they take it to the DA and he files death penalty murder. So I mean it's

David: And then he and then he ditches the case, right?

Mike: Yeah, yeah, yeah. Yeah. And and the thing about it was that he never called up afterwards and, you know, congratulated me or anything like that. I had to bump into the hall about a month later. He says, Hey, good work. Congratulations. And it's

Nikhil: Ha ha.

Mike: So it's it's it's hard to make admit you made a mistake. Yeah, I think in in his heart he believes that my guy was good for it and that justifies it.

David: You think so? It's not like politics on his he's trying to make a career, trying to like run

Mike: I think it's really

David: away forever so he can say he fights hardcore gang members and then one day he can be a hardcore gang member judge or running and be a judge or something, you know, because he sticks it to the community.

Mike: Well, you know, there may have been something there but I think he's not known for that. I think he has a pretty good reputation and but he made a mistake and it's hard to admit it.

Nikhil: That's human nature for sure.

Mike: Yeah,

David: Biggest mistake crossing Mike on a case? Trying to make a case on nothing when we got old Mike there at the helm there or was that his biggest

Nikhil: Guard guarding the civil liberties of our of our community members.

Mike: I think a lot of defense lawyers would have won this case.

David: But did you were you even like stressed then? Were you sleeping at night or

Mike: I didn't sleep, you know, as I get older I have trouble sleeping during trial. When I was younger I'd sleep like a baby. But this one I had trouble sleeping and I think two of the nights I probably slept a total of five hours. But I knew that I can make it two or three days on little sleep. It's not it's it's when you get to like the fourth or fifth day, that's when it starts to catch up with you. But towards the very end, I was I was really When I had to finally wrap up my case, playing a nine one one tape and you know that kind of thing, I was already slow and I was losing it. So it was hard, but I was ready. I was prepared.

David: What's your with Voidier, like in this type of case, what was your sort of themes you were hitting during Voidir? Or was it just being, you know, burden of proof and be open minded or?

Mike: Can you give a gang member a fair trial? Can you give a guy like this that looks like this a fair trial? Do you live in a gang neighborhood? Have you had a bad experience with gang members? Basically, that was it. And I was looking for smart people too. So it was a pretty educated jury. But no, I mean there wasn't anything special to it. Yeah. You know, and this judge, you know, has a way of cutting to the chase anyway. Right. So like I said, I I think I started accepting the jury after kicking off one or two. It was the DA that was kicking them off. And then once he realized that he was kicking off a lot more than me, then he had to be a little more cautious. So it was like I was confident going in.

Nikhil: Yeah, just leave thirty year old bald headed tattooed Hispanic guys who've been falsely accused of being gang members on the jury. I mean sounds a caution to me.

Mike: If that guy's gonna stay on, you know, he's so you know, it was

David: Did you get righteous in your closing argument? No.

Mike: It was pretty easy. I did feel angry when it was over. You know, that was the one emotion I felt was anger that this could actually happen. And I think it happens a lot.

David: Yeah, if he's like two years, he's locked up.

Mike: Right. I mean and and it was it was a good family. These guys came from a good family and the family was all there, you know, they probably had like fifteen family members there, you know, but I think they knew when the trial was over that they knew that my guy wasn't good for it. They were classy people.

David: And as a public defender, you know, like you just chalk that up, nice victory, but you just had to move on to the next, right?

Mike: Yeah, it took the fight out of me. I don't I still haven't got it back yet. Yeah.

David: Really? You sure?

Mike: I'm starting to get it back.

David: Aren't w aren't in twenty minutes, aren't don't you have to be fighting for another client right now?

Mike: This week I have it. I find it's starting to come back this week. Uhhuh. But for the last two, three months I just haven't been motivated to do any work. 'Cause this was weighing on when I got this case from day one, this would this was weighing on me all the time. Almost two

David: For two years it waited on you.

Mike: years, yeah.

David: And so then you also have to think about how you did not get the receipt or video of your client buying a shirt too for two.

Mike: Years like I screwed up and as it turned out the DA put on my guy's statement that that's where I was buying this this shirt and he gave the exact address where it was and so then all I had to do is send an investigator there to retrace his route and it was the exact amount of time that he was gone and on the exact streets that he was seen riding. So the DA gave me that. wow. And the other thing was is that on my guy's statement The police tricked him during the interview to to the typical police thing is we have you on videotape. So we already know everything that happened. We know everything that you did. So we just want to know why. But they didn't have any video tape. So my guy through out his entire interview is saying, Look at the tape. I didn't do anything wrong. I can't believe you're holding me if you're looking at the tape. I'm begging you to look at the tape. And he must have said it twenty times. Wow. And so that comes in in front of the jury and I'm saying a guilty man doesn't

David: Say look up.

Mike: show I didn't do it. Look at the evidence. And so and then they put that on, you know. They didn't have to put that on. That didn't help their case. Yeah, I mean it was

Nikhil: I mean him and James Gunn to look at the tapes.

Mike: so they they, you know. It wasn't brilliant lawyering. That they just had no case and my my challenge was not to go in and screw up.

David: Do you think the co defendant has a self defense claim?

Mike: I think based on everything that came out on our case, he could he has a good chance of getting out of this by beating the first murder ons defense of others and getting a voluntary manslaughter.

Nikhil: Gotcha.

Mike: Yeah. Or just provoked these guys came in and started beating up people in the neighborhood. That's true. You know, what do you you know, you that would provoke people to

Nikhil: Killed.

Mike: Como assim?

Nikhil: Well thanks for coming on Not Guilty Mike.

Mike: no, it was it was fun.

David: Yeah. And I mean I know you're slowly getting back into the game, but you know, you're allowed to come on here again, a second time.

Nikhil: That could be encouraged.

Mike: Well I I I get a nod guilty about once every five years, so if you guys are still in business, you know. Right.

Nikhil: I know we'll we might be national by then, have a T V syndicated T V show. Who knows? Who knows?

David: Alright, well thanks Mike and you

Mike: Hey, you're welcome.

David: for being such a awesome public defender.

Mike: Well, thank you.