Can't See The Forest For The Palm Tree – When the State Tries to Make Arson Out of a Spark

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Honestly, what I was doing at that point, as soon as that was coming in, what I was thinking is, "How do I use this against the DA? They're bringing in a charge now that has a degree of ridiculousness to it. And so I need to use this against them. They want to, they want to try to get the six years. They're going to pay for that extra, that trying too hard." And I asked him on cross, I said, "Is it, is this, is this property, is it located in a forest?" And he didn't understand. I mean, like, he was confused by the question. I think he thought he misheard me. He was like, "What?"

Like a forest. Is it in a forest? He goes, "What do you mean?" He's like, "In a forest, like trees?" He said, "Oh yeah, okay, a forest." Yeah, I was like, "Is this in a forest?" He goes, "No."

Welcome.

Welcome.

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

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

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

In an unjust criminal system.

With a deck stacked against us.

The not-guilty.

This is gold.

Start recording. Start recording.

Pick up the mic, because I'm going to make sure you're introduced this time, Mom.

What do you want me to say?

Nothing.

I'm just...

Break a leg.

Yeah.

Alright, so we're recording right now. Right, Chris? Okay, great.

Welcome back, everybody, for another Not Guilty.

We have an unusual cast of characters here today, but that sounded kind of weird.

But we have a good group of, a good mix of people here today.

A&G co-hosting alongside is Benny, right here.

Hey, Dave. Thanks for having me.

Also, though, for the first time ever, guys, is my mom is here today.

Hey.

Hi, David.

Hi.

You going to go with Denise, or just Mom, or...

Whatever.

What do you guys want to call her?

I'm probably more comfortable with Denise.

Denise?

Yeah.

Okay.

Alright.

We'll see where I go with it.

We'll see what happens.

I answer to both.

Guys, our guest today is Mike.

He's a dope-ass lawyer that I work with every day.

He's...

We've been working together for what?

Six months, maybe?

About six months I've been in the office.

No.

Where you've been for longer.

Right.

I've been in this location.

Yeah.

Yeah.

I came from...

I was in the...

I've been with the office for about five years.

I was in juvenile for about two years until about six months ago.

Okay.

When I moved to my felony assignment where we worked together.

Right.

Nice.

Well, alright.

So, tell us about this case then you just won.

What were the charges?

Felony arson.

It's Penal Code Section 451, Subsection D.

What's...

What is Felony Arson?

What is 451D?

What does that say?

Okay.

So, the main arson statute, it's Penal Code Section 451 and there's A, B, C, D and they're

for different types of things that might catch fire or different results that might happen

from a fire.

So, in any of them, to prove the case, the prosecutor would have to show that the person

willfully and maliciously set a fire or caused a fire to be set.

So, there's this quasi intent element, willful and malicious.

And that was sort of became the main issue in this trial.

So, subsection A is if there's injury as a result of it.

And then, subsection B is an inhabited structure.

So, if a fire is set to someone's home.

Subsection C is if it's either an uninhabited structure, like maybe a garage, for example,

or a tool shed, or forest land.

So, there's two options for C.

And then, D is just any other type of property belonging to somebody else.

And the penalties, the maximum penalties go down as you move from A to D.

Because A is obviously the most serious where it caused injury.

D, just miscellaneous property, would be the least serious.

So, the maximum penalties kind of step down with each one.

Like D for debris?

Yeah.

I mean, if you set someone else's trash on fire, that is...

It's debris, right.

Yeah.

I had an arson case once where they lit the fire and the embers sort of spread through

the neighborhood and they would land on cars.

And there was paint damage on the nearby cars.

And each car that got damaged, they charged as a count of arson.

Because of the embers from the fire.

And I was just...

I don't think that's...

I was blown away that they were charging it in this way.

We were able to settle this in a different way.

Yeah.

But, I mean, they were, you know, the property charge.

The case law is super broad as far as what can happen from these fires as far as property goes.

I think that there's...

I think that there's...

The case law is definitely bad if the person sets...

Let's say they set...

There's a case, for example, where I think some kids set a pile of leaves on fire.

And then it spread to a nearby house.

And the case law is definitely bad where they could be charged, if I remember correctly, they could be charged with arson to an inhabited structure, even though all they had really meant to set on fire was the leaves.

But I think, in the case of the individual embers, I'd be surprised if convictions would withstand appellate scrutiny, at least, for multiple counts, if it was one act of an initial fire setting.

Because I think it would be a single act.

And so, under Penal Code Section 654, I think they would ultimately merge.

They would merge at the end.

At the end.

But, I mean, the amazing thing with all these cases is, you know, DAs can just charge this stuff however they want, you know?

So, ultimately, how it's going to get resolved in the end, you rarely find out.

Because sometimes, you know, we were able to settle it for what was originally, where the fire was originally burned.

And, but, you know, there was nothing stopping them from charging my guy with 16 counts, you know?

And it was just so much pressure.

Because you can imagine going in front of a jury and you've got, you know, one count of arson is crazy.

But you come in front of a jury with 16 counts of arson, the jury is going to be so freaked out.

It's almost like the, the charges just spread like wildfire when it comes to the DA's office, you know?

So, okay, so Mike, what was the facts?

That was a good one.

Mike, what were the facts of your case?

What did your guy, subsection D, what kind of debris are we talking about here?

We're talking about a palm tree.

Okay.

So, he was alleged to have set a palm tree on fire.

It was planted in the ground.

It was a living palm tree, planted alongside a strip mall.

It was a living, innocent, you know, didn't harm anybody palm tree.

So, was it, it was on the sidewalk, public property or private property?

It was on the grounds of the strip mall, but it was adjacent to the sidewalk.

So, basically, you know, the strip mall is on a corner and there's like a parking area.

On the corner, there's actually one building that's like, was a medical clinic.

And then there's kind of a parking area surrounding that.

And then on the opposite end of that parking lot are all the other stores.

So, it was basically like a little landscaped strip of land alongside the businesses.

A few palm trees, a little patch of grass, some bushes as part of the landscaping.

And my client was alleged to have set one of these palm trees on fire.

The fire spread up the palm tree and spread a little bit to a second palm tree.

And then it was put out by the fire department.

And exactly how does the police report read?

Your client walks up.

How does he light it on fire?

Who witnesses this?

Like, what's the...

Right.

So, initially, there was no known witness to the actual setting of the fire.

But there was a video.

The way it read in the police report is that police were called because...

Or 911 was called because the palm tree, there's a palm tree on fire.

So, the fire department came and then police came.

And they had been told that like a security guard for the strip mall was detaining someone who was a suspect.

And so, the police went into the parking area and my client is sitting there or standing again, leaning against the wall.

And this very young, like 18-year-old kid who was like a security guard for the strip mall is kind of just standing with him, just kind of watching him.

But my client's not trying to leave.

He's just standing there.

And so, the police come and they're told that he is the suspect.

But they're told by the security guard that someone else told the security guard that my client was the one who set it on fire.

So, initially, it's a lot of hearsay to connect my client to it.

But then they pull this footage from the back of the clinic and there's footage that's pretty clear.

It's kind of from above.

But it's pretty clear of what appears to be my client.

There's not like a clear shot of his face or anything like that.

But kind of wandering around in this little enclave behind the medical clinic, lighting a cigarette, smoking a cigarette.

And then with the lighter still in his hand, kind of wandering over to the palm tree and putting his hand up to it and flicking it.

And the palm tree just kind of catches and then kind of walks off.

So, no fire starter, nothing.

The palm tree just went up.

That's something that people have very different reactions to.

I'd say some people are very surprised that a palm tree would light that quickly.

And other people seem to know that palm trees actually are highly flammable.

What's your experience with that?

Well, my husband one time lit a firecracker.

And the firecracker lit up the palm tree.

And the fire department had to come in and put it out.

Wow.

Sounds like we got a real arsonist on our hands.

He was lighting firecrackers on July 4th.

Yeah.

So, I heard a lot in this trial about the dangers of fire near palm trees or lighting palm trees on fire.

There was a lot of testimony about how flammable they are and about those dangers because it can go up so high and then the flaming fronds can fall.

Yes.

Yeah.

So, I heard a lot about this.

Okay.

So, what happens next then?

This is what the police report says.

It shows your client with the video.

So, we got the video.

There was initially an issue in this case about whether that was -- that I was looking into about whether they could really identify that being him in the video.

And there was an issue with the clothing.

There was a weird discrepancy in the police report where they said he was wearing a long-sleeved shirt.

The person in the video was wearing a short-sleeved shirt.

So, and like I said, it kind of looked like him but you couldn't really see him that clearly because of the angle and the quality of the video.

You could tell the person definitely lit the fire.

That was clear.

There's not much question as to the conduct, it seems.

Right.

There was enough of a kind of a discrepancy about the clothing that I felt like I had a duty to look into that.

There.

So, what did you have to do to confirm that?

So, I had to have -- I had to get a court order letting us get access to his clothes in custody, to the property custodian.

Actually, you and I talked about that property custodian recently.

Well, that's right.

That's why I had contact with this guy was this case.

Oh, yeah.

Okay.

So, he was -- the LA Sheriff's Department property custodian at the jail is a very friendly guy.

He's very easy to work with.

I had -- I had saved an old email that had gone around on the office listserv with his information.

So, I had that somewhere and I called him and he was like, yeah, I just need a court order and then we can arrange a time.

And he was chill.

So --

The one helpful person at the jail.

Yeah.

Because he has the best job in the jail.

Yeah.

He just catalogs things.

He doesn't have to deal with people that are being difficult.

He doesn't have to deal with the guilt of, you know, having to be authoritarian towards a lot of mentally ill people.

Caging people.

Yeah.

Cages property.

Right.

He was -- I called him up.

He called me back right away.

He showed up to court when I asked him to like the next day.

He's great.

He was --

Reexamine our career trajectory, huh?

Right.

That's quite the job.

But that's a hard job to get.

There's like one guy.

One guy.

Like, you know, it's one of those highly specialized jobs.

Right.

Yeah.

A president.

Wonder where you have to --

Just to kind of complete --

Sure.

-- the story about the clothing.

So I -- I was looking into that because there was this discrepancy and I had to make sure,

you know, can they connect the dots and show that that's him or not or is that an issue?

And the clothing was a long-sleeved red shirt.

That's what he was wearing.

That's what the property custodian had for him.

So we got a court order giving us access to it.

I had an investigator coordinate with the guy from the jail.

They -- he brought it over.

My investigator photographed the clothes.

I got the photographs.

It was a long-sleeved shirt.

In the video, it looks like it's a short-sleeved shirt.

So I was like, oh, that's interesting.

But they're both red shirts.

So I -- I just became concerned, oh, it might just be that the shirt was rolled up

and you can't really tell in the video that the sleeves were rolled up.

So a long-sleeved shirt looked like a short-sleeved shirt.

And that turned out to be what it was.

When I eventually closed the trial, I was still thinking this might be an issue,

but I -- I didn't feel like good about that as a defense.

But I thought, you know, it was in my mind this could be an issue.

I need to at least still think about this.

But I got the body-worn video and there you see him at the time that the police roll up

and are arresting him and he clearly is wearing a shirt with the sleeves rolled up.

So at that point, it was clear the dots are all connected.

That's him.

They can -- they can probably establish clearly that that's him.

So that sort of became a non-issue right before trial

because that's -- I got the body-worn video kind of late in this case.

So what are you thinking then?

Like, your defense -- your possible okay defense is now sunk, really?

I'm sorry, it doesn't sound like it wasn't a great defense in the first place.

No, that was never a great defense.

It was more -- that was more of a due diligence kind of --

The shirt, people.

Look at the shirt.

Long sleeves, short sleeves.

We all know they're not the same.

Yeah.

Just a little bit of doubt.

Don't you have some doubt?

Because it's not guilty that there's doubt.

It's like the gloves.

The gloves.

Yeah.

That one worked.

The gloves.

That one did work though.

That's a success story for criminal defense in California.

That glove.

It's one of the -- one of the most unlikely success stories.

But you're no giant Cochran.

You're a badass pelvic defender.

So --

Yeah, it's not the same.

So, no, the real defense was the intent.

I mean, so --

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Thanks for listening.

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When did you realize that the intent was the real defense?

Approaching trial.

Okay.

And how does it develop?

I think it developed through -- initially through me reading up on the case law on arson

and understanding the intent requirement.

Because it's actually a very ambiguous intent requirement.

It's not a specific intent charge.

So, in California, as in, I think, nationwide, most charges are divided up into general intent

and specific intent.

And usually, if something's a specific intent charge, it means not only is there a certain

act required, but connected with that act, there's a certain intent to cause a certain

type of damage, to scare someone, some sort of intent connected to it.

Like the outcome, right?

You intend the bad outcome.

Yeah.

A certain outcome is intended.

Exactly.

And, you know, one thing I actually didn't know reading up on this is that the reason why

there's this division historically is because earlier in the 20th century, there was not a division

between general and specific intent.

General intent not requiring any sort of specific intent, basically.

Just being an act and just meaning to do something.

Not being sleepwalking.

Not some sort of --

Reflex.

Reflex.

But you mean to move in a certain way.

You throw a rock.

You mean to throw a rock.

Yeah.

Yeah.

And they don't have to show any intent besides the willful throwing of the rock itself.

You didn't intend to hit them, but you intended to throw the rock.

Right.

That's general intent.

That's general intent.

So -- but I learned when I was researching this in the context of arson that the division

comes from concern -- in the middle of the 20th century, concern that the courts had around what

to do with people who were drunk when they commit crimes.

And whether being drunk during the commission of a crime can be a defense or not to that crime.

So there wasn't a distinction between general and specific intent, but courts were concerned

or lawmakers were concerned, well, if someone's drunk, are they just as liable as otherwise?

And so they basically created this division in saying some classes of crimes were going

to let being drunk be a defense, and some classes were not going to let that be a defense.

Because everybody loves drinking.

And so, yeah, you know, sometimes when you're drunk, you're a little less liable.

That's --

Well, you're less -- the idea is you're less culpable, right?

Because it's less on purpose.

The alcohol is doing some of the work.

How many times have you made that phone call the next day?

Sorry, I was drunk.

I was drunk.

There we go.

I didn't mean to you.

I was drunk.

Right.

So the crimes that have now become defined as specific intent crimes, you can use the

fact that you got drunk as a defense to those crimes.

Or it's at least a legal defense that can be presented.

The jury doesn't have to buy it.

That's really sad that it didn't come from, you know, mental defects such as disease or,

you know, cognitive issues.

It wasn't because, oh, some people have trauma in their life or, you know, something that's

been diagnosed by a doctor that's a, you know, that's an issue, pyromaniacs or something.

No, it's because of our drunk friend, Bill, who, you know, lit something on fire.

Let's give him a break.

So arson's a little bit of a weird one.

It's kind of cop between general intent and specific intent.

There's case law that says it's not a specific intent crime, which means that you don't have

to prove, you know, any sort of specific mental state, but.

An intent to like burn property.

You just have to prove that you intended to create a fire.

Yes.

You intended to set a fire or just to cause a fire.

But then there's other case law.

And in fact, the jury instructions say, you know, it has to be malicious.

I mean, I think that's in the statute has to be malicious.

And then so maliciousness is defined as a specific mental state, but not a specific intent.

Yeah.

It can't be.

I, you know, I intended to make a fire by loading everything into my barbecue.

Right.

Yeah.

And then something happens.

That's not arson.

Right.

Right.

What's going on with your client here?

I mean, he just goes up to a palm tree.

We, you know, I think we're, we're so used to this.

We kind of just dive right into the case, but.

Well, uh, so he did end up testifying in the case.

So I'm, you know, some conversations I had with him, I might not be comfortable going

into, but certain things that he testified to in open court.

I'm of course happy to talk about that in this context.

Um, and he was, he was homeless.

He was homeless.

He hadn't been homeless for very long.

He'd come up, he'd hit on hard times.

He'd been homeless for, I think he said 40 days.

Um, and he hadn't been eating much.

He hadn't, uh, he said he hadn't had much water that day.

He hadn't been sleeping at all.

Cause he was scared sleeping on the street.

Um, so let's talk about, let's get to the trial then.

Cause I feel like, I mean, we're there, right?

The trial is about to start.

Uh, you've looked at the video.

You've maybe looked into some issues for your client.

Nothing really came of it.

That the shirt, the property, and now it's time to start trial.

Right.

Is that where we're at?

Yeah, pretty much.

Um, yeah, we, no counteroffer on your part.

Was your client willing to accept?

Well, right before trial, uh, when they got assigned to a trial DA.

So there's a DA who handles the case all through pre-trial appearances, status conferences.

Um, and then once it gets set for trial, it gets handed off to one of these, one in the, one of the fleet of the younger DAs who were there to try cases.

Um, so when she came in, uh, the DA who I worked in this case was very pleasant to work with, very good to work with, very, uh, you know, struck me as very ethical.

Um, she did, we did engage in some plea negotiations and she, and she ended up getting an offer approved through her boss that was in some ways a very good offer.

Uh, because I, you know, I'd indicate, look, you know, we're not comfortable with this arson charge.

And, um, she ended up coming to me with an offer for, uh, felony vandalism, which is a significantly less serious charge, at least cosmetically.

At least cosmetically.

And it's a non-strike.

But they wanted prison time.

But they wanted prison time.

Oh, wow.

How much prison time?

They wanted to max him out.

They wanted three years of prison?

Three years if he, to give him the non-strike vandalism.

And if he, and if he took an arson charge, did they want prison time?

If he said he was guilty of arson?

Yeah, they, they, um, or he could do the arson at the low term, which given his credits at that point would mean he would do another few months actual.

16 months low term.

They also wanted him to waive his credits so he wouldn't get credit for the time he'd served already.

So it would be a three year sentence to be served at half.

So it'd be a year and a half actually to serve, but a year and a half from that date.

So the four or five months he already had in is like dead time.

I hate that.

That's so messed up.

That was a real sticking point for my client because he was almost going to take the vandalism.

But he got very upset about the idea of not getting credit for the time he'd been in.

Yeah, he's been sitting in custody for five months waiting for this to all get sorted out.

Mm hmm.

And now you're saying, hey, that five months, you don't get any credit for that.

Yeah, that's not right.

It's just psychologically really difficult to deal with, too, for anybody.

Then they even ended up a little later, right before trial, they ended up, I think, offering the vandalism at midterm, but still wanting him to waive his credits.

It was just just like horse trading.

It was dumb.

And it's like, what are we doing?

It's it feels it feels like what's the principle behind it there?

Why are we?

I think principle is an interesting word to use at this point, because notice nobody is discussing this man's been living on the street.

He has physical and mental health issues.

Nobody's discussing at all how to remedy this problem and change this so that this doesn't happen again.

Everybody's just saying in a, you know, year and a half to three years, we're OK with just letting him out back on the street without any sort of game plan here.

And so what is the principle behind any of this?

Really, I guess it's just to punish him for what happened and move on.

All right.

So you get sound to a to a judge, right?

Yeah, I got sent back to my home court.

And any 402 motions motions to limit evidence?

Yeah. So right before trial, the D.A.'s office decides they're going to add arson to forest land, which is the the sub C subsection C, which is a more serious version of arson.

So they're just upping the penalty. They're just making it.

Yeah. It goes from a three year max to a six year max.

If you're convicted of arson to forest land, the maximum sentence is six years and it's for the same act.

So it's alternative charges for the same thing. It wasn't two incidents.

So the day, you know, the day before they say, hey, we'll give him 16 months.

Oh, you don't want it. Let's go to trial. Your max is now six years is what we're looking at.

It felt kind of punitive.

Like I said, the D.A. who I was actually working with in trial, I had a good experience with.

And she told me that in preparing the case, because she just got handed the case, she had consulted with their internal arson unit and was told that that she should add this arson to forest land charge, that that's their.

I don't know if she said that's their policy, but she said, that's, you know, what we do when there's a tree involved.

I think that's what she said.

There's no forest. No forest. This is a strip mall, people. This is a strip mall.

She so actually the the police report, which was a fire department arson investigation reporter.

It's not a police report. It's a fire department report in this case.

They they had the charge listed actually as arson of forest land.

So that was that was in there as an idea from the very beginning in this case.

Initially, the D.A.'s office seemed to have sensibly rejected that and charged it just as arson of property.

But then on the eve of trial, they they went back to the forest land idea.

So they added that. So for. Yeah.

So it's my front yard. Right.

I know you're I know there's a big difference.

Your bushes. Yeah.

My roses. Agave and a couple herbs.

So, yeah, I filed a written motion.

I filed a written opposition to them amending the information in this way, saying that this wasn't proven up at the preliminary hearing.

So they can't add something to a felony information if the evidence at the preliminary hearing that was held near the beginning of the case didn't support that.

And the testimony about the area was that it was a palm tree.

It spread a little bit to a second palm tree.

So there's at least two palm trees near each other.

And that the palm tree was on.

I think it was it said there was some grass there.

I think that that was the extent.

But it also said, you know, it's a medical clinic.

There's a parking lot.

It's, you know, in the middle of L.A.

It's a strip mall.

Yeah.

So what's the definition for a forest?

And did you look that up?

I sure did.

So it's actually forced land is the is the term.

And this the statute says it's any if there's like five categories.

It's any brush covered land, cut over land, forest, woods or grasslands.

Those are the five.

And it's not maybe not in that order.

But you had grass here.

So you're in trouble.

Grassland.

Grasslands.

Yeah.

So there's one case as far as I could find.

There's one case that goes into this with any, you know, with any depth.

And in that case, it was a it's pretty recent.

It's from just a couple of years ago.

It was a horrible case.

It was a murder case out in San Bernardino.

I think near Redlands.

But some guy killed someone else and then like brought the body out to the side of the freeway somewhere out there.

Like not, you know, in a rural area where there's not a city and kind of just drove out a little bit next to the freeway and dumped the body and tried to burn it.

And so in addition to the murder, he was charged with arson to forest land.

He was convicted of both.

He was appealing the arson of forest land or at least that's the only appeal that went up and up to be put or got published.

And the court was analyzing whether that was a forest land because it was just kind of a it was an undeveloped kind of bare swath of land near the freeway, little weeds and plants.

And the court found that that did qualify as forest land.

It qualified as brush covered land.

And so they looked up what brushes and brushes like scrubs and like little stunted plants, stunted trees and bushes.

And they said, well, this is this land from the pictures that were admitted in that case has little weeds.

It's mostly bare, but there's little weeds and stuff.

So they said that's brush covered land.

So that was forest land.

That's very different from what we had in my case.

Yeah.

Yeah.

Did they discuss strip malls and sidewalks in that case?

I mean, they emphasized it was undeveloped land.

So that was something I relied on.

And and then I basically they had gone to the dictionary to define brush covered land because the statute just says brush covered land and doesn't go further.

So in that case, they'd gone to Merriam Webster's dictionary.

So I went to Merriam Webster's dictionary for each of those five terms and said, well, you know, we know the Court of Appeals goes to the dictionary for this.

They did it in this case.

Let's go to the dictionary for the other terms.

Define all of them the way you would out of the dictionary and apply it to what we have here.

And brush covered land is land covered with scrubs, bushes, stunted trees.

Grass land is land covered with grasses and herbs or herbs.

And just so you guys know, Mike's an English major.

This is some serious.

This is some serious lawyering right here.

I've been impressed.

That's why every stage every day I get to learn something new.

But it would almost mean that every neighborhood is a forest because there's a tree and there's grass.

Exactly.

I think the D.A. actually made the argument both in front of the judge when we were arguing about whether they could add the charge and then ultimately in front of the jury that, you know, forests are made of trees and this is a tree.

Here we go.

I mean, I found it ridiculous.

You must have been loving that.

Yeah.

You're hearing that during trial.

You're like, this is great.

Wait till you hear what I have to say, jury.

Yeah.

So then there's what there's cut over land is the only.

That's the word.

I didn't really know what that meant at first, but it means like where it's deforested land.

Been logged.

Been logged.

Exactly.

Been cut over.

And then woods and forest forest is large area densely covered with trees.

Woods is a slightly smaller area densely covered with trees.

So, yeah, I mean, ultimately, in my closing, I put up pictures of real forests, real grassland and Sherwood forest next to pictures of.

Yeah.

Next to pictures of this strip mall, you know, and just like a parking lot.

No, this is a judge.

So the judge allowed this charge.

The judge did not want to go by the dictionary definitions.

I.

Yeah, I strongly disagreed with this ruling.

The judge looked at that one case.

The judge agreed to me that was really the only case.

And she read the case differently than I did.

I think the way she read the case was it doesn't have to strictly be a forest.

Right.

It's like that the the land at issue in that horrible murder case out near Redlands.

That land wasn't a forest in the kind of colloquial sense that we would talk about a forest in conversation.

So she that was one thing she took from that case is like it's not strictly forests and the court makes that clear.

And that's fair enough.

That part's fair enough.

But then she said, well, you know, this is there's a couple trees.

There's grass.

So, you know, there's facts that can go to a jury on this.

I think that's how she felt.

It doesn't have to strictly be a forest.

There's the facts that can go to a jury.

And I felt I felt like how do you feel about that?

That's ridiculous.

If there was a third palm tree, then you might be able to say it's a forest, but two palm trees.

There was a third, although I'm not sure if that was the prelim.

I'm not sure if that was at the prelim.

The third there was.

It was actually three palm trees in a row.

But I'm not sure that came out at the prelim.

I don't.

I think the prelim may have just said the two, but I'm not sure.

I mean, a judge has got to make a call at some point.

And I guess this is something that really like it's a big frustration with public defenders.

It's just like, judge, come on, make a call at some point.

I think you can make the call that a palm tree next to a strip mall in L.A. next to some grass is not a forest.

And if the judges don't make that call, you could imagine what calls they do want to make, which is they just don't.

They don't want to make any calls.

They really don't.

It makes no sense.

So she let it in.

She felt like there was enough for the jury to make that decision.

She I mean, she you know, she certainly said the jury could find that this is not a forest lamb, but I think it goes to the jury.

OK, so you lose that issue, which is fine.

You're a public defender.

Ain't nothing.

I roll with it.

I mean, honestly, what I was doing at that point, as soon as that was coming in, what I was thinking is, how do I use this against the D.A.?

They're they're bringing in a charge now that has a degree of ridiculousness to it.

And so I need to use this against them.

They want to they want to try to get the six years.

They're going to pay for that extra that trying too hard.

So.

So at that point, I'm starting to think.

And then, you know, this comes out ultimately really in my it comes out a little bit in cross examination, because I have a couple of fun questions to ask some of the witnesses.

But mostly it comes out in closing is that, you know, I can use it against them that they're why are they coming at my client so so aggressively?

Like, look how ridiculous.

Look how unreasonable they are.

Yeah.

Yeah.

Yeah.

What's up, A and Gers?

At this time, I want to thank and give a special shout out to A and G's newest members of our Patreon program, Jamie and Justin Smith.

Jamie and Justin, I also want to thank you for your military service.

Your sacrifice ensures that we public defenders are able to fight to preserve our clients freedoms and rights and that A and G is able to exercise our freedom of speech in sharing our message.

If you, too, would like to become a member of our Patreon program, please visit our website at another not guilty pod pod dot com.

Thank you.

Any other interesting 402 or preach pre litigation stuff.

So right before trial, I got these maybe a few days before trial.

The first day that I met the I think it was maybe the first day I met the new D.A. on the case, the one who's actually going to try the case.

And she also gives me 911 calls that hadn't been turned over.

And a couple of days after that, she alerts me that she's gotten in touch with the 911 caller who is this eyewitness who we never knew anything about until this moment.

So basically, there was this guy, it turns out, and you do see him on the video who was walking by right when my client was at the tree.

And he's the one who called 911.

He actually made two calls to 911.

He first called and talked to the fire department and told them that this tree was on fire.

And then a few minutes later, he called back and said, I see where the guy is.

You should send police.

So he called once for the fire department.

He called once for the police department.

And then he left because he was he had somewhere to go.

So he didn't stick around.

So when the police showed up, he's not there.

They never take down his information.

So he's not mentioned anywhere in the report.

But once the D.A. got this 911 call and I had, you know, asked for video and everything before.

I'm not sure it was clear to me that there was a 911 call because it wasn't like I said, it wasn't a police report.

It was a fire department report.

And those are just written a little differently.

So I'm not sure it actually said in there that there was a 911 caller.

So I'm not sure it was clear to me that there had been a call.

And so I had asked for video, you know, I'd gotten the surveillance video.

I always ask for audio video.

But this just came late.

For some reason, they didn't get it.

And I think it had something to do with the fact that I know my calendar D.A. was a little puzzled with this case.

Because who does he go to for discovery, the fire department or the police department?

Who's maintaining the evidence in this case?

Because both agencies were involved.

And it's a calendar D.A.

So they can only ask one.

They can't do two things and ask both.

I mean, you know, they're there.

They're there.

They're ready to retire any second now.

And that's the norm of their it's too much.

Yeah.

Break after that.

For whatever reason, I got it at the last minute.

And then she she obviously listens to it.

I'm listening to it.

This guy appears to be an eyewitness and he gives his phone number in one of these recordings.

So she got in touch with him and she alerts me, you know, a couple of days before trial.

You know, I we have this witness.

I think we're going to you know, he's cooperative.

We're going to call him.

So that's you know, that changes the look of the case a little bit.

I'm not sure it really changes my defense at all.

I called the guy right away.

I you know, she she gave me his number and his name because she had just talked to him.

So I called him and he was real cooperative.

And he said, yeah, he was walking by.

He works at the school nearby and he was walking to the train line and he walked right by and he saw my client.

And at first I was kind of interested in what his angle was or how much did he see.

And what I really needed to get to here was, is this guy going to hurt me or help me on the intent issue?

Like what was my client's behavior like around the time the fire got set?

Is it going to is he going to make it seem like it was real deliberate or calculated or is it going to seem opposite?

So what does he say that?

I mean, he says he sees my client light the fire.

And when I asked him, what was my client's demeanor like?

He says, well, he was he seemed like he was maybe under the influence of something or mentally ill, which I liked for my defense.

That's good. Yeah.

I said, well, why, you know, can you tell me why?

He said, well, just the way he was acting, just the way he was behaving.

And I yelled at him like when I saw the fire catch, I went up and I was like, what are you doing, man?

What are you an idiot?

And this guy's very confident, outspoken guy, this witness.

So he said he went right up to my client was like yelling at him.

What are you doing?

He said my client didn't respond to him like in a normal way.

He didn't like start back or yell back or he just kind of stared at him and turned and kind of just walked off.

Wow. So he had like a flat affect.

Yeah.

Just not just like, wow.

Yeah. OK.

And then he the other thing he said he thought was strange was that he didn't stay to watch the fire.

So he didn't have like a voyeuristic interest in the fire, but he also didn't like leave the area.

My client just wandered around the medical clinic into the parking lot of the strip mall and then just sat down against one of the buildings in the strip mall and just sat there.

So he was near.

He was nearby.

He wasn't trying to get away, but he also wasn't like watching the fire.

So the guy the guy thought that that seemed strange, too.

And then I asked him.

And this is something that you and I talked about at one point.

I asked him because he was he said a couple of times he thought he might be mentally ill.

And I said, why did you think that?

And he told me, well, you know, I have experience working with mentally ill people.

He's he's a counselor at a school.

And he said he used to work in a psychiatric facility for a few years a while back.

As he said a counselor in a psychiatric facility or.

Yeah.

No, I think.

No, no, I think it was.

He had a counselor position.

OK, so.

You know, I was I was wondering if I might even be able to kind of qualify him as some sort of expert or something.

But I ended up not.

We talked about it.

I talked about it.

I ended up not really going there with him in trial because in trial he gave me some of those things that I needed.

He gave me the kind of flat affect, although the he blunted that a little bit at trial in a way he didn't over the phone, which is that he said.

But I realized later that he didn't speak English and I don't know if maybe his the fact that he didn't respond to me is because he didn't understand what I was saying.

So he kind of blunted it a little bit, but he basically gave it to me.

And then I tried to get him to explicate those things on cross-examination because I wanted more about that.

And he kind of he kind of wouldn't go into any more detail.

He didn't really have anything more to say.

So I didn't want to qualify him or, you know, try to just qualify him on the fly as an expert unexpectedly to the DA and the judge because I didn't know how much he'd even give me.

And I thought it might end up looking foolish a little bit.

You're going to start getting objections from the DA.

You're going to have to go to chambers and discuss this.

It could totally change the vibe that you're creating.

And I didn't know what more it was going to get me even at that point.

So I thought it might not be worth the.

That's really great.

This witness turned out to be.

And I did get the guy.

I mean, the guy did say it seemed to me like he might have mental illness or be under the influence of something.

So, you know, he wasn't an expert on that.

But at least those kind of words and ideas were floated in front of the jury.

So then you you kind of just hold on to this piece of information from the witness, right?

And you don't have to turn it over to the DA because the DA is going to call this witness.

He's not my witness.

He's not your witness.

You don't have to give this extra information.

The law.

Yeah, the law in this area basically says you have to turn over statements from witnesses that you intend to call as a witness.

But this wasn't my witness.

So I could just hold on to it and think about how I might use it to cross examine him.

And so then the trial proceeds, right?

You have opening statements.

Well, let's talk about jury selection.

How was how was jury selection?

Jury selection was fine in this case.

I got a jury I was happy with.

I was able to kick the jurors.

I didn't want.

I would say I was basically looking for I wanted some I wanted some sophisticated jurors because this mental state argument is a little subtle because it's not clearly defined in the law.

It's like a little bit of a gray area.

So, you know, you want some I felt like you want some smart jurors who are going to be able to who you have confidence are going to be able to understand that.

Connect the connect the dots.

Yeah.

You explicitly saying it.

Yeah.

Just worried that even if you know, even if I do my best to explain it, it's just a muddy thing and it might be confusing to people.

And so I just you know, you want to I felt like you wanted.

I wanted to have a couple of like where there's some seemed well educated who could maybe understand that gray area.

Was there some arson mental health water questions you had specific for this case as opposed to just just the usual burden of proof and presumption of innocence.

Yeah, I yeah, I actually I was limited a little bit because the D.A. anticipated it and didn't want me, you know, didn't want us to be bringing up mental health.

So the but the judge let me voir dire on it.

What what did the D.A. argue she so she did a 402 then right to limit you voir during our mental health or bringing it up at all during the trial.

Yeah, but then she ended up voir dire on it, too, because the judge had she didn't want me to bring up mental health at all in the trial.

And the judge said that, you know, she thought it was fair to bring up in dish that might be in dish of mental health.

She said, you know, we don't have an expert on mental health as far as I'm aware.

That's what the judge said, which was true, except for this guy who could have maybe been but wasn't in the end.

She said we don't have an expert on mental health.

So, you know, you can't ask any witnesses specifically about mental illness or diagnoses or any specific mental illness.

But you can certainly ask about things that appear maybe to be indicative of mental state problems with mental state because there is this mental state requirement.

And so because she was going to let some of those things in, then the D.A. ended up, I think, if I remember correctly, voir direing herself on mental illness because I think she became worried about that as as an issue because she knew it was going to come in in some form.

And did you have any issues with arson in general?

Were there were there people on the jury that, you know, gave some answers that were a bit startling or.

We had a we had a guy who was like studying to be a firefighter or, you know, he had been a firefighter and he was studying to be.

He was like studying fire, like how far like to be an arson expert or a fire expert.

And so he had a lot of opinions on this stuff.

He obviously knew a lot of people who had fought fires, who had worked in that area.

He'd he'd known he had friends who had died fighting fires.

So, yeah, he was he was not a witness, a juror I wanted on on the jury just because he had too much personal connection to these issues.

There was another guy who had who who kind of had similar issues.

He worked in he was like a landscaper and worked primarily in the in the area in the valley that was damaged recently in in fire by fire.

So a lot of the area where he worked had been destroyed by fire.

And so he felt strongly about it, too.

So, yeah, in California these days, there are people around who have personal connections to fire related tragedy.

And so you feelings.

So you had to kick them then.

You had to kick some fools off the jury.

You had to kick them for sure.

They were not the right jurors for this case.

Who is who is the D.A. trying to get rid of if you got a sense of that?

What I observed was she was kicking people who seemed like they were maybe going to be too sympathetic to someone who's homeless and mentally ill.

There was a there was a woman, for example, who worked at a like a mental health services provider.

I think she was like an administrative assistant, but at an organization that does mental health services.

And she she was a potential alternate juror right at the end of jury selection.

But when sometimes, as you guys know, at the end of jury selection, the judge has asked you to agree on two alternates rather than doing the formal kicking.

And when we were discussing the possible alternates, that was one she couldn't agree on.

And I think the main reason is because of her.

She seemed to have sympathies around the issue of homelessness, mental illness.

The other type of juror I wanted.

And there was one guy in particular I kept for this reason is someone who seemed like a slightly immature goofball because maybe they've accidentally set a fire at some point.

So there was one juror who just seemed like kind of like a good natured doofus.

That could have been.

That guy's my guy.

That could have been me.

That could have been me.

Just play with lighters.

Exactly.

But yeah, jury selection went fine.

I got a jury that I was happy with.

Right.

So it seems like you guys got did your jobs, got got rid of the people that are on the extremes and just got the people in the middle.

It seems like.

Right.

Yeah.

All right.

And then and then how do opening statements go?

Opening was fine.

It wasn't the type of opening I really like to do when possible.

I like to do strong openings that tell a story.

This was really like I'm just going to be attacking the mental state.

And I didn't want to give away too much of that in my opening.

I was a little concerned with that because that's really all I had.

And my opening was structured around you're not going to, you know, the issue here is not whether there was a fire.

The issue here isn't even who was responsible for that fire.

The issue is, was there an arson?

They've charged the crime of arson.

And that has a specific definition.

The judge is going to give you that law later in the trial.

And the issue is not is someone responsible for fire.

But did someone commit the crime of arson?

And so keep an open mind.

Listen to all the evidence.

Wait until you hear the law.

You know, it was it was kind of structured around that.

It's not not my favorite opening that I've ever given, but I think it was it worked fine for this case.

And so then how's the evidence roll out for the D.A.?

The D.A. presented a lot of evidence in this case.

An unnecessary amount of evidence?

I thought so.

The video.

It's she called seven witnesses.

There's the eye the eyewitness.

There was the security guard.

The eyewitness mean the 911 caller.

Correct.

OK.

And that came out pretty well.

I did not try to qualify him as an extra, but I got those facts about my client's unusual behavior out of him.

So you got the flat effect.

You get the fact that the guy walks around the corner and sits down.

You got those good facts.

Exactly.

And I got that.

The witness also even said, I suspect a mental illness, you know.

So I got those words.

He said that.

He said it.

He's like he's like it seemed like he was maybe mentally ill or under the influence or something.

So he said those two.

But I got that out there.

Yeah.

That's all you need.

Yeah.

So the D.A. put on this witness, this eyewitness, a security guard.

Yeah.

He put on two other staff members of the strip mall.

He put on like a property manager for the strip mall.

And then I think he put on some sort of property manager for the medical clinic.

What are they proving?

What's their relevance?

They didn't give permission for him to light a fire.

Yeah.

So they kind of have to do that, I suppose.

The eyewitness testified that he saw my client walk around and sit down and that he needed to leave.

But he notified someone at this construction crew.

One of the there was a Panda Express at the strip mall that was under construction as being remodeled.

So he said he notified one of the construction guys at the Panda Express.

Hey, watch that guy.

The police are coming.

But then he left.

So then the strip mall manager testifies that he was told that guy's the guy who started the fire.

And he told the security guard.

Oh, brother.

Watch that guy while the police come.

And then they, you know, they had him testify to the, you know, the palm tree wasn't damaged before.

You know, this damage was from the fire.

The one really good thing I got out of the manager of the strip mall is that actually it came out on direct.

That he's the manager of a strip mall and not a forest?

And not a forest.

Well, I said, you're not a park ranger, are you?

Yeah, that's what I asked.

You're a manager of a strip mall.

What kind of hat do you wear?

Did you have to pay money to get in here?

What kind of hat do you wear to work?

Yeah.

Is entrance free?

His English was a little, I mean, he spoke fluent English, but his English was a, had some weakness in it here and there.

And I asked him on cross, I said, is it, is this, is this property, is it located in a forest?

And he didn't understand.

I mean, like he was confused by the question.

I think he thought he misheard me.

He was like, what?

I was like, like a forest.

Is it in a forest?

He goes, what do you mean?

Palm trees.

He's like, oh yeah.

Okay.

A forest.

Yeah.

I was like, is this in a forest?

He goes, no.

So that was good.

He also testified on direct that she had asked him how long of the, do you know how long the palm trees had been there?

She, she put in a lot of context, way more context than she needed in this truck.

Anyway, he said, yeah, I was there when they were planted.

I supervised them being planted like 20 years ago.

This guy's been managing the strip mall for a long time.

Um, and I thought that was a really helpful fact that I brought up in closing.

Cause it's not even like these palm trees were there naturally in the mall was built around them.

It's like they were landscaped in, you know?

Landscape.

Yeah.

So I thought that was a helpful fact actually for the forest land.

So in putting up all these witnesses, what was the DA's game plan and putting up all these witnesses?

Was she trying to, uh, I don't know, sort of get sympathy on her side a little bit.

Usually when I see a DA putting up a lot of different people, they just want every single person to say how scared they were and, and how traumatic this was to them so that the jury is sort of like, wow, look at all these people that were hurt.

Was that kind of what she was doing with this?

Yeah, I think it was overkill, especially.

So she called, um, there was, she called the fire department arson investigator and that made sense to call him cause he's, you know, the one who wrote the report, but she also called the, the fire department captain who was like the captain of the crew that responded and put out the fire.

And she had him on the stand for quite a while talking about firefighting techniques, talking about the way that fire catches in the fibers of palm trees, talking about the way, um, the, the, the use of the foam.

There was a lot of talk about the foam they used to put out this fire and why foam is necessary when there's a palm tree and why palm trees cause special challenges.

I mean, at one point she even had him talking about the different size, the different gauge gauge hose, like the gauge sizes on the different hoses they use.

And, and he, and the different promotional exams he's had to take to get to the position he's at now in the fire department.

It just seemed like there was so much like building up the fire department and building up the importance of this, of putting out this fire and the dangers of this fire.

And it just seemed like it was a waste of time.

And you didn't object to any, any of these witnesses or the, the fire captain, I objected at a certain point.

I let her go on for a while.

I mean, that went on for a while.

So I wouldn't go on for a while and then I objected and said, you know, three 52 overly consuming the jury's time.

And we always win those ones, huh?

We always win three 52.

And that was not sustained.

And then actually the DA got upset.

She was mad at me.

And when we broke, she seemed, she seemed very mad.

She said, I would ask the judge to instruct defense counsel, not to state in front of the jury that my evidence is wasting their time.

He can simply state three 52.

So she was mad about that.

So, all right.

Did you put, did you put on the case at all?

Um, I called my client.

And how'd that go?

That was, so there, around this point in the trial, there were two main strategic decisions that were probably the, that's sort of strategic linchpins of the case.

One is putting on my client and I'd been planning to do that for a while, but obviously you never make the final decision until it's time.

It's go time.

Um, and I was, I was concerned about it on the one hand, because like I said, he's kind of a little loopy and cranky.

Um, and can seem agitated quickly sometimes when I talked to him.

And so I was concerned about how he would come off and whether the jury might dislike him or be afraid of him.

Yeah.

Yeah.

That would be the worst thing that could possibly happen.

Yeah.

So I was worried about that.

And I did, you know, I worked with him and kind of explained how the process would work.

He would have some familiarity with what was happening when it was happening.

Um, but I was worried about it.

But on the other hand, what I thought is, if he does come off a little loopy, that supports my, my defense here.

And so having them actually see and hear from him and see that he's, something's off about him, I thought would help me make the argument.

So ultimately, and, and he had, he had good things to say.

I knew he had good things to say about, I never thought the palm tree would catch on fire.

I was just messing around.

I didn't realize I never meant to set the fire, you know, so he had good things to say.

And the jury could see that he's a little strange, which would support office rocker.

Yeah.

Did you ask him about going and sitting down around the corner?

Yeah.

He said he, um, he wasn't, he said he wasn't trying to get away.

He didn't, he wasn't trying to get away.

He was, he was waiting for the police to show up.

He said he knew what he, he re afterwards.

He realized what he'd done.

I mean, he saw the fire spread.

He said it spread very quickly.

He was just like messing around.

He'd never thought it would catch on fire and it spread very quickly, which it did.

If you see the video, that's correct.

And so he, he left, he didn't know how to put it out.

He left and he just sat down to wait for law enforcement to show up.

Okay.

And, um, now it's time for closing arguments, right?

Right.

The other thing that's happened at this point is that I have asked the judge, I asked the

judge for the lesser included instruction on reckless fire setting.

So that this was the other, this was something I wrestled with a little bit.

Um, we had started talking about what the jury instructions were going to be.

And, um, the DA had not in their proposed jury instructions had not included, um, any lesser

included instruction.

So it was just arson and, um, the two, the two types of arson.

So the DA and her thoroughness left out the lesser included, huh?

She did.

And it might've been on purpose.

Maybe they didn't want it on there.

They didn't want to give that jury that option.

And then I, the judge, I think the judge missed it too initially because I think we had had

a draft from the judge based on the DA's proposed and she hadn't added it.

But, you know, I realized this is a lesser included.

It's supposed to be, the judge is supposed to include it.

Sua Sponte.

She's supposed to include it on her own.

And a lesser included is, I know we've talked about it earlier in the show, but pretty

much if you don't find this person guilty of the heavier charge, you know, maybe it wasn't

intentional of this, but maybe you can find them still guilty of the lesser included of

recklessness.

Right.

Like a common example would be, uh, in another, in another context would be if a charge is

assault likely to cause great bodily injury.

Um, a lesser included would just be normal assault, simple assault without the great bodily

injury.

So the jury's like, well, yeah, we think he hit the guy, but we don't think it was in a

manner that was going to cause a serious injury.

So we're finding him guilty of the lesser included.

And so here the lesser included charges the reckless fire setting, which also requires causing

a fire, but recklessly instead of maliciously.

And reckless is, is where you should be aware.

A reasonable person would be aware of the danger of a fire and you disregarded that danger

basically.

Um, malicious is intending to do the wrongful act.

Um, so how was the conversation with the judge?

Then they, you got the judge to add it.

Then as soon as I submitted my, I submitted a written request for it, citing the case law,

that it's a lesser included and the judge has to include it.

And soon she agreed.

Once she saw it, she came out and she said, uh, yeah, I have to, I have to include this.

I think I have to include this.

So just saying to the DA it's coming, I'm going to add it.

Uh, but I had wrestled a little bit with whether to ask for it.

Cause it seemed like I could have let it slip by.

Um, it could have been an appealable issue if he had been found guilty.

If she hadn't, if the judge hadn't included it, since it's a sui sponte duty of the judge,

not including it could have been some sort of appealable issue.

And I also, I felt like even though I knew that in some ways this was a tough case cause this fire was set and he was on video.

I also was feeling some good momentum in the case.

So part of me wanted to go all or nothing a little bit and just be like full exoneration.

Yeah. Let's just get it.

But the more I thought about it and I, you know, I, I talked about this idea a little bit with some people.

And the more I thought about it, I was like, there wasn't fire.

I mean, it's, it's undisputed that this guy was responsible for this fire.

And so giving the jurors and all or nothing proposition, they might just feel uncomfortable letting him go with nothing.

And putting that lesser on there gives them a safe, gives us a safety valve, uh, option.

And so in the end I just was like, I want it on there because I just didn't have enough confidence that we would beat it straight up without that.

He avoids prison.

He avoids a felony strike on his record.

Yeah.

It's a misdemeanor with a six month.

It's a six month match, which he had time served for at that point.

Cause it's, you'd serve half of that.

And he had like four or five months.

And that was the ultimate verdict, right?

That was the ultimate verdict.

So I talked to my client.

That was my decision.

I talked to my client and then I submitted the paperwork.

Um, and then the judge said, yeah, we have to include this.

So that was, I mean, that was, I think the saving grace cause the jury returned a verdict pretty quickly.

I was going to say long deliberation, pretty fast.

It was pretty quick.

Yeah.

It was about half an hour at the end of the day and then maybe 45 minutes or something like that in the morning.

Um, I mean, it wasn't like a 20 minute verdict, but it was a pretty quick verdict.

And 20 minute verdict shouldn't exist.

Yeah.

Great.

Great.

Cause you're supposed to read these instructions.

You're supposed to select the four person.

Everybody should be able to talk.

Yeah.

So I think that they probably felt like that.

That's the appropriate charge.

And I didn't concede the, I didn't concede the lesser in my closing, but I kind of pointed them that way a little bit.

When I talked about the lesser included, I said, look, I don't even think they've proven this.

And here's why.

And I, you know, I gave a brief explanation why I don't even think it was recklessness, but I'll grant you, it's a lot closer to the, to recklessness.

Then it is to mallet.

Well, what's the argument for why it's not reckless.

You put a fire underneath something that can catch fire.

That's kind of reckless, right?

Based on his testimony, what he indicated that he was aware of or thought he wasn't aware of the necessary facts based on his testimony.

I don't know.

I wouldn't think that the palm tree would go up like that.

Seriously.

Like that's, that's really something.

If I was on a jury, I would probably consider like, did anybody else know that if you had a lighter that a palm tree would just go up like that?

I mean, try to start campfires.

I'm trying to purposefully start a fire with wood.

Sometimes that's dry.

It takes hours, you know?

So that's just surprising to me.

But that's, that's a really good lawyering, Mike, just in general.

Thank you.

The whole way.

Sounds like you're really on top of everything.

That, yeah, it was, um, thank you.

Uh, it was, it was very satisfying.

Uh, I, I was, you know, part of me wanted to just go for the straight.

I'm not guilty, but I just felt like this was the right, this was the right strategic move.

And he, yeah, he was out the same day.

All right.

I think, uh, I think we're there.

So, so Mike, uh, why did you want to become a public defender?

Uh, I had an experience, uh, I just, my, my path to being a public defender is pretty specific.

I had an experience.

I spent one night in jail, um, uh, shortly before law school, uh, on like a, I had broken

up with my girlfriend of many, many years and I got too drunk and I was sad and I got too

drunk and some, some, I was in the, I was in South Carolina.

How old were you at this time?

27, 26, 27.

Um, I was just, I was like on a road trip and I was staying with some people I'd met

there.

Um, it was like kind of in Myrtle beach area.

So it's like a party area.

And I just gone out with these people who I didn't know that well, who I was like crashing

with, who I'd met.

And, um, uh, I had too much to drink.

I don't, I don't drink very much.

And I'd had too much to drink that night.

So I was out with people who I didn't know that well.

And it was that kind of scene and I was in a bad place, state of mind.

So anyway, I ended up in jail and I spent one night in jail and it was very scary.

This was shortly before I was going to law school.

And then I went to law school.

I had gone to law school thinking I was going to go for entertainment locks.

I'd worked in music business a little bit before law school.

So I thought I would do entertainment law.

And that sort of seemed boring to me when I started exploring it in law school.

And I went the, my, at my law school, there was like a, or at the school, at the university, there was like a, a movie theater that played old movies.

And they were playing this old movie.

Uh, it's a great old movie called Sullivan's Travels.

It's an old Preston Sturges movie.

It's like a classic kind of Hollywood comedy.

And I went and saw this movie.

It's actually the movie where the, the phrase Oh Brother Where Art Thou comes from.

That, that Coen Brothers movie is from.

There's a filmmaker in that, in this movie Sullivan's Travels who's making a movie called Oh Brother Where Art Thou.

That's where that title comes from.

In this movie, there's a, there's a sequence where the main character is wrongfully imprisoned.

He gets mistaken for someone.

And he goes to prison.

And there's this scene with all these people who he's wrongfully, who he's in prison.

And there's a scene with all these inmates.

And this was not that long after I'd spent my one night in jail.

And I found, it's a comedy.

It's not, I mean, it's a slightly dramatic moment, but it's a comedy.

And I was overwhelmed with emotion seeing this scene.

This scene with all these, it's, it's a light comedy, but it's all these people incarcerated.

I had had this experience one night.

And I was overwhelmed with emotion.

And I was like, I started tearing up in the movie theater.

And I was like, and I, and I, I left the theater thinking, well, this thing I came to law school for, I'm not so interested in.

I'd been interested, my criminal law class had been very interesting to me.

And I was like, I should do something with, like, I felt like this is some, it felt like a sign or something to me.

That this was an experience I had that meant something to me.

I, I, it had, it had given me some sort of access to a well of sympathy for people in that kind of position who are locked up, who are facing that kind of disruption in their lives.

Um, and I felt like I should do something with that feeling and make, make something productive of it.

So I spoke to my criminal law professor.

I went to her office hours.

She was a former public defender.

She became a mentor to me, kind of guiding me on places I could, I could do internships.

And so both my summers in law school, I, I spent at public defenders offices.

I, there was a public defense clinic at my school and I did that my third year.

I took various criminal law classes.

It kind of just became my focus.

And I also thought, you know, I'd come from the music industry.

Uh, my dad was a, in the music business.

I kind of come, you know, he's kind of like a rock and roll dude.

And I kind of came from that background and I ultimately thought like, well, this is a much more rock and roll thing to do with a, with a law degree than writing contracts all the time, you know, so that was my experience.

That's awesome.

Yeah, that was a beautiful story.

Yeah, man.

That's a, that's a unique one we've heard.

I appreciate, uh, you spending the time with us today to share your story, share your excellent, uh, unique, uh, lawyering skills with us, with all those definitions.

And, uh, I should have said that.

I was going to edit it out.

Well, thank you so much for having me.

This is very fun.

Yeah.

Thanks, Mike.

You're one hell of an attorney.

You really are.

Great job.

Thank you guys.

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.