The Family That Sticks Together … – When Lies and Sticks Don't Hold Up in Court

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And so until I got the Spanish to English translation, it just looked like my client was setting up this ridiculous self-defense. But then once you actually got the translation, you understood why he was kept saying that because they were threatening him. They were threatening him over and over again. You know, as a defense attorney, you're supposed to be very careful before you say that somebody's a liar. And we all, at least the way I've been taught is, you know, you want to be very calm and professional and let that happen.

And let the contradiction speak for themselves. I just couldn't do that with this kid. I just did not like this kid.

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.

Injection! 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.

And yes, welcome back everybody to Another Not Guilty.

Today's show is going to be a special one.

I know I told you that last time, but this time I really mean it.

This one's even better.

This one's even better.

Guys, why? Because we just heard it right there.

Anya, guys, is co-hosting.

She's season one finale.

That's right.

Even Atomic Roach.

What?

Even Atomic Lies won't kill a cop.

Kill a cop.

That's right.

Cop Roach.

That's right.

Cop Roach.

There you are.

Is that what it was?

Cop Roach?

A cop Roach.

I don't think I ever actually saw the full title because the only thing that pops up is

Atomic Lies.

So you are a guest.

You are one of our listeners' favorites.

Ooh, I like that.

They really love that episode.

Thank you.

Thank you.

But guys, today, Anya, she's just here in the co-hosting chair.

That's right.

Because she's neighbors with another public defender.

That's right.

Who got a knock guilty recently.

And that's Carl.

How you doing, buddy?

Good, good, good.

Thank you.

First time on the show?

First time on the show.

Welcome, welcome.

Thank you.

How do you feel?

I feel good.

I'm not used to holding the microphone in front of my face, but I feel good.

Okay.

It suits you.

You rock it.

Okay.

Good, good.

And you've listened to a couple episodes, right?

I have.

I have.

They're very good.

An enjoyable show.

Love it.

So you're ready to go then, right?

I'm ready to go.

Do you think yours is going to be just as good as the other ones?

I think that my case is probably not atomic level, but I'll try and keep you entertained

if I can.

What is?

What is, David?

That's true.

But I'll do my best.

All right.

So this is a season finale worthy type episode, but it's still going to be a good one.

We'll try.

We'll try.

I think so.

I think so.

He's really minimizing it.

I was around for this trial, and it was a great trial.

And I got really into it, and I can't wait to hear about it again.

Yeah.

It was fun, and it was definitely a case that was moving to me at the end.

That's for sure.

The verdict meant a lot to me in this case.

Okay.

Well, what was the charges then?

It was a third strike case.

My client had some old strikes, which, frankly, I don't even remember what they were anymore.

But they were 10 years old, and he was charged with a 422, three counts of 422.

Which is a criminal threat.

A criminal threat, and then one count of assault with a deadly weapon.

So there were three counts.

Was it three different victims or three different time periods that he made these threats?

It was three victims all at the same time.

And when I said it was a third strike case, what I meant by that is potentially it was a life case.

So it was high stakes for him, that's for sure.

Definitely.

Because a criminal threat is a strike in itself.

It is, which is ridiculous, but it is.

And assault with a deadly weapon.

What was the deadly weapon?

It was a stick.

And he's holding the stick?

Yes.

When he made the threats?

Right, exactly.

Was it like, damn kids, get off my lawn?

Well, it's somewhere in that wheelhouse, but it was definitely a neighbor thing or a dispute amongst people that lived together, I should say.

Okay.

Well, so then what were the facts of the case from the prosecutions or the police report?

So the prosecution presented a video that was provided to them by one of the relatives of the three victims.

They were all in a family.

And in the video, you saw a little clip of my client having some kind of argument with the three victims, who are two brothers and their dad.

How do they know each other?

They lived together in the same house.

Your client and these victims?

My client and his pregnant wife had rented a room in this house that was shared by them and all of the victims.

Okay.

I don't know how they met originally, but they were tenants.

And so the video shows your client?

It shows my client going into his room of the house and coming back out.

And what was dramatic looking was as he's coming out, you see his sweater being held by his wife, trying to stop him from going back outside.

And he goes outside and pulls out what looks like a gun on the video and starts charging towards the victims.

So wait a minute.

I thought you said that the deadly weapon was a stick.

The deadly weapon was a stick.

That comes later.

But he comes out of the house with what looks like a gun and pulls it up and points it right at the victims as he's walking forward.

Is the person holding the camera or the cell phone video, is that one of the victims?

It's a surveillance video.

There were lots of videos involved, but this particular video, which was what the original discovery was, showed my client was a surveillance video that they had put on the house.

Was there any audio on it?

There was no audio.

And it shows him pointing a gun and coming towards people.

Coming towards the people.

And then those people tackle him, get the gun from him.

Then the video shows him going back in the house and coming back out with a stick.

And that stick is what was allegedly swung by my client at them, but that did not really show on the video.

And apparently he's saying, I'm going to kill you.

I'm going to kill you during all of this.

What does the police report read then?

How does the police report read?

Basically, along those lines, that they were having a dispute and that my client had allegedly gone up to the front gate where there had been a lock that he was tampering with.

He supposedly put glue on it in a previous date to stop them from being able to open up the gate.

And that they then said they came out to confront him.

And then he then went into the house, got the gun.

It was a fake gun, but at the time it looked like a gun.

And came out pointing at him, threatening him, and then picking up a stick and swinging at him.

That was the basic gist of the police report.

So your client was like the aggressor there.

It totally made it look like he was the aggressor.

When you watch this video that was the original video produced to me, he totally looked like the aggressor.

And clearly at one point during all of this, he had been aggressive.

I mean, it was caught pretty clearly on video, him coming out of the room, pulling up a gun and pulling it out in front of him, walking towards the people.

And it was a third striker.

So it looked pretty bad when I first got it.

So the gun didn't stick, but the stick stuck.

Yes, exactly.

I like what we're saying.

Exactly.

Well, I was thinking out, when you can't fix your problems with a gun, get a stick.

That's right.

You know.

And all right.

So you get the case.

You really look at the charges.

And I guess, what, you go meet the client?

I do.

I go meet him.

And he's pretty adamant that these guys are jerks, that these family are just bad, bad people.

And he's not an unreasonable guy, very easygoing.

And, you know, I'm trying to talk straight with him right away, saying, look, you know, this is a life case, potentially, even though, you know, there was no gun actually used with your strikes.

You need to think about trying to settle this case if you can.

And I was pretty nice with the guy.

And I kind of believed him.

And I'll tell you later why I believed him pretty early on.

But I wasn't going to hammer this guy to take a deal.

But I did want him to understand the potential consequences.

And, you know, I always tell my clients, there's a point where you're going to come at the end of the trial, after I've given my closing argument, where that jury's going to come in.

And as much as I like you, I can't protect you from being that guy sitting in the defendant's chair at that moment within that hot seat.

So, you know, I let him know what was up, but I didn't get any arguments with him about it.

And there wasn't much of a deal yet on the table.

And we really didn't even get to that point right away.

So we just generally talked about what I needed to do to get ready for the case.

What did your client say then?

Well, he basically started talking about that there was a video, another video that I needed to see, which turned out to be one of about 15 videos.

But that there was a video that I needed to see.

And so we put the case over before the preliminary hearing a couple of times, and I got the video.

What kind of a video was this?

Was it a different surveillance video?

This was a video from about two days before he got arrested on this case.

And it showed the family, who had presented as the ideal prosecution witness, this nice, salt-of-the-earth family, victimized family.

And it showed them just acting like absolute thugs to my client and to his wife, pacing back and forth in front of their house.

And I'll go into that a little bit.

This is the same day?

No, this was two days beforehand.

Okay.

But they were calling his wife a whore.

They were threatening him.

Then if they came out, they were going to beat him up.

They were just horribly threatening.

And my client, but it's all mostly in Spanish.

This is video of the victims?

This is video taken by my client's wife of the victims.

So this was not another surveillance video, was it?

No, this was a cell phone video taken by my client's wife from a couple days beforehand.

Okay.

That showed them being completely obnoxious and aggressive towards my client.

The one thing about that video is that my client did make some very self-serving statements on that video.

He kept saying, I feel threatened.

I feel threatened.

I feel very threatened right now.

Well, maybe he did.

And then all the things that they were saying were in Spanish.

Okay.

And so until I got the Spanish to English translation, it just looked like my client was setting up this ridiculous self-defense.

But then once you actually got the translation, you understood why he was kept saying that because they were threatening him.

They were threatening him over and over again.

What were they threatening him with?

Like, just wait till he comes out here.

He can't even get out here to go to the bathroom because they shared a bathroom.

And basically threatening that they were going to beat him up.

I don't know they actually used those words, but that was the clear meaning of it, which is that we're going to beat you up.

And why is there any – why are they having beef with his roommates, I guess?

Like, what's the problem with this harmonious living situation?

Right.

Well, yeah.

I think it's pretty clear that they were way past that point.

And they wanted him out.

And I believe that they had actually tried to get him evicted at one point and were unsuccessful with that.

So this was two families that needed to separate long before this happened.

And the police had been out there three or four times before this for various disputes.

And they needed to break up.

And they hadn't.

And so that was the problem.

My client didn't have much money.

You know, they didn't even have a car, my client and his wife.

And so they were – it was sort of sad because you see how people get trapped in these situations.

I mean, someone with more money clearly would have probably moved out.

But they were sort of stuck there.

So they give me the video.

And as soon as I see this video, I realize, okay, he's kind of legit.

My client's kind of legit.

These guys really were harassing him.

And I turned the video over to the DA.

And I'm sort of thinking they're going to make him, like, a really good offer once they see this.

But no such luck.

And they're still well into the high double digits on, like, 15 years, something like that.

And what are you looking for?

Well, my client's ultimate answer to them was right before trial was he would take up – he was going to take four years.

He was willing to take four years right before trial, which I thought was a reasonable offer on his part, especially given the further things that came out.

And they were still in the double digits.

And what other type of work did you do on the case then?

You interviewed the wife, I guess, right?

I interviewed the wife.

And, you know, she was not a super soft-spoken woman.

I had some hesitancy about calling her as a witness.

But she was available.

I mean, there wasn't a lot more to it in that case as far as legal motions or anything like that.

It was pretty much going to be a he-said-he-said situation, except that we did need to have all the videos because there wasn't just these two videos.

It turns out these people had this place wired with many cameras.

And that became more and more of an issue as the trial went on.

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What was the threat again with the stick?

What did he say specifically?

Well, he said multiple times while holding the fake gun, said, I'm going to kill you, according to the victims and according to the police report.

So that was the threats.

The assault was not with the gun because it was just a BB gun.

But the victim was claiming he had swung the stick at him five times.

So is that a different charge, an assault with a deadly weapon charge?

Yeah.

So there's one count of assault with a deadly weapon and three counts of threats against the three victims.

So he only swung it at one of the victims.

The father, I guess?

No, the son.

The son?

The son, yes.

Augustine, who was a punk.

Well, let me ask you this.

What about the preliminary hearing?

Did you have a chance to talk to the victims or the complaining witnesses?

Yes, the complaining witnesses did show up for the preliminary hearing.

And like I said before, they came in just putting on the show as the perfect victims, the scared appropriately, salt-of-the-earth victims.

And I already knew by then the way they'd behaved in the previous video.

So I really didn't get a good read from them.

I did not like them from the very beginning, especially the one son, Augustine.

He was not – I mean, he was a punk.

He was a punk in the video and he was a punk on the stand.

And I have to say that – well, I'll talk about it when we talk about the trial, but he – I reacted to him more than I usually do to a witness, his attitude.

And in my cross of him, I was – well, I should wait on that, I guess.

Well, let me ask you this.

You said that there's all these other videos that came up.

Did you get those before the preliminary hearing?

No, I did not.

And at the preliminary hearing, I had already provided the transcript of my video, but the DA, who was a baby DA doing the preliminary hearing, made a big deal that there was a discovery violation on my part because I hadn't turned over the actual video before the preliminary hearing, which I'm not required to do.

There's – you know, the defense absolutely has no obligation to turn anything over before the preliminary hearing.

And it turned out to be sort of fortuitous that they made a huge objection about me not having turned over the video because later on, when they started having these last-minute videos, the judge did something that I don't think I've ever had in another trial.

She actually excluded their subsequent videos for late discovery.

Oh, wow.

They were – they made – because they just backed them – they were – they just looked so hypocritical.

They were complaining that at the prelim, I was just giving them a video.

And then during trial, they were coming up with new videos.

I have a question about the gun.

Did they ever – did the police ever recover this gun?

Because I think you referred to it as a BB gun.

Right.

The victims – and maybe I should have been clearer about this – when the victims, alleged victims, grabbed my client after he pointed the BB gun at them,

they managed to take the BB gun away from him.

And so they turned it over to the police once the police got there.

So – and when the police got there, they arrested everybody.

They arrested everybody.

The complaining witnesses were arrested?

They arrested all three of the complaining witnesses as well as my client.

And then their brother is the one that brought the video out.

So he chose the very particular part that would help them out of that – of all the videos they had,

which is why it came out looking so bad for him.

Was there a 911 call?

The 911 call was from my client's wife.

Oh, she called the police.

She called the police.

That's right.

Was she arrested too?

She was not arrested.

The pregnant woman?

She never came outside.

No, no.

So –

All right.

Well, let's talk about this.

So now we're – I mean, we're kind of just – we're going to trial, right?

But you're – are you trying to – I mean, it's a three-strikes case.

It's pretty serious.

Right.

Are you trying to resolve it or –

Right before trial, we again made a four-year offer to them, and they rejected it,

and they came back with 10 or 11.

So we got – so it was still a real three-strikes case when we got sent out to trial,

and we got sent to judge's court.

It was my first time there, and I love her.

Okay.

I – you know, I just – it was my first time there.

I absolutely adored her.

She gave me a – she wasn't pro-defense, but a completely fair, easy-to-do trial in her courtroom.

So she gives you a fair trial, huh?

She gave me a very fair trial.

So, Carl, what's the defense then in your case?

It's self-defense.

Okay.

It's clearly self-defense case.

Why?

Well, okay.

So now I've got to talk about the other videos.

Because you knew going in it was going to be self-defense, right?

I did.

There was no question about it.

Okay.

And it is always hard to get a self-defense instruction when your client doesn't want to testify,

and I knew that that was an issue.

But we had videos in this case, and right before trial, I think – I'm not sure if it was during jury selection

or right afterwards, the victims came in with some new videos, which further helped the self-defense.

And it was a video that had pointed the opposite direction of the original video that I had.

And it was just very clear to me that my client was not the primary aggressor in this situation.

What did it show?

First of all, it showed the one son, the one that I disliked so much, approaching my client in a very aggressive fashion.

And my client was holding an umbrella.

It was raining outside at the time, and he was holding an umbrella, and he's facing towards the camera.

And this is before he's gone inside to get the BB gun.

He's facing towards the camera, and just all of a sudden, you see him have this very defensive reaction,

and you see the fist of the one son coming up for a moment.

So he backs away.

So that's the first physical action that you see of anybody, and the first thing of violence is by Augustine, the one son.

He swung at your client.

He swung at my client, and my client backed up.

So the video that – the first video you're provided where he's coming out of the room with the gun in his hand,

was that edited somehow so that it didn't show, you know, the 5, 10, 20 minutes before?

All of the videos that were provided by the prosecution were clearly edited by the family members.

They had clearly gone through and cut and pasted those versions that were not helpful to them.

And the most egregious one was that in the video we got right during the trial, it shows before anything else happened,

it shows my client walking up to the gate where the lock was,

and then all of a sudden there were two minutes missing, and it just skips ahead for two minutes.

Well, that's not important.

I'm sure it showed nothing that was important at all to the case.

Yeah, and so they were clearly trying to just show the portions that were helpful to them.

I mean, there was just no question about it.

But even in the version they gave us, the one son, Augustine, clearly started it.

And I do want to step back.

The other reason I was so confident of this, and this is part of why I ended up disliking this victim so much,

is on the date two days earlier.

Well, you keep calling him a victim.

You're right, I do.

He's a complaining.

The liar.

He's a lying.

Complaining liar.

And I actually called him a punk during my closing argument, which is a little unlike me.

But he's in front of the room at three in the morning two days before,

and he did this movement that was the most punk-like movement I've seen.

He held his hands up, and you know how a bird will kind of bob its head up and down

and then side to side without moving its body?

That's what he was doing to my client.

He was holding his hands up and moving his head back and forth in front of his room at three in the morning.

Outside of his door?

Was the door closed or shut?

He was filming it through the sliding glass door open, I think, yeah.

My client had his door open.

Oh, okay.

Were there any cameras inside the house, or were all the cameras on the outside?

All the cameras I was aware of were on the outside, right.

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Okay, so go ahead, Anya.

You want to ask them about jury selection?

Yeah, so now you know you're going to be doing the trial.

What kind of jurors are you looking for?

I don't think there was anything in particular in this case.

I did want to make sure that everybody, that the jurors understood the concept of self-defense and that they, none of them had a problem with it and wanted to make sure that they'd all had to fight at some time in their life.

You know, that some, whether it was in grade school, I asked them, like, going all the way back until you were in first grade.

Is there anybody who's never been in a fight?

I just kind of felt that that sort of thing is important, that people understand that these things happen.

Had everybody been in a fight?

You know, I've had cases where I've asked that in self-defense and there was hesitancy.

Everyone in this case immediately said, yes, yes, we've had a fight.

Everyone admitted that at some point in their life they'd had a fight.

Wow.

So, yeah, so that was helpful.

Rowdy group.

Yeah, yeah.

So, it was not, it was, I did not feel that there was anything particularly scandalous about anything in this case.

I did know my client wasn't going to testify.

So, I had to cover that.

But this was just sort of, I felt like a standard, you want the fairest jurors you can.

I did not feel there was anybody, anything that was going to, that I had to be worried about or kick any particular type of jurors.

So, it was pretty standard.

Was there any sort of 402s or motions in limiting?

Well, then there was the issue with the new tapes.

Yeah, so I found out about those tapes at some point before opening statement, but right, right before opening statement.

And so, yeah, how's it go then?

It's like you selected a jury, right?

Or we're in the middle of it.

And then you get all these videos all of a sudden?

And the DA says, I've got more videos.

Oh, but wait, there's more.

Yeah, yeah.

I've got another one.

But wait, there's more.

So, how many more videos did you get?

I got two.

I got two additional videos.

Wait, Anya, is this when you come in?

Where did you start following the trial then?

I know you watched the video, the cell phone video from my client's wife.

That's the one I saw.

I know you watched.

And it was pretty bad, that video.

They were, these alleged victims were pretty aggressive in that video.

Oh, I definitely thought that the victims were aggressive.

And not knowing about the other video, that was the only one I had seen.

I was thinking, oh my God, your client, your poor client.

He's such the victim in all of this.

And he really was.

He really was.

He was living in this little room in a rented house with this family who were harassing him

night and day.

And he's got his pregnant wife in there.

It was really pretty awful what they were doing to him.

And they vastly outnumbered him.

I think there were at least six people in the other family living in that house.

So the main 402s were dealing with the two brand new videos that they dropped on you.

Right, right.

In the middle of this trial.

And the one that was kept out, it wasn't all bad.

It was, but it just messed it up a little bit.

You know, it was.

So start then from the beginning.

I mean, you get these videos from the prosecutor.

Right.

What do you do then?

Well, I take them down to my office and I watch them.

And I see that one of them is actually, you know, they were trying to edit it to make

it look as good for them as possible.

It was clear it was edited by those two minutes missing.

But it also showed a key piece of defense evidence, which is it showed the father of the other

family walking over.

And while my client was in the room arming himself with the BB gun, it shows him picking

up a stick, a big four foot stick, not the same stick my client had, a big four foot stick,

and start walking back over towards my client's room.

And the prosecution in their opening statement said that made it sound like my client had in

this, that they were all just done and they were going back into their house.

And indeed, when you watch the first video, that's what it looked like.

And that's what everybody commented on was that this was done.

And then he came back out.

And that's what it looked like from the first video.

But when you had the other video pointing the other direction, you could see this wasn't

done.

He was arming himself and he was coming back running towards my client.

And that was the key part of the whole case.

And they also, they all live under the same roof.

All under the same roof.

But they take it outside like they're supposed to.

Right.

Well, that's true.

That's true.

That's the way to do it.

No fighting in the house.

That's the way to do it.

No roughhousing.

Right.

Let's take this outside.

Boys, boys, boys.

Outside with it.

Out, out, out.

Everybody.

Everybody get your own sticks outside, please.

Outside now.

Yeah.

So you see some good, I guess, some good defense, exculpatory information on the video.

What do you do?

You go back to court and what do you do then?

I go back to court and say, well, there's two videos and one of them, one of them we don't

have any problem with.

It's from the same date.

But the other one, it's late discovery and it's clearly edited and they made such a big

deal about late discovery at the preliminary hearing two and a half months ago.

And now they're coming up with last minute videos.

And to my shock, the judge kept them out, kept the second video out, which almost never

happens.

I mean, I don't think I've ever had a judge keep a piece of prosecution evidence out for

late discovery.

So your girl came through, your favorite judge.

My favorite judge.

So did you give an opening statement?

I did give an opening statement and laid it out fairly clearly that it was self-defense.

And by this time, I did have both of the videos.

And I had a law clerk working with me, Alexis Weitzner, who was genius.

Um, she had taken the two most important videos, the one pointing towards the, um, back of the

house and the one towards the front of the house.

The original video, which showed my client very aggressive looking, moving towards them and

lined up perfectly on the same screen with the video, with the timestamp of the video, which

showed the father grabbing the stick at the same time.

So I did play that during my opening statement.

And so it was very clear what our timeline was from the very beginning.

We didn't hide anything.

It was, he was being harassed.

This is the, uh, timeframe.

And you can see that it was not this unprovoked attack.

They're saying it was.

I mean, the self-defense is that, I mean, your client goes downstairs and outside with a BB

gun.

Did something happen prior to that, that provoked it?

Yes.

Prior to my client going into the room, he was confronted by the two sons.

Okay.

And that's when the one son made the movement towards him that looked like it was almost

a punch.

Okay.

And then what the video showed was that they then blocked his path to get back into his

room.

And my client kind of had to dance around them to get back into his room.

So those, those fat, those things all happened before my client went in and got the BB gun.

Okay.

And then he goes downstairs, well, it's not really downstairs, but it's back outside.

It was back outside and then charges at him or not charges, but walks aggressively towards

him with the BB gun.

They disarm him.

Exactly.

And then, and they don't just disarm him by the way, they tackle him and punch him and

kick him and punch him again.

And it's quite, if that's the only part you're watching of the video, it's clear my client's

the victim.

And they really went after him after he came out with the BB gun.

So it was three on one, three on one.

And the one, the one kid who I particularly disliked at one point did a full on, uh, place

kicker kick on my client's back while he was on the ground.

Beat up and kicked.

Then he goes back inside.

Then comes back out with a stick.

With a stick.

Right.

And the father already has a stick.

The father, the father had a, yes, the father already has a stick.

And, um, at this point, the punk punky ones claims that my client swung the stick at him

five times.

That's what he said at the preliminary hearing that he swung at him five times.

And, um, in the subsequent video we get, you can see my client much clearer during that

period of time.

He never swung the stick at him, never, ever swung the stick at him, not even once.

So, uh, he, he raised it up one time, but never swung it at him.

And that was, that was, he was impeached by that at the trial.

And what does the father do with the stick when your client has his own stick?

Is he making threatening gestures with it?

I don't exactly know if he'd put the stick down at that point or not, but one of the brothers

also picked up a long skateboard and was holding it up in the air while my client, when my client

came back out the second time.

So there were at least two people with, uh, well, there was at least the one son with a

skateboard when he came back out.

So they, they kind of each had their own weapons.

Dad has a stick.

One of the sons has a skateboard and I'm assuming he's not standing on it like he's writing it,

but he's holding it like it's going to be a weapon.

Absolutely.

Absolutely.

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And yeah, I know we, I think we left, I know we digressed a lot, but I think we got a lot

of good information just now.

What's, so let's start, let's pick up with the opening statements.

Okay.

So what was the prosecutor's opening statement like?

The prosecution told it like it was a very simple story that they had had some kind of a disagreement

and that my client had gone out and was messing with this lock and that the, when he was confronted

about it, he ran inside and got it and, and armed himself with a gun and he kept calling it a gun

to throughout the trial, he kept saying gun, gun, gun.

And I kept objecting and I, and those objections were overruled every time I made it, but I continued

to make it because it needed to be brought home to the jury over and over again, that this was not a gun.

And then the prosecution further said that after this original altercation that my client had come

out and the family was all done and they were going inside and this was all would have been over

with except for my client had to come out with that gun to attack them.

That was their story that they went with in their opening statement.

And, um, I was already ready with the lined up videos to immediately say that that was not a true

story.

So in my opening statement, I'm like, this is not true.

What they're telling you is not what happened.

And let me show you.

And they played that video from the very beginning with the side-by-side videos to show that they

were not going inside very peacefully and, um, that they were, they were going to continue

this.

So.

All right.

So then let's talk about the evidence then.

Uh, who's the prosecution put up first?

They put up, uh, the father first and he was a gardener, Spanish spirit.

Very gently spoken gentleman was using an interpreter and, uh, came across on first blush as a salt

of the earth, hardworking middle-class guy, just trying to raise his family.

Just, just came a beautiful presentation.

You know that story.

Yeah.

Yeah.

It's a good one.

Yeah.

Apparently the, the part about him having his own stick wasn't coming out yet.

Right.

Right.

Because we know, we know him.

Yeah.

We know this guy.

He's a good working man.

He's a close, good father.

I mean.

Right.

Right.

But.

I mean, you got to think like father, kids that get in fights with their father to beat

up other people.

They're, they're pretty, that's gotta be a very bonding type of experience.

That's right.

That's a good, wholesome family.

It is.

Male bonding.

Family that fights together.

They stick together.

The family that sticks together, stick together.

So he's saying he's like, you know, down to earth, you know, working class guy, you know,

trying to pay the bills for his kids and family.

And, um, he started to talk about how my client had started after he came out with this gun

that he was threatening them, that he was going to kill him.

And he was quite clear that when he came out with the gun, he was going, he said, I'm going

to kill you with the BB gun.

So when I'm crossing him, I asked him about the initial punch that his son had thrown.

And he immediately started to get a little bit nervous about that because he realized at

that point that he'd, the only thing that would have justified that was my client's threats

and that he had already testified that he never threatened him until he came back outside.

So suddenly his story changed during the trial.

And suddenly he's saying that my client made these threats before he went into the house.

Did his demeanor change when he changed his story?

His demeanor didn't change exactly, but he said something that was very arrogant, that

was very inconsistent with what he had said up until then.

Because when I confronted him with the very clear statement that he'd previously made that

my client did not threaten him until after he came back out with the gun, he said, well,

I'm sorry you misunderstood that, which I thought was pretty hilarious.

I mean, you know, it wasn't, I'm sorry I said the wrong thing.

It was, I'm sorry you misunderstood that.

When he first testified, he said your client did not threaten anybody.

Until after he'd gone into the house with the gun.

When he first testified, he said that my client only said, I'm going to kill you once he came

back out of the house with the gun.

What was it that you said that made him change the story?

Well, I started to question him about the fact that his, his son had done, tried to punch

my client before he went into the house.

And suddenly he needed to protect his son.

So he had to have a reason why.

Why his son would have, um, made a swing at my client.

So now your client had threatened the son.

Right.

Okay.

So suddenly this threat happened before he went into the house.

And, um, so.

So that's when he started to turn a little bit, right?

You can show his true colors a little bit.

Exactly.

Exactly.

And, uh, he started to retreat to a lot of, I don't know, his, I don't remembers at that

point.

And his testimony kind of went downhill after that.

And he did not look as much like the innocent guy that he was portraying.

Plus in the video from the cell phone from two days previously, he made some absolutely,

uh, non, not, not nice statements to my client and called his wife a whore and threatened them

and, uh, made, because it wasn't just the son that was talking during that video.

It was him as well.

So that started to go, that image started to crumble a little bit when we played the

cell phone video as well.

So you played the video of him cussing out the wife or calling her a puta or something

like that?

I did.

And how was his reaction?

Puta.

I think that's probably it, right?

Is that the word?

No, no.

Actually, it was a different version.

It was specifically, he called her a streetwalking prostitute was the actual words that he used.

I don't know how that translates.

The translation?

But it wasn't just puta.

It was a streetwalking prostitute.

I remember that clearly.

I like how David is, is entering his own, uh, subtitled soundtrack.

Right.

So then, wait, I'm sorry.

What was, you said, what was her reaction, his reaction to the, to him calling her street

walking wise?

Right.

Well, I mean, he, he didn't, what could he really do at that point?

What could he really say?

He did not have much of a response to it.

And, uh, so I think his credibility kind of crumbled at that point.

And, and then of course, when I played for him, the video of him charging with the stick,

he didn't have much to say about that either.

I mean, it was pretty clear.

It was sort of spoke for itself.

So that must've been very satisfactory to just kind of, you know, to start off with this sweet

little old man and, oh, I'm so scared.

And then you just shut him down with these videos.

It was, but it wasn't nearly as satisfactory as when, um, Augustine got up.

That was what, that was the punk.

And that was, that was the next witness.

Okay.

You know, as a defense attorney, you're supposed to be very careful before you say that somebody's

a liar.

And we all, at least the way I've been taught is, you know, you want to be very calm and

professional and let the, let the contradictions speak for themselves.

I just couldn't do that with this kid.

I just did not like this kid.

Did you wait till after he at least swore the oath to tell the truth?

No, I was spitting the second he walked in.

He was like, he swore to tell the truth.

Bullshit.

Bullshit.

Exactly, exactly.

Liar.

Liar.

Liar.

And.

Objection, liar.

You know, we talked about, uh, good cop, bad cop between Anu and myself.

Well, with, when I did speak, I'm going to skip ahead, but I did talk to the jurors afterwards.

Okay.

And I do pride myself in trying to have sort of a Matlock demeanor in court, easygoing, nice

guy.

But I was so, I was so, I was so amazed because one of the jurors afterwards said that I was,

uh, extremely, um, abrasive.

And I was sort of proud of that because, because I was with this kid.

I just, just.

You wear that, Brad, you wear that badge proudly.

Yeah.

Yeah.

Yeah.

He, he, it was just so clear after talking to my client and listening to him that this

kid was causing trouble and that he'd been harassing my client and his wife for so long

and that he was going to get up and lie.

And, um, he, you know, he handled himself reasonably well on the stand as under the, what he had

to be crossed with.

But.

Well, tell us about it.

What happened?

How, how, what did he say with the DA?

The DA, he went through the basic story.

I, I really, you know, it was just the basic story, but he, he, the one thing that he told

the DA that was, uh, that I particularly paid attention to was he repeated the claim that my

client had swung the stick at him five times.

And, uh, so the first thing that I did in the cross-examination was play that portion of

the video when he, when, after he came back out with the stick and, um, gave him an opportunity.

And it went on for probably three minutes and, um, said, just tell us, tell us when you see

the swings, let, let us, let us see the, tell us which part of this show is the swings.

And of course there were no swings.

Is this you being abrasive or sarcastic?

I think I'm a nice guy all the time.

Okay.

I don't know exactly what the jury thought of, but, um, you know, it was, I mean, when you

hate somebody and it's, it was just funny.

I just, just this kid, because he looked so perfect.

He looked so like, he looked so easygoing and perfect and, and, and you knew everything

he said was a lie.

And so it just, it just really got to me after a while.

So that's what you're doing.

You're playing the video and you're like, let me know, let me, let me know when the swings

come so I can stop.

Right.

Exactly.

Exactly.

And the swings never came.

And, and the judge did give us a lot of leeway in playing the videos however we wanted.

We wasn't just like playing one time through.

I was allowed to start and stop it over and over again.

And so I'd stop.

Well, is there a swing here?

What's, what is the, okay, well, let's go.

Is there one now?

And so just, it was a lot of fun and he had nothing to say about that.

Well, you became the bully, huh?

I was, I was, what is the, abrasive with this kid.

You were abrasive.

I was abrasive with him.

I mean, you're, you're kind of a big guy, Carl.

How tall are you?

6'4".

6'4".

But I'm a, I'm a, I'm a puppy.

I mean, I really am in my demeanor and core.

An abrasive puppy.

Yeah.

Apparently, apparently.

And little sweet Augustine, how old is Augustine?

You say he was 20?

Young, young.

How big was he?

Like, uh, he's probably 6'1".

Oh, okay.

He can handle himself.

Yeah, yeah.

And he was, he was, um, he came to court dressed in sort of, um, athletic type apparel.

I mean, appropriate apparel, but he obviously thought of himself as being kind of a jock

or something.

And, uh.

How, uh, that reminds me.

How big was your client?

My client was probably 6'0".

Okay.

Had a little heft on him.

Okay.

So everybody's about the same size.

Everyone's about the same size.

Yeah.

And, um.

A bunch of big parties to this action.

Parmix?

Six foot?

That's pretty, I mean, that's.

Well, that's why they had to take it outside, David.

That's why they had to take it outside.

They've got low ceilings in this place.

You know, for me, though, everything between 5'5 and 6'0 is 6'0, so I don't really know.

I'm not a good judge of it, so.

Uh, okay.

So then, so you do the video with Augustine.

He has no answer for that.

What's the DA's attempt for rehabilitating Augustine?

Did he try to rehabilitate him?

Or did he just throw his hands up in the air?

You know, honestly, I don't remember.

There wasn't much, obviously.

Was the DA just doing, like, sticking his head in the ground type prosecution here?

No, he did an admirable job.

I think he's a young DA, and I kind of thought he would be a little greener than he was.

He was liked by the jury for the most part, I think.

But he just didn't have the facts.

I mean, it's just, there was only so much he could do.

And, um, he, and he backed himself into the corner with the statement that this was all over.

And, and the one, the one part of this that he really backed himself into a corner with was that it was clear that the victims, alleged victims, did not think that my client should be out in the patio area.

They saw that as their area, even though it was a shared house and a shared patio, he thought that they, they all made it like he needed to stay in his room.

And those were the taunting things that they were saying to him, stay in your room, you're going to get in trouble if you come out here.

And the DA made a mistake in his closing by saying, well, if he had just stayed in his room, then that none of this would have happened.

And so that, that just made it look like he was joining in their bullying in a sense.

So, so after, uh, Augustine, there was another son that testified?

There was another son and he had some minor contradictions.

He didn't, I don't think he added a lot one way or another.

Which one was the one who had the skateboard?

That was, that was Augustine.

Oh, okay.

That was Augustine.

And, um, the other son kind of gave another version and there were additional inconsistencies about when the statement of I'm going to kill you came out.

So then now it's time for the defense.

Now it's time for the defense.

And the defense was one witness and that was his wife.

And your client's wife.

My client's wife.

And I debated quite a bit whether to call her or not.

And in the end, in the end, it was clear that I made the right choice in calling her because she was brilliant.

The wife testified and the first issue with her was what to do with the newborn because she did not have childcare.

And the kid was too young for any childcare in the, I guess we don't even have that anymore.

But, um, so I had to search the office for someone who was willing to, uh, watch the baby while she was on the stand, which I came to realize that we do not have a lot of baby lovers in our particular office.

What about, what about bad cop over here?

Uh, I, I, I'm not going to, I'm not going to drag her into this, but, uh, there was no one who was willing to do it.

Anya is probably not somebody's first choice for childcare.

So what did you end up doing?

Well, I did finally find, uh, one of the, uh, one of the secretarial staff willing to come and watch her.

And that was beautiful because she was out there with the newborn and the jurors are all seeing the newborn baby out there and seeing the transfer.

So that, that was, that was, uh, home run number one with her is just the fact that, um, and then she got on the stand and, um, the whole issue about why he went outside that night where they were trying to make it like he was up to no good.

And she gets up and says, yeah, we were up watching a late movie and he wanted to have a cigarette and I don't like him smoking around, didn't want him smoking around me because I was pregnant.

Was just beautiful in terms of humanizing him and making the whole thing seem much more innocuous.

And, um, and then she just gave her version in which she basically said, I was right there.

I was watching the whole thing.

He never threatened anybody.

He never threatened to kill anybody.

So, um, so that, that was, that was the whole defense case was her getting up to say she never heard him threaten to kill anybody.

But did she describe the whole fake, the, the, the fake gun incident, the stick incident?

She did.

And she did say that she tried to stop him from going out because she'd already called the police and she didn't want him getting hurt.

And that was the reason she tried to stop him from going out, which, which cleared that up pretty well.

I thought, and really more importantly, I think humanized my client as a nice, you know, a new father.

So it was the, just the wife, the one defense witness, and then you were done.

Then I was done.

That was it.

That was the whole, the whole trial.

And then we came to having to discuss the jury instructions.

Okay.

And, um, there was a little, there is a little wrinkle in the jury instructions was not very helpful for my case.

I, I had the videos and I had a good judge.

So she was going to give the self-defense instruction, but a threats charge of 422 is not listed as one of the offenses, enumerated offenses for self-defense.

Now it's completely absurd to think that you would be allowed to hit somebody, but not be allowed to threaten to hit them in self-defense.

But there was a legitimate argument the DA was making that she shouldn't give it for the 422s, the threats charges.

And I got real nervous about that.

And we had to argue it for a couple days.

And I was trying to already prepare my closing argument for not having that in self-defense instruction for those counts.

But in the end, she gave it for all of the counts.

The judge gave the instruction for all the counts.

Okay.

But you also had the defense that he didn't say the threats too, right?

There was, there was.

That was a secondary defense.

And I, I argued that as well.

And indeed, the jury did not believe he'd made the threats.

They did not believe the witnesses in saying that he made the threats.

And then.

What about the DAs?

What was the DA's closing argument like?

Well, the DA's A argument, again, brought up the fact that if he had just stayed inside, this was all over.

Right.

He didn't need to come back outside.

So he wasn't acting in self-defense.

And I did jump on that in my argument and say, said, they're doing exactly what the alleged victims were doing to him.

He's part of this now, trying to say, you've got to stay hidden in your room.

And think about what that was like for him and his pregnant wife, sitting in that room with these people out threatening him.

That's exactly what they were saying to him.

And that's not the case.

He had the right to go outside.

And then the jurors deliberated for how long?

It was short.

Like, I think two hours possibly.

Did they have any questions at any point?

Yes, they wanted to see the videotape that Alexis had put together so well.

That was the one thing they asked for.

And that made me very happy.

Because when you watch that, it was clear when you watch that what was going on.

And they came back.

And I think I told you earlier that I had told the guy about that moment when you're sitting there waiting for the verdict that I can't protect you.

And I just loved him for this.

He turned to me at that moment and goes, this is that moment you were telling me about.

Isn't it?

Like before the verdicts came, he said that.

When we're sitting there waiting for the jury to file in, he goes, this is that moment you were telling me about, isn't it?

So it made me really happy that he'd listened to that.

How was your client during the trial anyways?

As easygoing as you could possibly be and completely prepared for a guilty verdict.

He was a very mature guy who had mentally prepared himself for the possibilities it could be a guilty verdict.

Was obviously not feeling he was guilty, but just as good of a client as you could have.

And after he was released that night, he sent me a text at home with his newborn baby.

Met his newborn baby for the first time that night.

So that made me feel really good.

So then you talked to the jurors afterwards?

I did.

I did.

And they did not believe the family about the threats.

And like I said before, the one juror in particular found me very abrasive, which I'm going to keep repeating because I was very proud of that.

Like, did she say that in a good way?

Like, you're abrasive or she didn't like your abrasiveness?

No, he was like, I want you to know you were very abrasive and I was more likely to vote guilty because of your abrasiveness than not guilty.

But I was convinced he wasn't guilty.

But he did not like me.

Wow.

That's crazy.

You know, I imagine it was a female juror.

No.

I said she, but you're like, it was a he that didn't like the abrasiveness.

It was a he that thought I was very abrasive.

And you're like, I thought you were in a fight earlier.

Didn't you raise your hand?

Yeah.

Right, exactly.

And how big was your stick in the fight?

Yeah.

That's great.

So then your client was elated, right?

He was happy.

He was absolutely elated.

And hopefully, I've heard nothing bad since then.

So hopefully he's...

Did he move out?

The wife had already moved out to a much nicer place with a pool.

So he moved in with her and not exactly...

Haven't heard from him for a couple weeks now, but it was great.

It was just a really nice feeling.

And he was as easygoing and cooperative of a client as I've had.

Well, that's awesome.

And you saved his life because he was facing the possibility of life in prison.

Right, right.

All right.

Any other questions?

No, I think that's good.

Okay, Carl.

You're going to edit me real good, right?

You know how...

You make me sound smart, right?

I will.

Don't worry.

Don't worry.

We will.

We will.

We may have to edit down the 20-minute episode just to...

And mostly banter between me and David.

Yeah.

But, so Carl, how long have you been a public defender for?

30 years.

And why did you want to become a public defender?

Well, you know, our new public defender came into our office and asked this question of everybody

in our branch.

And everyone gave very highfalutin answers to that about public justice and stuff.

And I said, well, it's because when I was in high school and we'd go out drinking at the

lookout point, I didn't like the pigs coming up and harassing us while we were drinking.

As good as reason as any.

I'm going to stick with that answer.

That's awesome.

Nice.

Okay.

Well, thank you for your service there.

Thanks, David.

Thanks, Anya.

Thank you, Carl.

Thanks for being on the show.

It was fun.

Yeah.

Thanks for sharing.

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.