Black Friday Steals Covid Current Events – When the State Discounts Due Process

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"God gave me three things. He gave me a big voice, he gave me a silver tongue, and he filled me with rage. So, like, I got up there and I had the mask on and it just didn't matter. It's my usual yelling where people can hear in the back of the courtroom and pounding on the desk and maybe with the mask on my face was not quite so contorted with rage. There's a Simpsons where, like, it's the future and Bart is, like, running a wrecking ball 'cause he's, like, doing demolition 'cause he's Bart. And he's, like, sitting there,

and he's going, they're finally paying me to do this. And, like, that's how I feel when I'm up there arguing.

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.

Welcome back, everybody, to Another Not Guilty. Sitting here in our home studio. Your boy, Dave, here. That laughing there on the side is my lovely wife, Allison. How are you doing today?

Hi, I'm doing great. I am back to my co-hosting duties as the state has been shut down again. And, essentially, you and your listeners are stuck with me.

That's right. The government, the pandemic, is forcing me to have my wife as my co-host. And so, but this family time has been great. So, I love every minute of it. Wouldn't change a bit. And I'm excited to have you on the show today as our co-host.

Aw, thank you, babe. And I was going to say the government and my fans, right?

All your fans, right? Yes. All your fans.

But, guys, today we have a pretty awesome show. It's a public defender from Nevada County. She actually just won a jury trial during the pandemic, COVID era. So, we're going to give her a call and hear all about that and hear about how that was.

I'm super excited. Here we go. Nevada County. Where is that? Is that in? It's like, it's like up north, like. Hello? Hi, this is David from Another Not Guilty. Hi, it's Tamara. Hi, Tamara. How you doing? We are great. How are you? Good, good. We are looking for a badass public defender.

Oh, I am a badass public defender. Oh, well, perfect. Oh, yeah, she is. Yeah. Tamara, how did you find out about the podcast? At work. My boss was like, oh, you should contact that Another Not Guilty podcast. Like, because you guys are not guilty, so. Wait a minute, your boss? That's actually, like, super cool. Well, no, I mean, lots of people in my office apparently are into your podcast. Great. We got a badass public defender from Nevada County, California.

California. Tamara, how are you doing today? I'm great. How are you doing? Great, great. How long have you been a public defender for? 18 years. 18. Whoa, whoa. Okay, nice. And so what kind of trial are you here to share with us today? What were the charges?

So this was an attempted robbery trial, although, I mean, in name only, it was glorified attempted shoplifting that they couldn't prove. But, you know, what we have at the district attorney's office in Nevada County,

is an assistant district attorney, is an assistant district attorney, who is probably running for DA in the next two years, and has very clearly directed all of his deputies to charge everything to the hilt. You know, non-crimes that didn't used to be filed at all. Like, you know, a bar fight, like a fair fight between two men where somebody gets the worst of it. They didn't used to file that. Now they file it.

They're filing things that really are basically misdemeanor conduct as felonies. Anything you can turn into a strike, you do. And the will of the people is being completely ignored. You know, the voters voted in Prop 47, which would have reduced a lot of felonies to misdemeanors.

Well, the district attorney's, like, scour the penal code for any charge you can possibly charge as a felony for what would now be misdemeanor conduct. And as a result, in 2019, my office had a 69% not guilty rate.

Wow. And it should be the reverse of that. I mean, the district attorney should not be bringing so many cases they can't prove beyond a reasonable doubt. And they don't seem to care. They just, they do it again and again and again. And I don't know if they're trying to train their deputies or I don't know why they're doing it.

But it's, it costs our county a lot of money to call all those jury trials. It inconveniences jurors and it screws with people's lives. It's completely wrong.

Um, so this is a case of some guy who was shopping at our local hardware store. Um, he had a cart full of items or, I mean, I don't know, two or three items in the cart, expensive things.

And he sort of had the cart kind of near an exit in the garden section. And two clerks came over and are like, hey, you got to pay for that stuff, buddy. And he was insulted and called them names and said some threatening things.

Um, and, you know, reached into his pockets and held up money and said, I have money to spend. I'll take my money elsewhere and said a bunch of things I won't repeat on the air.

Um, and left. And that's attempted robbery. And there's two problems. One, that's complete and utter overkill to charge that as robbery. It's a strike. It's a violent felony.

And number two, they can't prove it beyond a reasonable doubt. How do you know he intended to steal? Because he's near an exit?

Wait, so the merchandise never leaves the store?

Correct.

And he's just, he has a shopping cart full of merchandise at a store and it's near the exit? That's it?

Yeah. I mean, it's, you know, some big hardware stores will have like a garden area.

It's basically outdoors. It's enclosed, but there's no ceiling to it.

And there's an entrance where you can drive your car in and then you can go around the back and drive your car out the other way.

So you can pick up like lumber or heavy stuff or something.

And he's right by like the car, you know, entrance. It's actually an entrance.

Um, and, you know, he's like 20 feet away from it.

And so apparently that means he intends to steal.

You kind of gave like the bare bones facts, but like, was there any more prosecution facts or like spin or embellishment in the police report?

Yeah. So the police report was, you know, one page long. Um, there were two clerks that were the two people who came up to him and basically said, are you, are you going to pay for that buddy?

Um, and they were both interviewed by the police officer on body cam footage.

So there's a video of them both being interviewed together at the same time and finishing each other's statements and right, which of course, as we know, you're not supposed to do that.

You're supposed to interview them separately so that they rely on their own recollections, not what the other dude said.

I got out on the stand that they had had multiple conversations basically before the police officer interviewed them.

And since they worked together, they've been talking about it for the last six months.

What did they say though, on there, on the body cam?

Well, I mean, they basically say this guy came in and, you know, he was walking around the store and we thought he was going to shoplift.

And they get into a lot of detail about what he said and did after they accused him.

But they didn't give a lot of specifics as to why they were so sure, um, that he was attempting to shoplift.

So the other evidence, besides the body cam footage of the two guys talking, um, was a video that actually showed the interaction between the two clerks and, uh, Jimmy.

I'm going to call him that.

I don't like it when the DA just called him the defendant.

Um, so Jimmy, but the, the, it's surveillance footage that actually shows there's no sound, but you can actually see the interaction.

The quality is really poor, but also you can't really see the clerks approaching him apparently from either side.

Um, and you know, that makes it, you can't tell what he's looking at.

Like you see him sort of push the cart and sort of rest it up against a pallet of, uh, potting soil.

Um, and it rolls a little bit and he kind of stops it and then he sort of turns and looks over his shoulder.

And to me, it just looks like he's looking at something in the store, but it also could have been one of the clerks coming that way.

You can't see.

So, I mean that, and you see him gesturing, you see at one point him, you know, reaching into his pockets and holding up, you know, what does appear to be money.

I mean, you can't really tell, but if you sort of know what you're looking for, um, so you can see that, but that's about it.

I mean, there's a police report, there's the body cam footage of the two clerks talking, and then there's the, you know, the video of him standing 20 feet away from the, uh, exit.

So, I mean, just to educate on the law a little bit, what, what the prosecution is trying to allege is that he used fear and force to steal the property, which is why they're elevating it from maybe what we might think of as an attempted theft to an attempted robbery.

Right?

That's kind of like, right.

They're trying to argue here.

It's, you know, what we call an Estes robbery, of course, which is, which is where basically if you threaten or struggle with a clerk or shopkeeper or security guard who's attempting to recover stolen property, that can count as a robbery.

Because it's, you know, using force or fear to basically hang on to the property.

There really wasn't any force.

He never put his hands on either clerk in any way.

There was this very brief moment where they both had their hands on the shopping cart, and there was like a little tug of war, and then he just kind of released it.

Or, you know, they said that he pushed it at them, but it didn't look that way to me.

So, yeah, I mean, they're calling it an attempted Estes robbery.

And, you know, what's interesting about that is, you know, your exposure's not real bad on that, because when it's an attempt, it's cut in half.

It's still prison time, though.

Yes.

And they wanted prison and a robbery.

That's another thing that the district attorney's office is doing here.

They're charging everything to the hilt, and then they make terribly unreasonable offers.

Like, the only offer they ever made for him was take an attempted robbery and go to prison.

You know, we offered, you know, there was a time when, you know, they would charge something like that,

and we'd grudgingly take a, you know, maybe, and maybe not in this case, because it was pretty weak,

but we'd sort of grudgingly take a non-strike.

But in this case, they would never give us a non-strike, even a felony.

And he, at one point, was like, well, I would plead to the attempted robbery if they suspend state prison.

And I was like, buddy, that's not a very good offer.

Like, why don't we just, you know, your exposure is, you know, the worst you would do is two and a half years in prison.

But the DA rejected that offer as well.

So I was like, oh, gosh, now we have no reason not to go to trial.

Is there any sort of, like, racial profiling issues here?

I mean, it seems so strange that the clerk sort of single him out in this particular area,

where it really sounds like he could be continuing shopping.

Do you think there was anything like that that came into play?

No, you know, where I live is very, very white.

We have very few people of color living in this community.

Now, there's sort of class profiling that you see around here.

Although I'm not even sure that's what's going on, what was going on here.

I think that the clerks just got a little bit overeager.

It was just a slow day in the garden department.

Well, you mentioned tomorrow.

It wasn't a slow day.

It was Black Friday.

Oh, it was also his birthday.

Oh, stop it.

Oh, man.

And he was, right.

And he was buying himself, you know, and I, you know, he had a job and he'd taken out

some money and he was going to go buy himself some tools and stuff like that.

So how old was your client?

I want to say he's like 30, maybe.

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And, all right, so then let's talk about the development of the case.

Can you tell us, give us an idea of how you worked on the case?

The thing I did in working up the case was I very casually suggested to the district attorney

that we waive prelim, which is how we avoided the 422 criminal threats, which he would have

been convicted of.

All right, well, let's talk about that for a second.

Okay, so once you're arrested on a felony, you have a right to have a preliminary hearing

within 10 court dates or about two weeks usually.

Yep.

And that's when the prosecution has to bring in evidence of probable cause that a crime

was committed.

But sometimes at the prelim, evidence of another crime comes in that's not charged.

And after the prelim, that crime gets added.

So as a strategy, you did not want the criminal threats to be brought up during the prelim,

so you waive the prelim.

Yeah, we public defenders.

Because I was going to say, how did this survive 995 when we were talking about the robbery?

But I see your strategy.

I'll say maybe you would have gone for the dismissal at prelim of the robbery.

Right.

But, you know, if you're seeing the criminal threats, that sounds like it was a very savvy

move on your part.

We public defenders, as you know, absolutely hate Penal Code Section 422 criminal threats

because all you have to do is say, you know, I'm going to kick your ass.

And if the person doesn't like you and wants you to be in trouble, they can say, I was in

fear for my life, even if they really weren't.

And then you get a strike.

And by the way, every 422 in Nevada County is charged as a felony.

This sounds like a horrible place to live.

Yeah.

You know, it wasn't like that when I started here.

And can we back up a little bit on the facts here?

So your client kind of cussed out the clerks and then he left.

He left the stuff and walked away, right?

Yes.

And then he said threatening things.

What other threatening things did he say?

So the things that he supposedly said were both my client and one of the clerks had a

facial piercing of some sort.

So he supposedly said, I'm going to rip your eyebrow piercing out.

He also said, what was the other thing he said?

Something else I can't remember.

Maybe I'm going to kick your ass or something like that.

And then supposedly as he was leaving, he was like making finger guns and saying, I'm going

to shoot you.

So how did you end up being the first COVID trial?

Just luck.

Okay.

All right.

And so, yeah.

So your case is set for trial.

It's in the COVID era.

And how does your client feel?

Did you guys want to do a trial during this time period or are you trying to wait it out?

So here's the thing is clients don't care about COVID.

If you're somebody who finds yourself in the criminal justice system and is getting chewed

up and spat out, you know.

And you're stuck in custody, right?

And you're stuck in custody.

You've got so many bigger fish to fry.

You've got so many problems besides, you know, I might get a disease that, you know, maybe

I'll get real sick or maybe not.

They just don't care about that.

What they do care about is not coming to court because if they go to court, when they go

back to the jail, they have to be placed in quarantine for two weeks.

So they're basically like in the hole.

And so nobody wants to come to court.

We're even doing things like prelims and violation of probation hearings, you know, with the client

appearing by screen.

I even did a violation of probation hearing where he was testifying through the screen.

So that's the main thing clients care about is not having to go into quarantine when they

go back to the jail.

But of course, for trial, I insisted that he come to court.

Yeah.

Allison has like a big shock look on her face right now.

I do have a big shock look on my face.

I mean, that seems like such a strange way to handle it, you know, from from the sheriff's

department.

But I mean, it just seems like it's like an attempt to discourage people to be present at

their own hearings.

Right.

I mean, it just seems like another infringement of their rights.

You know, you think that's that's I don't know.

Yeah.

I go back and I go back.

I go back and forth on that because, you know, on the one hand, it is a big pain for them to

bring them to court and to have an excuse not to.

And the judges like when they come over, you know, when when when they appear by screen at

first, the judge was like, do you consent to appear to the screen?

Because they have to waive their personal appearance now that time has gone by.

Like we just say that for them.

But when it first was starting, the judge would say, do you consent?

And the judge would give the speech about, you know, you're probably going to have to

go into quarantine if you come over here.

So the judge is basically talking them out of coming to court.

Like and I felt that a lot more than the jail.

I mean, the jail on the one hand, you're right.

I mean, it does make it a lot easier for them that they don't have to transport them and that

they might use that as an excuse.

On the other hand, we haven't had a covid outbreak in our jail.

All right.

Well, let's let's talk about this jury trial.

The covid experience.

All right.

So did you do before the jurors came in for jury selection?

Did you do any pretrial motions?

So did a motion that when the witness reaches the stand, he or she must remove his mask.

How do you know when somebody is lying if you can't see most of their face?

And I offered to bring in fresh masks and hand sanitizer if they wanted it.

And that motion was granted.

And had there been any modifications made to the courtroom at that point, like as far as

plexiglass dividers?

I know that's sort of a big thing in L.A.

Was there anything like that?

So here's what they did.

They went around the courtroom and they blocked off a lot of the seats so that every seat was

six feet apart from every other seat, which meant that the jury was scattered throughout

the courtroom in the jury box and also just in the gallery.

So there was only like three people in the jury box.

And in order to do voir dire, you could only do them in groups of basically, aside from,

you know, D.A., you know, P.D., judge, et cetera, court staff.

There was really only room for 15 bodies in the courtroom.

So that was once we had a jury, it was your jury and two alternates.

And before that, we did voir dire in groups of 15 or fewer and used questionnaires.

So when you're making your spiel about, you know, reasonable doubt or when you're, you

know, at the beginning of jury selection, when you're sort of, you know, breaking the ice

with the jury and you do that once and everybody hears it, you have to do that again and again

and again because it's not, everybody is not in the audience listening while you're voir direing

the, you know, the 12 jurors and the six pack.

So that's, I mean, those are the only modifications.

They didn't put up plexiglass.

And in fact, the court, I mean, I hate to say it, they're not, they're not doing a really

great job.

I mean, like there's not a hand sanitizer bottle on every table.

What about, are you wearing, are you wearing a mask?

Is your client wearing a mask?

The judge, the court reporter?

Every single person in the courtroom is wearing a mask.

Okay.

And jurors as well.

Yes.

So your motion is specifically asking for the witness to take their mask

off while they're actually testifying.

Yes.

Okay.

Yes.

Is that now typically in LA, the court reporters right in front of the witness when they're

typing everything they're saying down, did the court reporter move?

You know, like, so they wouldn't be in front of the witness.

Yeah, they moved her a little bit.

They kind of moved her up a little bit.

I think they slid the witness like a little bit over to the side.

So they were a little bit farther away from the judge.

They were like on the stand, but they weren't at that little sort of desk.

They were like a little bit off to the side.

So what, what were some of the, the COVID jury questions you had for the prospective jurors

during voir dire?

To be honest, none.

Oh.

Interesting.

I just didn't think there was anything to say about it.

It was, you know, we're all here.

We all got masks on.

I felt like as divisive as this, do we wear masks?

Do we not wear masks?

Is COVID a real problem or not?

I mean, I, you guys live in a real city.

Um, you have no idea.

I mean, this is, I, anything, anything I talked about with COVID, you know, half the jury is

going to be offended by it.

So there's actually kind of a lot of hostility in this community, uh, towards, you know, the

masks and there's like protests and stuff like that.

There's, it's, um, I've lived in big cities all my life.

I've lived, I've lived in this town now for 18 years, but I've lived in big cities all

my life.

And this is really, it's a real, it's a real change.

I, I, this is probably the most racist place I've ever lived.

And I, you know, I grew up a lot of the time in the South, Texas and stuff like that.

I mean, this is, it's, it's a, it's a weird experience for me.

Um, what is there to say other than thank you for coming out in these unusual times?

And, you know, we all sort of commented on, oh, this is a little weird for us.

Oh, we're doing things a little bit differently.

But other than that, nothing.

Can you tell us a little bit about your voir dire then with the jurors then?

I was kind of looking for young people.

I was looking for people who maybe had been accused of shoplifting before.

Yeah.

Um, so obviously, you know, the African American, you know, man who appeared, which is, you

know, one of the very few African Americans I've had on any jury trial I've ever done.

Cause we just, we don't, it's, it's a very white community.

Um, for instance, he was young and I was like, okay, well, that's, that's somebody who probably

has been accused of shoplifting.

So I sort of wanted people like that, but also I, because we used a questionnaire and because

I've lived here a long time, I know everybody.

And so I saw people who I thought were good.

And so, you know, I don't, I'm not gonna, I'm not gonna poke at that too much.

If I see somebody who I think is good, then I'm not going to ask them a ton of questions.

So you know what?

You literally know the jurors.

Personally.

Yeah.

Yeah.

Like one of them was a court clerk and she revealed that and said, I know everybody on

this.

So, but what she was like, she was the witness at my wedding.

Like last time my marriage certificate, she's like a friend of mine.

Um, we had a woman who is the wife of a man who ran for district attorney against the seated

district attorney.

And that came out in voir dire like he knew that and I gave her husband a whole bunch

of money when he ran and that he should have known that too, because they printed it in

the newspaper.

I mean, I gave more money to him than just about anybody else.

And it was like, you know, I won't say my last name, but you know, it was, it was all

over the newspaper.

It was kind of embarrassing.

I was like, Oh, so you gave a whole bunch of money to so-and-so.

And I was like, Oh yeah, great.

I mean, I knew it was public, but I didn't think they were going to print it in the newspaper.

Yeah.

So, I mean, I just saw people who looked good and I was like, all right, this person

looks good.

This person looks good.

I think they can be fair.

I, the things I was looking for, I was looking for young people and I was looking for people

who were intelligent because when I have a case where proof beyond a reasonable doubt has

not been met, I want intelligent people on the jury because the last trial I did, not,

not this one, but the one before that was a hung jury.

And I talked to a juror and I always ask jurors after the fact that, what did you think of

my explanation of proof beyond reasonable doubt?

Because I have found jurors don't seem to understand it.

And I always want to know, like, what is, what did I explain that actually clicked with

you?

And one of the jurors told me, you know, the people who were voting for guilty in this

previous trial that hung didn't understand reasonable doubt and they didn't want to learn.

So I, you know, anybody who seemed like intelligent enough that when I started talking about reasonable

doubt that they got it, I was like, okay, that's, that's the juror for me.

Because if they apply the standard proof beyond a reasonable doubt, they're going to find this

man not guilty.

And I mean, it seems like, you know, you're really making a legal argument with the attempted

Estes robbery, you know, I mean, Estes robbery in and of itself is sort of, you know, a more

technical concept.

And then you're throwing in an attempt and then you're, you know, I mean, basically at the

end of the day, these clerks jump the gun, right?

Was this guy going to steal something?

Yes or no.

We have no idea because you confronted and accused this man when he's shopping for peonies for

all we know, you know?

Right.

So that's interesting.

That sounds so, so I like that.

So you're looking for intelligent jurors and your best friends.

Perfect.

Yeah.

People you've had, you've met, you've seen at a barbecue before.

Yep.

Well, that sounds like the perfect strategy for this case.

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Thank you.

Well, let's jump into the trial then.

Tell us about opening statements.

You know, the opening statement and all arguments were conducted with me standing in the well

with my back to the judge because you have to face the jury who's in the gallery.

Right.

And you're turning to the right and then turning forward and then turning to the right.

You have to do sort of like a panoramic span of the whole courtroom when you do your opening

statement.

Okay.

Yep.

And, you know, I had to wear a mask and I was like, I can't believe I have to do this.

And, you know, it was kind of interesting because, you know, do you, do you have a, do you have

a fashionable mask or what's, you know, I have a black one that the county issued me and

I, I thought it made me look kind of like a gangster.

So I had another one that was, it was sort of like pale blue and had sort of a, like a

pattern with like feathers on it kind of, and it's a little less scary.

So I wore that, it was less comfortable.

I, you know, I may be the next one I'll wear the black mask, but I thought I looked better

in it.

Sometimes you got to wear clothes that's not comfortable in jury trials.

Yeah.

It's got to look good.

Right.

So.

But you got to think about, you got to think about speaking and, you know, this is interesting.

There's some things as a lawyer I'm not that good at.

I'm actually not really very good at legal research, for instance.

But, you know, God gave me three things.

He gave me a big voice.

He gave me a silver tongue and he filled me with rage.

And so, like, I got up there and I had the mask on and it just didn't matter.

My usual yelling where people can hear in the back of the courtroom and pounding on the

desk and, you know, maybe with the mask on, my face was not quite so contorted with rage.

I mean, I'm up there.

I'm up there.

It's like, um, there's a, there's a Simpsons moment that I think of.

Um, uh, there's a Simpsons where like, it's the future and Lisa's off in college and she's

smart and stuff like that.

And Bart is like running a wrecking ball because he's like doing demolition because he's Bart

and he's like sitting there and he's going, they're finally paying me to do this.

And like, that's how I feel when I'm up there arguing.

It doesn't matter if I have a mask on, everybody can hear me.

It's, that is, that's, that's the job I was born to do.

So I just got up there and just told them what happened.

It took two minutes, said it was his birthday, decided to do some shopping, buy some stuff

he needs, buy some stuff he wants.

He went to the bank.

He took out money.

He went to the store.

He selected some items.

He got accused of shoplifting.

He got mad.

I don't really blame him.

He said some choice words and he split.

The DA is not going to be able to meet his burden.

Thanks for showing up in the throes of a virus.

I'm going to sit down now.

I'm out.

Thank you.

Drop the mask.

What, uh, what, uh, drop the mask.

Um, and okay.

So how's the evidence roll out for the prosecution?

So they didn't even call the cop.

They called those two clerks.

And how, how'd they testify?

Go ahead.

One of them was obviously like kind of a lot more hostile to this guy.

I mean, one of these, one of them really seriously wanted him to be convicted.

He, you know, oh, he didn't say anything about, um,

Jimmy reaching into his pockets and holding up money.

Like he never said anything about it.

He didn't say anything about it to the police in the body cam video.

Neither of them did.

Um, and he didn't say anything about it on the stand until I asked him about it.

And did he admit it or was that clear from the video?

It was, it was not clear from the video, but he did admit it.

Oh, that's great.

Did he say why, why they approached your client?

Like what was he doing to them that seems suspicious?

So that was, that was kind of when I was like, okay, I'm going to win this trial because they

basically, they described his suspicious behavior and his suspicious behavior was walking around

the perimeter of the store, the inside perimeter, not like, not outside.

And, you know, looking at things on the shelves and putting things into his car.

And I want to be like, that's, that's a customer, man.

Yeah, that's, um, oh my God.

I must get profiled daily.

Oh, and my guy, this is actually an interesting fact.

My guy had, it's a large parking, parking lot by this hardware store.

There's like the hardware store at one end.

At the other end, there's like a credit union and a subway restaurant.

And then sort of in the middle is a big save mart.

And he parked all the way, well, not all the way over by subway, but like more than halfway

across the parking lot.

And so, I mean, that was kind of an interesting point.

It's like, okay, if his plan is he's going to push a big cart of groceries out of the,

not groceries, but out of the hardware, out of the hardware store, like, is he, is he

going to push it all the way across the parking lot?

Like, don't you think the clerk is going to catch up with you at that point?

I mean, if that's your plan, you need to park close and unload everything real quick and

get out of there.

Right.

Yeah.

You're not, yeah, you're not like, oh, let me stroll through here.

I mean, clearly it was not a sophisticated, that's, that's, that seems like a huge fact

in your fever.

Well, and, and the funny thing was the clerks were kind of suggesting, um, they're like,

and he parked way over on the other side of the parking lot because they saw him leave.

And they were suggesting that that somehow was like consciousness of guilt, that he was

like hiding his car on the other side so that he wouldn't, you know, get caught or something

like that.

But, um, yeah, I mean, I think that's to some extent he, he just, you know, he went

back to his car and he got, got in it and drove away.

And then they, you know, caught up with him the next day.

I don't, I don't, I think maybe they followed him and saw what his license plate was.

I don't, I don't, I don't even know how they caught up with him, but they, they, the police

interviewed him the next day and placed him under arrest.

All right.

So then, uh, that's the people's case.

They rest and that's time for the defense.

What, what's the evidence you put up, if any, because the burden is entirely on the people.

You don't have to put up any evidence.

Right.

Of course.

Um, and of course I made a big point, you know, during voir dire, I had to ask everybody,

okay, so what if the district attorney does a good job?

You think he probably did it, but you have doubt in your mind and that doubt is reasonable.

And then it's my turn and I do a crappy job.

I don't put any witnesses on.

I don't ask any questions.

I don't introduce any evidence.

What's your vote?

So I always do that.

Um, and so that of course was the situation that we were in.

The DA had not met their burden.

Um, but my client did take the stand by the way.

I was really pleased.

I, one thing I didn't tell you about in preparation was getting clothes for trial.

We did not have anything good for him in our trial closet.

And it was really hard to find clothes because things had just reopened after the COVID.

And all we have is Kmart and JC Penney's.

And I went to Kmart and I found some very sort of basic men's pants and, you know, black and khaki and stone and stuff.

And I was like, oh, these are great.

And they did not have a single pair in his size.

And he wasn't some weird size.

Um, he was, I, he was probably 6'1 and, you know, kind of a slim guy.

Um, so I went to Penny's and, you know, I, I, I did find some, some good clothes for him and some good shoes.

And I thought he looked really, really nice.

We found some good ties, uh, in the, in the clothes closet.

So he looked good when he got up there.

And he was really, really grateful for that.

Like when I brought him the first round of clothing, um, uh, from our clothes closet that didn't really fit.

He's like, okay, I guess this, this, this will do.

And I was like, okay, let's try again.

And I went and got those clothes and he like called me from the jail and thanked me for it.

And then his mother called me and thanked me.

Oh, nice, nice.

So it was really nice.

And he looked really great.

Um, yeah.

And he got on the stand.

Can we talk about that?

Can we talk about this?

What was the discussion like for him to testify?

Did, did he want to testify and you said he didn't have to?

Or what was your, how did that go down, that conversation?

Because I feel like this is one of those conversations you don't have until after the people have rested.

Unless you just know for sure your client's dead set on testifying, which, which is the case sometimes.

Oh, I thought he should testify.

I thought he should testify before trial.

I had basically said, I think you should testify.

I think it's not hard for you to tell your side of the story.

Um, there, there aren't any hard questions to answer.

There isn't any, you know, explaining to do.

Like it's like I got up this morning, I went to the bank.

I mean, he had an explanation for why he had so much cash on him, which was that when he went to the ATM, he'd lost his card.

And so he had to do some weird thing with his cell phone where they like send him a code.

And he types it in or something like that.

So it was a little bit of a pain in the neck.

And so he's like, okay, well, you know, I'm going to take out a little extra money.

And then, you know, hopefully by the time I, you know, need more money, I'll have found my ATM card.

You know, like I said, he talked about his employment and why he needs these tools for his employment and how he has money because he has a good job.

So he didn't seem like a bum.

You know, he talked about, you know, what he planned to buy and, you know, why he was going into the gardening section.

He was also looking to get something for his mother for Christmas, you know, something for her patio.

She has like, she's into like, I think it was ladybugs and butterflies.

He found a few things that had butterflies on them.

But he hadn't selected any of them because he was still deciding.

And then he had to go out to the garden section because he needed some potting soil.

And I was like, well, what were you going to plant?

And he was like, well, think about doing some California poppies.

And also, you know, we had some cactuses in our house and the dogs knocked them over and all the soil fell out.

So we had to, you know, put more soil in them.

So he was really specific about what he needed.

I'm ready to vote not guilty right here.

Come on, girl.

I love it.

He just sounds so earnest and endearing.

And you know what I mean?

It's like, here he is just trying to do all these things and he gets accused.

Oh, God.

You know, he talked about, you know, OK, so I went over there and I, you know, I was like you said, it was his birthday.

And, you know, I went in to save Mart and I got a soda.

And I was like, well, what soda did you get?

He's like, I got a Sprite.

And then I went back to my car.

And then I decided not to drive my car, you know, over to the other side of the parking lot because it's always like super, super crowded there.

And that's completely true.

It's like impossible to get a parking space in front of the hardware store.

You know, I went in there.

I was picking things out.

And, you know, when the guys came up and, you know, asked me, accused me of stealing, I got mad.

And, you know, I shouldn't have said those things.

But, you know, I was mad.

I was insulted.

How did the DA cross-examine your client then?

It was pretty bad.

It was pretty bad.

I mean, he was just, like, just trying to trip him up.

And there just was nothing in there to trip him up on.

Like, for instance, he was like, well, why would you be growing California poppies if it's December?

And he's like, well, it was November.

And I said, well, it was the end of November.

And he's like, okay.

So we cross-examined him on his green thumb?

On the agriculture sense?

And then he's like, well, like I told you, like, we had some cactuses and they got knocked over by the dogs and I had to put new potting soil in them.

You know?

I don't know what to tell you.

He just, like, tried to, like, zing him and it was.

Did he say the dogs' names?

Got ran over, you know, Mr. whatever cute dog name he has.

I can't think of a cute dog name right now, but Mr. Sprinklers.

I don't know, that's a stupid dare.

Mr. Rufus, no, yeah.

Mr. Rufus and Jojo and.

No, he didn't say anything cute about that.

I mean, he didn't come off as really charming.

He just came off as matter of fact.

I think he sounds charming.

I love it.

So, yeah, I mean, the DA was trying to trip him up and was not really succeeding.

Oh, the other thing that the DA was doing was, like, was trying to suggest, obviously, that he had this, like, selective memory.

And so, like, for instance, like, he was like, would you remember there being a lot of snow that time of year?

Because apparently in the end of November of last year, we had some freak snowstorm or there was a bunch of snow.

I don't particularly remember that.

Like I said, I've lived here a long time, so I, you know, maybe the years all run together.

But he just kept asking about it.

And, you know, it was like, the guy's like, no, I don't remember that.

He's like, you don't remember that there was this big snowstorm?

And he was obviously, he's like, but you remember what brand of soda you bought?

And I was like, okay, well, I mean, that's probably the brand of soda he prefers.

I mean, I know what my favorite beer is.

I mean, I.

Yeah, and it's his last day of freedom.

You know, like, I feel like I'd remember my last soda before I spent the next six months in jail, too.

And also, he's like, and you knew exactly how much change you got.

And he was like, well, yeah, because he knows how much a soda costs.

Like, you go to the ATM, you get 20s, you break the 20, you know how much change you're going to have when you've bought a soda.

So, it was, he was really trying to, like, trip him up with his supposedly inconsistent memory, and I did not find it very convincing.

Yeah.

I guess the jury didn't either.

Okay, good.

So, time for closing arguments, then.

How'd that go?

You know, I would go back and forth whether to do a PowerPoint.

Juries really like something to look at.

But especially because of the way the jury was seated, I really thought a PowerPoint wasn't going to work.

They weren't going to be able to see it.

And so, I got this idea to do a closing argument in the style of the Bob Dylan Subterranean Homesick Blues video with Allen Ginsberg in it.

Do you know that?

Sorry.

I don't know.

Not really.

I can look it up, though.

Go ahead and tell me.

So, it's basically, I mean, it's a music video from, you know, before MTV existed.

I mean, it's, you know, it's Allen Ginsberg in it.

And it's a black-and-white video where Bob Dylan is just standing there as a young man with these basically what look like cue cards that have, like, the different words to subterranean homesick blues written on them.

And he's just, like, flipping through them and dropping them on the ground as the song goes on.

And they're just, like, written on in magic marker.

You know, in Bob Dylan Subterranean Homesick Blues, it's kind of like, you know, it's kind of like a rap.

You know, Johnny's in the basement mixing up the medicine.

I'm on the pavement thinking about the government.

And so, I was like, that's what I'm going to do.

So, I got these, like, eight-and-a-half by 11 pieces of cardstock and just wrote different theories for reasonable doubt on them.

And so, I kind of got up there and I, like, reminded everybody what reasonable doubt was and said the DA has nowhere near met his burden and there's all these problems with his case and yada yada.

And I said, there are many, many, many reasons for you to have reasonable doubt.

Let me just suggest a few.

And then I start holding up my cards.

And one said, you know, happy birthday.

So, it was like, who goes to the hardware store, you know, to steal on their birthday?

And then I held up, you know, money to spend, you know, and dollar signs on it.

And I was like, well, you know, he has, you know, $1,200 in his pocket.

Like, why would he steal?

And I wrote, you know, location of car.

It was like, the car's all the way on the other side of the parking lot.

Like, how the hell is he going to push, you know, those heavy tools in a shopping cart all the way across the parking lot without getting caught?

And so, I just kept flipping through these cards.

And the very last one was, why not wait?

And I saw jurors, like, nodding on that.

Which is like, just wait till he leaves the damn store.

Like, if you're so sure he's shoplifting, just wait till he leaves the store.

And then you know he's stealing.

And then you'll have him.

And it was really, really funny to, like, exchange our presentations.

Because he gave me, you know, his little printout of his PowerPoint, which is, you know, those PowerPoint presentations the DAs always do.

They clam an entire jury instruction into a slide.

And it's like, you know, they're not going to read that.

They don't want to see that.

And I, like, hand him this stack of, you know, subterranean homesick blues flashcards.

And he's like, what is this?

I was like, you know that Bob Dylan video?

So, the jury deliberated for about two hours.

And they, you know, obviously brought back a not guilty.

Okay.

Any questions or anything?

Or were they just with themselves for the two hours?

So, I didn't talk to any of them.

And here's why.

I have always wanted, when I get a not guilty, to walk my client out the front door of the courthouse.

And I kind of knew he was going to get a not guilty.

I didn't believe he had anything else.

In the past, when I've gotten not guilty of in-custody people, a lot of times, like, they have a hold out of another county or they have another case out there or something.

So, they just go back to the jail.

And it was really important to me that this guy, I mean, he'd spent six months in custody for a crime that the DA could in no way prove beyond a reasonable doubt.

And so, I said, you know, Judge, I want him released from custody, forthwith.

And the bailiffs and corrections officers, or transport officers, were arguing.

And they said, no, no, no, you can't do that.

I'm like, yeah, you can if the judge orders it.

And the judge is like, okay, well, what's the problem?

Why can't you just release him here?

And they're like, well, for one, you know, those clothes don't belong to him.

I was like, those clothes belong to me, and he can wear them as long as he wants.

And they're like, oh, okay.

And they're like, well, he has to be, like, unbooked at the jail, and he's not going to get his property back.

And I'm like, no, that's ridiculous.

You're telling me he can't get his property back if, like, he's found not guilty at trial and he's released from custody?

And so, finally, we work this thing out where the judge is like, there's, like, something he has to do with the jail.

The judge is like, will you drive him to the jail?

And I'm like, yes, I will.

So, we walked him out the front door of the courthouse and back to my office.

And then we got in my car and we drove over to the jail.

And, alas, it turned out he had a loose misdemeanor conviction.

So, they took him back into custody.

Oh, no.

We still had, yeah, but it's still, it was still pretty sweet.

I mean, it was still, I have always wanted to do that.

Yeah, that's incredible.

I mean, that, I don't think that's even an option in L.A.

That's, I mean, that's such a cool, cool moment.

Because we always say we walk our clients on a not guilty.

I walked my client, but then they go back into custody.

Right, even, yeah, no matter what, to at least be processed.

So, I mean, yeah, that's so, I mean, that's so cool.

What a good, I mean, what a great fight that you were able to, to have that, you know, have

that for him.

I mean, I mean, like, he must have really felt like, yes, I am free.

And, you know, the big punchline for me was, that was a Thursday.

Okay.

And I went back to work on Friday, as usual.

Okay.

And then on Monday, I got assigned a new case of a extremely mentally ill woman.

This is a woman I've represented many times.

I know by name.

She's completely, completely delusional and schizophrenic, who went into the drugstore,

apparently, stole a pair of sunglasses, and when the clerk talked to her, she pushed her,

which you shouldn't do.

That's not right.

And they charged her with robbery.

It's like, they don't learn.

They don't care if they lose.

I mean, there should be, it shouldn't be free to just file charges that you can't prove.

Absolutely.

Or, like, if you file enough charges you can't prove beyond a reasonable doubt, like, maybe

you shouldn't be allowed to file anymore.

Yeah.

I mean, it's completely free for them to cut paper and take away somebody's freedom.

So you're living in Groundhog's Day up there in Nevada County.

Yeah.

Is that case scheduled for trial already?

No.

I declared a doubt as to her competence, and she's completely incompetent.

So we're going to spend tens of thousands of dollars to put her in a state hospital.

Oh, and the weight for the state hospital is terrible right now because, you know, because

of the COVID and everything like that.

Yeah.

And if they had filed that as a misdemeanor like they should have, you know, shoplifting

for sunglasses and simple battery for pushing the clerk, then the standard for a person who's

not competent to stand trial is completely different.

They don't have to spend all that money to send them to the state hospital.

They just received mental health treatment in the community.

Yeah.

And they knew that woman was crazy.

Like, she's been a member of our community forever.

Everybody knows this woman by name.

Yeah.

I know.

There's just no tolerance for anybody who's any different in this society.

I mean, in the community that I live in.

It's just kind of like, you know, people will call the police because somebody's sitting

on a curb and they don't like the way they look.

It's just, it's not like living in a city.

People don't have any tolerance for anybody who's any different.

Yeah.

It's depressing.

Yeah.

Sounds like they're lucky to have you.

It also sounds like Nevada County is kind of where it's at in terms of like just sticking

it to the DA.

If you guys win 69% of your cases.

Yeah.

Well, that was just in one year.

I mean, we, I'm not saying that it's always like that.

That's a relatively new trend.

Nope, nope, nope, nope, nope.

Nevada County, you guys stick it to the DA all the time.

You're a bunch of badasses up there fighting the man, undoing the wheels of mass incarceration

and then making them look silly.

Sorry, that's the takeaway from this podcast.

We have a really great office.

I, and that's one of the things about, and particularly the two, excuse me, the two felony

attorneys that I work with most closely, I consider to be very dear friends, being able to talk

about the law and how outraged we are, or being able to talk about anything else under

the sun.

It's, I feel very, very grateful to work at the office that I work with.

Every single person in the office is, is really a great attorney, or if they're not an attorney,

if they're, you know, support staff, they're great support staff.

I am very happy to have this job.

This is the last job I will ever work as a lawyer.

This is the last job I'll ever work as a public defender.

Let's talk about that.

You've applied at different public defender agencies after you got out of law school.

Why did you want to become a public defender?

So why I wanted to become a public defender is not as interesting as why I remain a public

defender.

I kind of fell into being a public defender just because, you know, sort of by default,

I went to kind of a, I don't want to call it snuddy, but I, white shoe law school.

I don't know the best way to describe it, but most of my classmates either worked at, I guess

white shoe is more a law firm term.

Most of my classmates went on to work at white shoe law firms in New York or do federal clerkships

or something like that.

And that didn't appeal to me.

I wanted to be a trial lawyer.

One of the guests on your show previously said, you know, it's pure practice of law.

Like, I don't want to rent a copier.

I don't want to hire support staff.

I don't want to rent a building.

I don't want to pay malpractice insurance.

I just want to show up and practice law.

And that's what you get with being a public defender.

Yep.

But I remain a public defender because every day I do this, I am more and more persuaded

that this cause is just and what the prosecutors are doing is wrong.

And it's not just in this county.

It's this thing where, you know, our solution in society is not actually to help people, but

just to punish them and cause them pain for doing things that, you know, people do because

they're poor or ignorant or because they live in darkness or pain.

Well, it's just like this lady that you represent now who has mental illness and punched somebody

and the punishment is the presumptive way of handling it.

And you have to go through, you know, go through all these, jump through all these hoops just

to get her mental health treatment.

We have decided as a society that we are going to funnel mental illness and drug use through

the criminal justice system.

And it's the most expensive and least humane way to deal with that.

Like instead of keeping somebody in jail that costs a bunch of money until they can go to

the state hospital, you know, to be, you know, they don't, when they go to the state hospital,

when they're found incompetent to stand trial, they don't even get mental health treatment.

They don't get a full scale psychological evaluation.

They just stuff pills in them and teach them how to parrot back the roles of the different

people in the courtroom.

This is what the judge does.

This is what your attorney does.

That's not treatment.

The only place you get, you know, a full scale psychological evaluation apparently is at the

public defender's office.

When your attorney thinks it might be relevant to a defense, that's wrong.

Like we should have free rehab for all.

And if you can't hack it and you walk away, you can go back if you want.

And that's, that's not the way we're doing it.

We have these treatment courts that are, you know, supposedly going to help people, you know,

encourage people to get help.

And whenever they're bad, you just throw them in jail and, you know, they have to wait for

a bed and treatment.

And like, why not use that money to provide free mental health care and free alcohol and drug rehab for

or anybody who wants it and stop spending money to prosecute people for drug crimes or for drug and drunken public or it's...

Are you saying defund, defund the prosecution?

Defund mass incarceration?

Right on, girl.

That's your slogan for DA right there.

You know, and the worst part about this is that it's man-made.

I mean, if I was a doctor, I would be fighting the natural phenomenon of illness and injury.

But what we're doing, and we can't do anything about the fact other than treat it, that people

get sick and people get, you know, injured and people get old and die.

We can't do anything about that.

But we can do something about that.

This is man-made.

We are spending a fortune to do this.

And it's wrong.

And we don't have to inflict pain on people for making bad choices.

You know, prosecution and incarceration are very expensive.

Forgiveness and redemption are free.

It doesn't make any sense to do this the way we're doing it.

And it's getting worse.

It's not getting better.

It's getting more and more, like, bringing the criminal justice system into everything, every social problem we have.

You know, drug use is not the problem.

It's a symptom of a problem.

I mean, Bernie Sanders is right.

You know, the middle class is disappearing and the poor are getting fucked.

And that's what's causing people to get high and beat each other up and steal and all that.

I mean, there's real crime out there that needs to be prosecuted.

Like I say, I handle murder cases and sex cases.

And, you know, I get that.

That has to be – you have to do something about that.

But even in those cases, I mean, the DAs cheat.

They, you know – and let's remember that that's a very small portion of the cases that go to court.

They're real serious ones.

But they, you know, the DAs cheat.

They ignore evidence that might show innocence.

They fight us on discovery.

They exploit a system that is structured to their advantage.

I mean, when my client's in jail, if he wants to talk to his family about his case and what his lawyer told him, the DA records it and listens it and plays it at trial.

Like, how is that right?

I mean, they're legally allowed to do that.

That's not against the law.

But, I mean, that's them exploiting a system that's structured in their favor.

And that's why I remain a public defender.

That is why, as long as I'm practicing law, I'm always going to be a public defender.

Wow.

You know, that was great.

We're public defenders down here in L.A.

You're a public defender up there in Nevada County.

This public defender is all over the United States listening to this show.

And we're all in the same fight, all in the same struggle, all standing up for the same principles.

It's been a pleasure talking to you today, Tamara.

Thank you for coming on the show so much.

It was great.

Thank you for having me.

It's an honor.

Absolutely.

I mean, I really enjoyed hearing about your case.

Right.

You know, I think you have a lot of important things to say.

And I think you should rethink this run for D.A.

Thanks for tuning in to this week's episode of Another Not Guilty.

Shout out to Daniel Mark, original A&G theme music composer, and Mike Grimm for the remix.

And guess what?

We'll be back in two weeks with Another Not Guilty straight from the trenches.

We'll be back in two weeks with Another Not Guilty straight from the trenches.