Scat Burglar – When the State's Case Goes Down the Toilet

Here at Another Not Guilty, we appreciate your support. Don't forget to subscribe or follow us. And please visit our website at anothernotguiltypod.com. Do you have a not guilty story you'd like to share with ANG listeners? Visit our website to submit your info to be a guest. That's anothernotguiltypod.com. Now, without further ado, here's this week's episode of Another Not Guilty. Opening statement is one of my favorite, if not my favorite part of the trial. I like going big.

An opening statement. I like over committing, promising things I'm probably not going to be able to deliver. And just, I think it's just the best way to get in people's mind that like, no, we are here for a reason. You are going to vote not guilty. You are going to examine every single thing the government puts in front of you and be really skeptical. And I think the only way to really do that, and impress upon people the seriousness of their, their duty as a juror is to

to open big and open hard. Welcome to 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-guilties public defenders get on a daily basis. In an unjust criminal system. With a deck stacked against us.

Another not-guilties.

Another not-guilties.

All right. Welcome back, everybody, to Another Not Guilty Season 4. Your boy, David D here, bringing you the freshest not-guilties across America. Co-hosting today, guys. I got a special treat for you. It's been a while since we've heard from him. You know, he's been busy in the trenches, being a dog, being a public defender, fighting for our clients. But a special treat for you guys. We brought the mooch back for you. Stephen, how are you doing today?

Doing great, David. Love to be back. Love to be back for another episode of ANG. Season 4, unbelievable. Can't wait for another great story.

I don't know. I mean, like, how—you know, the fans miss you. You only did one episode in Season 3. How did that happen? How did—what happened? The pandemic was just—you know, that's—people say the worst thing about last year was the pandemic. I say the worst thing about last year was not enough mooch.

Well, you got to question the executive producers, the fact that I was only on once in Season 3.

Well, I'm bringing you back because we got a special case today. We got an awesome guest, a public defender in San Francisco.

She did the first jury trial in the COVID era of San Francisco, and she's here to share that with us. Her name is Sierra. Sierra, how are you doing today?

I am doing very well. Thank you. Happy to be there.

Yeah. Yeah, this is great. This is going to be fun.

Okay, Sierra, so you—you did the first jury trial in the COVID era up in San Francisco, huh?

For better or for worse, yes. And not anticipating being the first, but there we were.

Right. You're just—you're just there to represent your client, that's all. You don't think about the clickbait of certain things or being on another Not Guilty or making the newspapers, right?

No, never crossed my mind. Although it also never crossed my mind that we would be the first jury trial to go out in San Francisco. So it was all sort of a surprise.

Okay. All right. Well, so tell us about this jury trial. What was the charge?

So it was a three strikes case, and my client was charged with a residential burglary. In San Francisco, we used the nomenclature hot prowl for the allegation. So the accusation was that someone else was home at the time that my client entered the apartment unit. So that's—that was the leading charge. He was also charged with a misdemeanor receipt of stolen property.

Okay. So it's a pretty serious charge. And you said it was a three strikes case, right? So 25 to life, looking at it, right?

Yeah, for quite a young man. So it was—it was a serious case.

How old was he?

My client was 31 at the time.

And how old were his strikes?

They were from when he was 18. So he had, what we call in the biz, a dump truck. When he was 18.

Someone pled him to two strikes right off the bat. So he was looking down the long barrel of 25 to life for any trouble he got into, basically, the rest of his life. So the deck was even more stacked against him.

He must have not had a public defender. It must have been a different lawyer. Say it wasn't a public defender. Please say it wasn't a public defender that pled him.

I invoke.

Not in San Francisco. It wasn't a San Francisco PD. I'll say that.

All right. That's what I thought. I thought.

Okay. So then, all right. So what did the police report read? What did your client allegedly do?

So the facts were pretty straightforward from the police report. This wasn't sort of a prolonged, detailed investigation.

But in August of 2019, the police receive a call from a woman who lives in an apartment building here in San Francisco.

And it's sort of one of those big 500-unit buildings.

And she says, you know, I think someone's been in my apartment. I'd like to report a burglary.

She didn't use the term burglary, but, you know, I'd like to report that someone was in here and they stole some stuff.

And so that sort of kicks off this investigation by San Francisco PD.

And she tells them, my daughter and I were sleeping in my bedroom.

I didn't see anyone.

I maybe heard something a couple hours ago.

Something woke me up.

But I actually just assumed it was my husband moving around out in the apartment.

So I went back to bed.

I've now gotten up.

Things are moved around in my apartment.

Some things are missing.

Also, someone has used my bathroom.

And it is horrific in there.

So actually, it sort of seemed like from her 911 call, her greatest concern was that someone had sort of destroyed her bathroom in the number two kind of way.

Yeah.

So this is what she's really concerned about.

Is there a special enhancement for that?

Because that does really seem like your privacy, your most sanctimonious place has really been violated if an unknown person used your porcelain god, I guess, in some ways.

I don't know.

Maybe a little vandalism on top of the residential burglary.

It's salt in the wound.

That's for sure.

Yeah.

That's a tough one.

That's a tough one.

Although it became an important fact later in the trial.

All right.

Good.

Yeah.

You can't let that go away.

Of course, you got to bring that up.

The DNA evidence.

Thank you.

Yes.

The DNA evidence that was never collected.

Never.

Oh, my goodness.

Because apparently, CSI is above it.

All they had to do was get a poop sample.

So, okay.

So this woman calls and says someone was in her home.

And it was an apartment complex, right?

Apartment complex.

Yes.

Okay.

What happens next?

You know, that goes through this sort of regular dispatch to somehow gets connected with security

at the building.

The security guard for this apartment complex and actually the complex across the street

gets wind of this 911 call and sort of has this oh shit moment.

Because he knows that several hours later, excuse me, before he had escorted someone out of the

building and he had gotten a call from a custodian who told him, you know, someone tailgated me

into the building.

I don't think they're a resident here, but I'm not sure.

But I don't think they had like a key to get in.

They seem to be waiting for me and then they followed me in.

And so the security guard earlier in the morning went to investigate.

He started doing what he called a top-down search where he went to the very top floor,

walked the hallways, sort of did this like circular search through the building.

He encounters my client on the second floor of the apartment complex and says that it looks

like my client is going through trash cans, has sort of trash spread out around him, seems

to be out of it.

He doesn't know whether he's mentally ill or high.

He just sort of says he uses this term, you know, altered mental state that seems to come

from his training.

And he's actually quite sweet to my client, very considerate, says, oh, you know, sir,

can I help you?

My client's not really able to answer in a meaningful way.

So he, you know, he told my client, you can, why don't you come with me to the front desk

and you can sign in or you can just head out.

But you need to come with me.

You can't be in this hallway anymore.

Oh, so he gets the call and then reflects, oh, you know what?

Earlier today, I escorted somebody out.

That's right.

Okay.

Yes, yes.

And while he was doing this top-down search, he said there was a door on the fifth floor

that was slightly ajar, sort of opened it a little bit, called out into the unit, didn't

hear a response, didn't, nothing seemed weird to him.

So he just closes the door and keeps going.

The speculation later was that that fifth floor door was the same unit that was the woman

who had reported the burglary.

So they both go downstairs.

My client leaves out the front door.

Security guard sort of doesn't think anything else of it until about three or four hours later

when this 911 call is made.

And that's when he has this, oh, shit moment and goes outside.

And my client is still in the area, right there, sort of in front of the building.

The police come.

The security guard directs them to my client saying, this was the guy who was in the building

earlier that I escorted out.

They detain my client, search him, and they do find belongings on my client that the owner

of the apartment says are missing from her and that she claims ownership of.

And so that's when they arrest my client.

And exactly what did he have on him?

It was sort of strange miscellaneous items.

There was a candle.

There were Bose headphones, sort of portable speaker, car keys.

And then sort of like miscellaneous is how it's described.

And it doesn't become any more clear at trial what might have been in the bag.

Does the client make any sort of admissions, any sort of statements, or does he keep quiet?

So he says when they first detain him and also when they take a Miranda statement from him at the

police station that he found these items in a bag outside.

And he is very clear with officers.

He's like, I found them in a bag.

Here's where I found them.

I can show you where I found them.

And actually, a police officer watched me find them.

You should try and talk to that guy.

And of course, the detaining officers are like, whatever, man.

You're full of shit.

You're probably really high right now.

You have the stuff.

Case closed.

We don't really need to do anymore.

And this was very, this is very troubling to everyone.

Well, I guess it was very troubling to me.

It's very troubling to my client.

It was very troubling to the jurors, ultimately, that no one tried to get into this.

So all this, excuse me, all this interaction that you're talking about is, is it recorded

on body-worn video?

Yes.

And then the statement that your client gave to the police is also on video, right?

Back at the station?

Yes.

So that, that full statement is on video.

And then the detention where, where my clients are like very bewildered as to why he's being

detained, why he's being chased, why he's being thrown on the ground.

He's, he's, and him saying, what is this?

Like, why is this happening to me?

And then they start going through these items.

He's like, no, no, no, no, no.

I found those.

I found those.

And they, again, as officers, I want to do, keep trying to trick him into admitting that

he was in a unit, that he used a bathroom, that he was here.

And he's very insistent the whole time.

Absolutely not.

That's, that's just not true.

I was never in a unit.

Does he, what's his demeanor like when he's providing this explanation for how he found

the items in the bag?

So it's, it's a little different each time, actually, because he's, when he's going, when

he gave the statement at the station, he's pretty clear that he's going through withdrawals

at this point, because it's been several hours.

And I actually think that makes him more credible because he almost seems incapable of lying or coming

up with anything because he's in pretty significant physical pain.

And, you know, he just, even though they try and play this game and trick him multiple times,

his story doesn't change.

And when they encounter him on the street, when he first gets detained, he's not, he's,

he's responsive to all of the questions.

His responses make sense to the questions.

And so he's, he's upset and bewildered at being, because they sort of chase him down and

tackle him to the ground.

And so he's, he's definitely emotional from that, but not, I found him to be very, very

genuine, very credible.

I really, really wanted his statement to be played to the jury because I thought that would

make them believe him even more.

Did, so you said, you said he was tackled.

So did he run?

Yes.

So the, where he was sitting was just, he was just sort of chilling on the sidewalk by

a tree and, um, the police sort of pop out of a building.

They're looking for him on the main street.

He's sitting on an alley where the apartment, the address of the apartment is.

So they park their car here and, um, you know, in San Francisco, I don't know if this is

the same everywhere, but it seems like 50 police officers respond every time there's a call

for anything, whether that be trespassing, sit lie law violation.

Like it's just, no, they've got nothing else to do.

So 20 officers are like swarming, parking, lights on, guns drawn, and they run through

this building and pop out the other side, about 20 feet away from my client.

They look down, see him and just start running full tilt at him.

And they don't say anything.

They don't say police stop, even though, you know, they're uniformed and whatnot, but they're

just sprinting.

My client is terrified, jumps up, runs about, he only gets like five, six steps before they're

on him.

And so that's when they, they tackle him and he's asking like, why are you doing this to

me?

What's happening?

What does he look like?

Is he very obviously homeless?

No.

What's that supposed to mean, Mooch?

What's obviously homeless?

I think the police would be able to answer that question.

I think they do on the reg.

So, I mean, my client's a young black man and he is, you know, this was a very difficult

time in his life.

It was actually the first time he's ever been homeless.

And so he had previously been doing really well, living with his girlfriend.

They were both working.

And that just sort of a series of unfortunate events led them to, led him to being homeless.

They had lost their apartment.

He had to move back home.

He had been injured and then started taking pain medicine as a result.

And that developed into sort of the really tragic but almost stereotypical story about opioid addiction

that we have.

So he was living back with his mom and didn't want to be using in front of her or his younger

brother.

So sort of voluntarily made himself homeless to spare them and just to not have that shame

constantly present in his life.

And so he was dressed and he had like, he had jeans, he had like a cute little sweater vest.

He had his like nice little backpack with him.

The one thing that I think that was probably that what alerted the custodian is to potentially

him not being allowed in the building was he had no shoes.

And he had these really cute and sort of tragic Star Wars socks, like R2-D2 socks that were

really distinctive, that actually were part of the description, like we're looking for a

young black guy wearing R2-D2 socks.

And, you know, he had and what he tried to tell police to and everyone was that the night

before he had slept outside, it was one of his first nights sleeping outside.

He wasn't yet good about guarding his belongings.

He didn't have a good community on the street yet looking out for him.

And someone stole his shoes right off his feet as he was sleeping.

So he, he got up and woke up and was trying to find his shoes, see if anyone had seen anything

happen to his shoes.

And a couple of folks told him like, look, we don't know what happened to your shoes,

man, but there's this apartment building nearby that has really good trash, like really good

dumpster diving opportunities.

A lot of rich people live there and throw away grade A stuff every day.

Um, and so that's sort of what turned my client on to like going to this building.

And he's like, maybe I can just find a pair of shoes.

He was looking for anything.

He just wanted to go home.

He, he lives in Oakland.

This was in San Francisco.

He was like, I need shoes to be on the BART.

Otherwise someone's going to stop me and hassle me.

So I just got to find some shoes and get home.

And so he, he did keep also repeating this to the police that I just was there looking

for shoes.

I didn't take anything.

I didn't even find shoes.

I didn't, I, I was only there for like two minutes before the security guard found me

and escorted me out.

The case is filed at some point you end up with this case.

Can you tell us about that?

I actually was not, um, my client's first attorney and I was actually his third attorney.

This case was from August of 2019.

He was originally represented by a lawyer in our office who ended up leaving in late

2019, like December, 2019.

She took a position in, uh, Mammoth.

She's a public defender down there in Southern California.

And the case was then transferred to a colleague.

Her name is Anita.

She's a phenomenal lawyer.

She's one of my mentors in the office.

I really learned a great deal from her.

And she was the one who actually took this case from being a three strikes case to, to

just this, she litigated it such that, and convinced the district attorney's office under

the new administration to strike those allegations.

So by the time the case came to me, it was just, it was no longer a three strikes case.

I mean, it's so great because, you know, it's a difference between a client, you know,

facing three strikes, you know, sometimes, you know, people don't exercise their right

to trial on thin evidence because they don't want to risk going to trial and losing and

then ending up in prison for 25 years to life when they have a solid defense.

And so when you, so if you get rid of those strikes, then you can take a case to trial.

A hundred percent, a hundred percent.

And so that was one thing that Anita was waiting on for, she was waiting for Chesa to take office.

She was waiting to sort of bring this up with him and, and negotiate this issue.

And that happened or the, the district attorneys dismissed the allegations, the strike allegations,

I want to say in February of 2020.

So right before the pandemic kicked in, they were set for trial, ready to go at the end of March.

Anita was, was already.

And then March 16th was the shelter in place, went into effect here in San Francisco.

All trials were delayed and, um, she was, she was about ready to pop in March.

So I, as soon as it was, became clear that she wasn't going to be able to do the trial

and be done by mid April, she was like, I've got to, got to transfer this to someone else.

Tell us about when, uh, what you did, when you got the case, you went to go meet the client.

Um, yes.

So Anita called me, I want to say early May and said, Hey, I need you to take this case.

I had been involved sort of in the, the, the, we call them TPGs, trial practice groups

for this case leading up to it.

Um, we talked about it before I, I sort of really believed in the case and client sounded

amazing and really lovely.

And so when she called, she said, this is set for trial.

It's not going to be the first trial to go out during COVID.

There's no way, like, there's no way that the DA's office is going to let a standalone

459 first on very thin evidence be the first case tried in San Francisco.

So don't sweat it, just take it, see what we can do.

You know, our counteroffer was always a non-strike felony.

Um, she's like, I'm sure you'll get that.

And for CTS and, and David, my client can sort of go on his way.

Credit time served.

I mean, your client would get a non-strike and then time served, get out of prison or

get out of jail.

How did the client react to the fact that you were his third attorney within a relatively

short period of time?

Understandably not well.

And I totally get that.

He, he and his first public defender did not jive.

He and Anita really did.

And so, uh, he had a lot of fear and anxiety about a new person stepping in to the case.

And when I first met him, he did all of the things that I think any of us would do if

we were just getting a new lawyer.

That sort of like testing, how much do you actually know about my case?

How much do you know about me?

How much do you know about my background?

You know, asking questions that he clearly already knew the answer to, but he wanted to

see how I would answer them.

And if that was a similar way as how Anita had answered that same question, because if

I said something different than what Anita had said, immediate red flag.

Um, so that was tough, especially because we were only meeting over Zoom.

The jail had shut down in-person visits.

So it, it's just not a forum for building trust with someone who's already really suspicious

of you to just be on a, a Zoom screen for a half hour time slot.

It was not, not ideal to say the least.

Did you do anything to gain his trust?

Like what attempt did you make?

Realizing that nothing was going to happen over Zoom.

I started petitioning both the court and the San Francisco Sheriff's Department to allow me

to do an in-person visit.

And this became even more pressing as it sort of became clear that our case would be one

of the first ones potentially sent out to trial.

And, you know, we still sort of thought, oh, this is gonna, this is gonna resolve.

But it's like, you know, I just in case it doesn't, I need to go.

I need to meet my client in person.

He needs to see me physically in front of him.

He needs to know like what my face looks like when I'm happy, sad, tired, whatever.

I need to know the same about him.

And like, I also have things to show him that I can't do over Zoom in the same way.

And so I started filing these motions for in-person contact visits.

And, you know, everyone asked, was acting like I like walked into the courtroom with no pants

on.

They were just like the audacity.

What?

You want to meet your client in person?

I don't know.

And I just, I thought it was gonna be a big deal, but I didn't think it was gonna be this

big of a deal.

And fortunately, after a lot of back and forth, and ultimately, even at one point, Chesa Boudin

got involved and said, look, if you don't allow a client and an attorney to meet in a meaningful

way, even if we did get a conviction, it would get overturned on appeal.

Like if we want to believe in the integrity of our convictions, whatever.

I mean, good, glad, thankful for him.

And I question that there's integrity in any conviction, but I understand what he's saying.

But he's like, you need to let her see her client.

And so now, all of a sudden, I'm being allowed to, in the jail, have screened visitation with

my client.

So there's still glass between us, but it's unlimited time and still we can communicate.

And then once we did ultimately get sent out to trial, there were specific times set apart

for us to meet in the tank for as long as we wanted.

Did you think that those face-to-face meetings helped you turn a corner with your client in

terms of gaining his trust and forging a better relationship?

When you're on a limited 30-minute Zoom, you have to get down to business real quick.

When you can just kick it in the jail, that's where you end up talking about what you had

for breakfast and what my mom's reading right now.

And it's where you just have human, normal conversations when you're face-to-face.

So I think that was huge, huge to help build trust.

And I think the other big thing, which is always the case, is I reached out to his family, his

mom and his sister, and we started talking regularly.

And then when my client calls them, they say, oh, I talked to your lawyer.

So we're all on the same page there.

And that goes a long way, I think.

What were some of the things that you guys talked about that weren't so law-related, maybe

about just getting to know each other?

Yeah.

Well, I'm from Wyoming originally.

And so David had a lot of questions about that.

What's it like growing up there?

Because he grew up in East Oakland, which is Far Cry from rural Wyoming.

And so we talked about those differences.

We talked a lot about relationships and his ex-girlfriend and maybe what went wrong there.

He, you know, he really wanted a woman's perspective on some of the things that he said and choices

he made in the heat of the moment and their arguments.

And, you know, walking him through, well, she was probably mad when you said that because

X.

So just, I don't know, we talked about, you know, he was at the time like pretty concerned

with his appearance as well.

Folks tend to put on a lot of weight in custody because the food is so nutrition deficient that

it's just like gross carbs.

I mean, gross as in like, it's not even the carbs that taste good.

It's just bad, not nutritious food.

So he was really self-conscious about having put on so much weight while he was in custody.

So we talked about that and exercise.

And I had put on like the COVID-15.

So we were both little chubby bunnies when we went to trial.

You know, relationships do that.

Hey, A&G fans, thanks for listening.

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Like us and follow us.

And please leave a comment if you like this episode.

Okay, so then, so I'm glad that you're turning the corner.

Things are going well with your client.

Now, are you, are you developing, like, what's your defense going at this point?

Do you know what the defense is?

Yeah, so the defense was always going to be, he found these items outside.

He never entered or crossed any threshold with an intent to steal or commit a felony.

And the plan was always to have him testify about, because, you know, that was really the

only way we were going to get in, where he found the stuff, the circumstances under which

he found it, why he went into the, the overall complex to begin with.

And we were always going to concede the receipt of stolen property misdemeanor.

What, what did he think about that strategy?

Did he want to, was he okay with conceding the misdemeanor?

He was, he was, um, mostly because he, when he saw the belongings, he sort of knew, like,

this wasn't left here necessarily by accident.

Like, this is, this is someone's stuff.

Um, and he was sort of just up front with everyone, including the police.

It's like, it's, he knew they didn't belong to him.

He felt bad about picking it up and walking away.

It was like a candle and some headphones.

So then what's the state of the, or let me ask you this, do you, is there any investigation

you do in this, in this case?

Like, what's some pretrial work you did?

Yeah, I was super fortunate to have, uh, I think one of our best investigators assigned

to this case.

And also one of our best paralegals are, and the investigator for this case, his name

was Colin and well, his name is Colin.

He's still called that as far as I know.

Um, he's this giant white guy who is bald, but has like a big beard and he's either like

a, a, a former biker or an undercover cop.

Like that's what he looks like to the average citizen.

Um, and he's amazing at his job.

And so he right off the bat, when the first attorney got the case, they asked Colin to

go to the apartment complex and retain or get as much surveillance video from the apartment,

um, in hopes that we could definitively prove that my client was never on the fifth floor.

And Colin, you know, calls them, texts them, emails them, shows up, serves as subpoena.

And no one's really being responsive.

When he finally gets in touch with the person who would have the video, they're like, oh,

oops, it's been deleted.

And he, but literally from day one, he was trying to get this video.

And so Colin actually ultimately testified at trial about his efforts to secure this video,

because we wanted to make sure the jurors knew that we went as soon as we possibly could

to get this, the police, you know, it was multiple days before we were, uh, appointed to represent

my client.

The police could have gotten this video on day one and they chose not to.

Colin also did a lot of witness interviews and he and I went and actually spoke with the

apartment.

Uh, the woman who made the 911 call, the apartment owner and her husband multiple times and they

were really nice people.

Really nice people.

Like you made, you made multiple trips to talk to them?

Multiple trips.

Um, they, they were not good about answering the phone.

I don't know if they just didn't pick up numbers they didn't recognize and then never saved either

my or Colin's number, but because it was COVID, they were home all the time.

And so when we would go out to the apartment complex, first, I wanted to see the apartment

complex.

I wanted to get an understanding of the layout and, you know, where exactly they, the security

guards saw my client on the second floor and it was right by the trash chute actually, which

is, uh, there's a trash chute on every floor, but only on one side of the building.

And that's indeed where my client was.

And so I wanted to get a feel for what's this building look like.

How long does it take to walk from the front door to the second floor?

How long does it take to get on the elevator from the ground floor to the fifth floor?

Just sort of like timing it, mapping it out.

And Colin came with me every time because he would be testifying to that ultimately.

Did you like come to any good conclusions from your multiple trips about the layout?

Like, did that, did that tell you anything about the case?

Yes.

Um, I thought it was really helpful for me to see, first of all, that, um, everyone puts

their trash can in front of their door, um, in that apartment building.

And so when the security guard said that, you know, my client was surrounded by trash and

it looked like he'd been going through trash cans, that made sense because at first I was

like, are there big communal trash cans that he's going through?

What does he mean by that?

And it's no, people just put their sort of individual trash cans outside their door and

then there's the trash chute.

And then I just got a better sense of, um, how impossible it would have been for my client

to have gotten from the front door to the unit that was ultimately burglarized and then back

down to the second floor in the time that was not a fact that was in dispute.

Like it was, my client was in the building because the surveillance clocks him going in at this

time.

Security guard noted, I encountered him at this time.

I was, he was escorted out at this time and it was something like eight minutes.

It was super short.

And I just found it would have been impossible for my client to walk in, even since he took

the fastest route, which would be the elevator, wait for the elevator, go up, walk out.

Go down the hallway, turn left, go down that hallway, turn right, get to this unit, go in

there, rummage through everything, destroy the bathroom, get out, go back down the hall,

turn, turn, elevator, second floor.

Like it, it just wasn't feasible.

Also the idea, like if you just burglarized an apartment, you're getting the, you're getting

the heck out of there.

Like you're, you're, you're gone.

Like you're not sticking around and just rummaging through stuff on the second floor

now.

When the security guard encountered my client on the second floor, um, the security guard

was very forthright that he, he didn't see anything that he thought was indicia of theft.

He didn't see anything that looked like it was later one of the items that was reported

missing.

Um, and so that would have been theoretically on my client at that time that he encountered

him and he didn't see any of that.

So the security guard was almost a defense witness in this case.

Yes.

Yes.

It looks like we're, so we're going to trial then, right?

Tell us, tell us about going, cause you, I mean, you were talking about maybe getting

a credit time served non-strike offer.

Uh, so talk about the, you know, the, the lead up to trial and like, were you guys just

waiting for the trials to resume because of the pandemic?

Like what was good, what's going on?

So in, in mid June, uh, we get noticed from the June of 2020, we get noticed from the criminal

presiding judge that trials will be starting up again in about a week, a week and a half.

And she sends this list out of trials.

Like these are the first.

So she said, we're only going to do four trials at a time.

So before trial courtrooms and four satellite courtrooms, um, that sort of correspond with

the trial courtrooms.

And so she sent the list out.

She said, these are the four cases that are going to go out.

And our case was at the top of the list.

And I didn't see this email yet.

I just get a call from a manager and they're like, did you see the list?

And I'm like, what are you talking about?

Why are you calling me at, at 9 PM?

And they're like, your, your trial is going to get sent out.

And I just sort of like had this moment of like, you know, where you feel your stomach

just drop out of the bottom of your body.

And you're like, excuse me, what?

I, I was told, not, not that I'm scared of trial, but it was just like, huh?

And, um, my client really did not want to go to trial.

He was terrified, absolutely terrified.

And he had never been to trial before in his life.

I don't know who was talking to him in custody about trials and what they were saying or, or what

had previously informed his beliefs about trials.

But he was just like, the jury is going to hate me.

I don't want to do it.

Um, and he, he was like, this isn't going to happen, Sierra.

We're going to get sent out and then they're going to accept our counteroffer.

I just know it.

And I was like, you might be right.

That does happen a lot.

Um, and, but in my mind, I'm like, nope, nope, nope, nope, nope.

Like start writing your voir dire questions, get your shit together, go get your suits dry

cleaned.

Like, this is a fucking trial.

And, um, we, you know, we get sent out when we go to the master calendar.

Um, we get assigned to judge.

This was the judge we got assigned to was a judge that our office had been doing a blanket

point six challenge.

So saying that, you know, the judge who this case has been assigned to cannot give a fair

trial to my client and, you know, therefore we're, we're exercising our challenge, which,

you know, everyone gets to exercise at least one challenge throughout the course of the case.

And I, when we got assigned to that judge, I just sort of stared at the presiding judge

and it was just like, you're okay, we're, we're going to do this.

You know, that we've been trying to point six her out of the building and, but I knew

that the next judge up was a judge that I personally would point one, which is say like, I will

never be in front of this man again.

He is, his name is dirt.

Like we will not be friends.

We will never be friends.

And I never want to try a case in front of him again.

And I knew that judge was coming up next on the roster.

So I just sort of had to kick rocks and accept this judge that my managers had told me, if

you get sent to her point six her point six her, and, uh, I didn't, which also led to another

late night call from a manager, but even still, you know, and, you know, things up.

Yeah.

Well, it was just, it was the wild west of COVID trials.

Um, and so we get sent to, to this judge and, um, the district attorney had, they actually,

they had just reassigned the case to a new DA.

He, he didn't know up from down just because he, like, they literally, I think dropped it

on his chair while like purposely waited for him to walk out of the office and then put

the file on his chair and then like scurried away.

So he was like, what are the charges?

What are your client's name?

Like, he just didn't know anything.

Um, yep.

Typical, typical, right?

Little handoff.

Yep.

Yep.

And, um, so we, we showed up and my client was still really just like, this is going to

settle.

This is going to settle.

And finally I had to have a real serious conversation with him.

Like, this isn't settling, honey.

This is, we're going.

We're, we're doing this.

We're doing it.

Yeah.

They kept their offer at a strike for four years though.

And what was, um, what was his maximum exposure?

Six.

So they're, weren't really offering him a whole lot.

I mean, he's being, he's, his maximum is six.

He's being offered four.

Sounds like, sounds like a trial to me.

Yeah.

And the DA sounds a little, uh, unprepared too.

Right.

And the DA looks like he's, you know, looking to buy an elevator pass.

Did the, and the, did the, uh, CSI crime team ever come and do all the little laboratory

things they were supposed to do or examine the, uh, the kids that were dropped off at the

pool or did they already take fingerprints or what was.

They did not, um, actually the responding officer who's sort of like, uh, buy the book, always

trim your mustache a certain way, wear your pressed uniform cop, like just not, he wasn't

bad.

He wasn't good.

He was just down the middle.

Um, he had called CSI and said, you need to come respond to this apartment because it's

actually SFPD policy that CSI shall respond when there is a hot, proud burglary report.

So he, he did his due diligence.

He said he put in the notification to CSI and then it then handed it off to the assigned

inspector, uh, who was a Sergeant in the burglary robbery detail.

And that person just chose to never follow up with CSI, even though the apartment owner

was told, you know, don't touch these surfaces.

They clearly have fingerprints on them.

And she was also told, don't clean the bathroom yet.

I know how much you want to, but don't do it because there is literal biological DNA evidence

in there that we will collect.

So she waited, waited, waited for, I think, damn near two days before she finally was like,

fuck it.

I'm cleaning this bathroom.

Um, and, and then I think she just cleaned everything else too, because she was like,

whatever, I'm over it.

Um, so no, they never responded.

All right.

So tell us about jury selection then.

So they had completely revamped the way that they were going to do jury selection.

Um, we, we started out by doing a questionnaire, which is something the defense always asks for

in our office.

And we almost never get, uh, unless it's a life case.

And we go through all of them.

We go through the process of basically anyone who said they had any hesitation related to

COVID was given a hardship, um, or kick for costs.

So that, that whittled it down to actually a pretty small number.

I think ultimately there was like 80 jurors or so that, uh, could potentially be called in

to start the jury selection process.

How did they, how did the court satisfy the public, what's that called?

The public something requirement of a jury trial or, you know, they, they, the proceedings

need to be open to the public.

Like, so what, what did they do?

This was a hotly contested issue in our trial.

They, um, cause I don't, I don't think they satisfied that, but what they did was for, for

just for a deer, they created a YouTube live channel and they, they put this out to the

world.

Not, not any other part of the trial, not any other part of that.

That's arguably the most important, but what tear was put out to YouTube live.

The only people watching were the shit talkers of my office who just wanted to text me being

like, why did you ask that question?

Tear up your bar card, cut it up.

Must have been a dream come true.

Right.

This is your voir dire.

They're, they're saying that they're texting you this during your voir dire.

Very supportive.

Presumably they were kidding.

Yes.

Um, no, actually the first day of voir dire was bad.

Was, I mean, I think I did.

It had been, I was, I was rusty.

I was nervous.

It was awkward.

We were wearing the compromise of the whole face shield mask thing was wear clear masks.

Um, which my nose is just too big for these masks.

So it was squishing my nose like this and I looked ridiculous and it actually hurt.

You had the snout going on, like, like a pig, I guess.

Sorry.

I don't want to say it, but like, you're showing, right?

You know, you're, you're no smash.

I've been in well with my coworkers.

Sierra, you look like a pig and you suck as a lawyer.

Yeah.

Also, you said you gained 15 pounds during COVID too.

No.

You're feeling great.

You're feeling great.

I thought I was thinking it.

You said it.

Yeah.

No hold far, apparently.

Warning to future guests of another not guilty.

You'll be called fat and ugly.

Fat, fat, piggish.

I mean, yeah, the first day of one year was bad.

It was clunky.

I just, no one was picking up what I was putting down and we were trying to talk about, you know,

just like basic stuff, like stupid stuff that I know better to ask anyways, but I just sort

of reverted back to like my misdemeanor DUI days where I was like, who walked in here and

looked at this man and thought, what did he do?

Like people were like, no one, we, not, none of us did that.

And I'm like, okay, next question.

Liars.

Yeah.

First of all, liars.

Second of all, like help a sister out, please.

Like someone, someone raise your hand.

The next day was much better, much better.

I felt much better about my pointeer and I actually ultimately ended up loving my jury.

It was one of the best juries I think I've ever had in terms of how open they were to,

you know, poor police investigation, how staunchly they were supporters of presumption of innocence.

This is like right in the summer of George Floyd and Black Lives Matter, right?

Exactly.

Exactly.

And it was like, there were too many people who were talking about in their, that in their

questionnaires and in court for the DA and the court to kick.

They just, they couldn't.

And they were, these jurors were sort of like really savvy and brilliant.

They weren't even causing themselves.

They were like, no, I'll be fair.

I'll be impartial.

But also the police are terrible.

And they should never be believed.

But they just, they wouldn't go so far as to, to cause themselves.

And yeah, I ended up loving them.

One in particular, who ended up being my foreperson, was fantastic.

Tell us about this jury.

She was almost not on the jury.

It was sort of one of those moments where you're like, but for the grace of God, we go.

And she would have been an alternate, but juror number 12, at the very last moment before they got sworn in, sort of raised his hand and was like, I can't, I can't do this.

I'm just too stressed.

I run a small shipping company.

My business will go under if I'm in trial.

This, I thought I could do it, but the stress is too much.

And he was, he was good for us too.

And so I was really sad to see him go, but I knew that if he, he was gone, then this alternate juror who was a sort of like a sleeper cell, she would come and be our juror number 12.

And she was a sleeper cell because she had just finished law school, just passed the bar, and was awaiting some job or position with the FBI, but she wasn't specific.

And so I knew that would make her sort of fly under the radar of the DA, and the DA would, all they would see would be FBI, and they'd be like, cool, law enforcement, good.

But my team helped me do social media research on all the potential jurors, and she was posting about, you know, the corruption of the legal system, and how young Black men are unfairly targeted, and how, you know, police are trained to test a lie.

And that sometimes maybe they don't even know they're doing it, but they're always going to be partial towards the government, and prosecution, and conviction, and just like saying all this amazing stuff.

So I didn't ask her one single question during what year.

I was like, don't even make eye contact, her pretension's not there, like just slip on.

And she did, and she ended up being a four person.

Did you and your client talk about her, like trying to get her onto the jury?

Like, oh, yeah, she's good.

We got to get her on, you know, like.

Oh, yeah.

Oh, yeah, we did a lot.

Because I went over the questionnaires with my client as well to make sure he sort of knew who was coming up and, you know, so that we could better communicate about why I thought one certain people should be kicked and kept.

And she was our favorite juror out of all of them.

She was our favorite juror.

And she just happened to be sort of early in the randomized list.

And then some other people said some things to make themselves go away, and she kept moving up.

And every time she moved up, my client and I would sort of be like, like, look at each other, like, where she goes, look at her go.

And when she moved into the number 12 position, my client, who's a very expressive person, he's just got one of those faces where, like, he should never play poker.

It's just so obvious what he's thinking.

Just sort of looked at me with this, like, I don't know if you've seen the meme of, I don't know if it's like a Muppet or a puppet that's, like, looking at someone out of the corner of their eye and, like, oh, shit, sort of way.

He was just like, oh, she's on.

And I was like, I know, shh, be calm, be cool, be cool.

We passed, we passed, we passed.

Did you anticipate that she would be a likely four person if she got on?

Yes, yes, we were.

I always rank jurors.

I give them a one through five, one being sort of like a perceived passive, so like a follower or a leader.

And she was, like, good for us and a five.

And I just knew that she would be the four person as soon as she got on there.

Yeah, I'm the exact same way.

I love it.

I mean, when you can get someone in there that's good and a likely four person, I mean, that right there can be a big part.

It's a big part of the case just before you even open your mouth during opening statement.

Totally.

Did you text your friends back?

Ha ha, what do you think of that one?

Did you see that?

What's that?

Game over.

Game over.

I don't negotiate with terrorists.

Yeah.

You're trolling public defenders.

Yes.

Trolleys.

The San Francisco trolls.

They are trolleys.

Yes.

They are full of trolleys.

Okay.

Tell us about opening statements.

It was pretty, like I was saying, it was pretty standard from there on out.

I actually, opening statement is one of my favorite, if not my favorite part of the trial.

I like going big in opening statement.

I like over committing, promising things I'm probably not going to be able to deliver.

And just, I think it's just the best way to get in people's mind that, like, no, we are

here for a reason.

You are going to vote not guilty.

You are going to examine every single thing the government puts in front of you and be

really skeptical.

And I think the only way to really do that and impress upon people the seriousness of their

duty as a juror is to open big and open hard.

And so that's what I did in this case.

Talked a lot about my client and his story and what he'd been through recently, his circumstances,

his family, what was going on that day, everything that he tried to tell police and they wouldn't

let him or wouldn't listen to him.

The district attorney did their sort of standard, like, the evidence will show and we read police

report and at the end, vote guilty.

Sort of like just pretty run out of luck.

This is about holding people responsible.

Yeah.

This is about choices.

Choices and accountability.

Yes, and accountability.

Did he do his standard, I just got this case?

I need to, I'm not sure.

I need to try it now.

I'm just going to stay.

I'm just going to stay in this box.

Okay.

Hold him accountable.

Thank you.

He did it.

You know, I, I actually, I get along with very, very few prosecutors.

It's just, I think, probably how we all are, like as a rule.

Yeah.

A lot of people from Wyoming are like that.

Yeah.

Indeed.

Yeah.

Well, you know, there's like a sort of weird concentric circle there of not trusting the

government, but also, you know, hating black people.

So I don't know how that really falls out, whether they would like prosecutors or not in

Wyoming.

I just insulted an entire state and my grandparents will probably be.

All right.

So the 15 people don't like you anymore.

Okay.

Big deal.

A lot of angry cows right now.

Really get like two downloads a month from Wyoming.

Piss off Wyoming.

That download another not guilty.

Yeah.

Lord.

Oh God.

So, but this DA, actually, I've, I've got respect for, and he, in particular, in this

trial actually showed some real integrity that I don't think a lot of his colleagues would

demonstrated.

It sort of came down to my clients' priors that the judge had made a ruling in InLIMS,

excluding them for all purposes.

And that was great.

And then right before we opened, she changed her mind.

And she calls us into chambers and she says, I've thought about this some more.

I'm letting the priors in and I'm not sanitizing them.

Not, not at least sanitizing them in the way that I had wanted.

And I lost my shit.

And I was like, this is a mistrial.

I didn't voir deer on priors at all, at all, because you told me they weren't coming in.

And I relied on that.

I didn't, and, and the way you're letting them in, um, they would have been so prejudicial

based off of the nature of the conduct that was, he was convicted of that I was like, this

is nonsense.

And the district attorney actually said, I don't intend actually to introduce those priors

because Miss Villeron was not under the impression they were coming in.

Uh, I don't think it would be ethical for me at this point to bring them in.

And I understand the court's rulings, but I'm electing not to introduce them independently.

Nice.

I know.

It takes some guts.

It does.

It does.

So I, I do, I really do respect this, this DA.

I can see why this judge had such a bad reputation going in.

Yeah.

It was tough and it was, it was sort of similar.

Were you giving text messages?

I told you so.

I told you so.

You see?

Oh, well, my manager was the one who started the 0.6 train.

So yeah.

Yeah.

I came back out.

Cause I, you know, I'm, I'm freaking out and I'm texting her.

I'm like, well, what happens?

What should I do?

And yeah, she definitely had, no, she, she is, she is way too good of a manager to say,

I told you so in that moment, but at this time, I'd like to thank and acknowledge Katie

Rogers and April Middleton, our newest members to the A&G Patreon program for their support

and contribution to the cause.

If you too would like to become a member and receive a shout out on an episode and or the

unedited version, which usually contains extra facts, analysis, and banter, then please visit

our website at anothernotguiltypod.com and click on the Patreon link.

Thank you.

All right.

So then it's time to roll out the evidence then, right?

For the, for the prosecution.

Yeah.

So they, the, the witnesses that were called were the, you know, the apartment owner, the

woman who made the 911 call.

Like I said, she, she and her husband were super chill and they are Brazilian actually.

And, um, just weren't that bothered by the whole thing.

Um, you know, we, I've had similar cases where witnesses, you know, the sanctity of my home

has been ruined forever.

I'll never feel safe again.

Uh, I have ongoing trauma for the rest of my life.

And those, and their, and their bathroom is already even blown up.

No.

They're talking about the sanctity of their home, you know?

Yeah.

Yeah.

So she, you know, she wasn't, that wasn't her jam at all.

She was just like, yeah, we woke up.

Someone was clearly in here and the bathroom smelled really bad.

And, uh, that's about all she wrote.

Like she just, she didn't really seem to have a dog in the fight.

She was really straightforward.

She was like, this is what I thought, you know, sort of noticed right away that was missing.

But I didn't see anyone, hear anyone, couldn't identify anyone.

Um, you know, she sort of walked in and, and because Colin and I had been going to her

apartment so frequently, she walked in and she like gave us a big wave and she waved at

my client and went and sat down and super cute.

Oh, nice.

Did the, did the jurist see the waving?

Mm-hmm.

Is all that connection?

All right.

Yeah.

Yeah.

Um, and like when she was leaving, she stopped by a defense table and she was like, am I,

am I done?

Was that good?

Do I have to come back?

And he's just like, because the DA, because he was so recently assigned the case, he had

never spoken with her.

Um, so like the only person she's getting information from and knows anything is from the defense.

Um, and her husband testified right after her and did the same thing, like wave, walk in,

um, sit down.

Well, it's like one of those things too, like they're, they're sort of in a,

in an environment they're, they're not familiar with.

They don't know anybody.

You're the one familiar face that they know.

So they're going to say, it's like when you, when you walk into a party and you know, one

person, you like walk to that one person.

Cause it's sort of like anxiety and socially awkward.

So like, Hey, I know somebody I belong here.

Yeah, cool.

I was invited.

I know somebody.

Exactly.

You know, I belong here.

Let me get some food and drinks now.

I got that subpoena invite.

Yeah.

I'm not, I'm not crashing this trial.

I'm not crashing.

I swear to God, I gotta, I know somebody.

Yeah, exactly.

Um, and so their testimony came in, in really well.

Um, I didn't, it wasn't like a hard hostile cross at all.

And it was similar with the security guard.

He was, was pretty upfront and, um, I sort of, my strategy with him was to try and bolster

his training and his experience as much as possible to say, like, if you had even a whiff

of suspicion when you encountered him on the second floor that he had been in someone's

unit, you know, he had been in someone's office.

He had been in someone's office.

He had been in someone's office.

He had been in someone's office.

He had been in someone's office.

He had been in someone's office.

He had been in someone's office.

He had been in someone's office.

He had been in someone's office.

He had been in someone's office.

He had been in someone's office.

He had been in someone's office.

He had been in someone's office.

He had been in someone's office.

He had been in someone's office.

He was an Iraq war vet and just, you know, hero.

So he, and he had, again, no, no bone to pick with my client was very similarly respectful.

Um, and so it was, it's just, it's one of those things where when you're trying to talk

to younger new lawyers about like why you go to trial, this is like a story I would tell

them because it, it, it just gets better with trial.

It's never going to get worse.

Uh, and if it does, it's not going to be in a way that you can't manage it.

Like it, trial can just come together in this sort of beautiful copacetic way.

Who else did the prosecution call or anything else with those witnesses?

The civilians, I guess you could say the security guard and the two.

Residents.

Residents.

Yeah.

No, I don't think so.

There was this big sort of back and forth about a very particular bag that was missing from

the apartment.

The apartment owner said, I have this bag.

It's like bright blue.

It's from the South Korea Olympics.

I would recognize it anywhere.

Um, and I, I don't really know why the focus became so singular on this bag.

That bag was found near my client near where my client was originally sitting before he

sort of moved a little bit.

And the jurors.

So this, this judge allows jurors to ask questions, which is both great and terrifying

because they asked all of the questions that the DA should have asked.

Um, so I don't like it.

Yeah.

Yeah.

And you know, you purposefully don't go into an area on cross and then just close your eyes

and cross your fingers.

And then the jurors ask about it.

Dang it.

The double edged sword of having a smart jury.

Yeah.

So they were asking a lot of questions about this bag.

And I don't, I think it's because they were trying to tell if maybe the security guard

had seen this bag on my client when he encountered him on the second floor.

Um, because it was such a distinctive neon green bag, they wanted to know whether the security

guard had seen something like that, because that would have implied that my client had been

in the apartment unit before he was encountered on the second floor.

But the, they just couldn't get it.

The security guard was like, he had what looked like sort of trash bags around him.

I don't recall specifically this neon green bag.

So, you know, that was the question I didn't, I didn't open the door.

I didn't ask the security guard that.

And when the jury did after the, cause you know, the, the residents testified first evidence

of this bag came out and then the security guard came in and I was like, don't talk

about the bag.

Don't talk about the bag.

Cause I didn't know what the answer was going to be.

Um, and then the jury asked it and it's like where your whole body clenches up and

you're like, Oh God.

And then he was just like, um, no, not that I could remember.

I mean, maybe, but he just, I just knew he had bags with him.

And I was just like, whew, dodge the bullet.

Um, any other, any other evidence from the people?

I don't think so.

That's all I remember.

All right.

So then the, the government rests.

Right.

Um, okay.

So it's not, now it's time for you to put on a case.

Did you put on any evidence?

Well, so like I, I had mentioned earlier, I, my plan was always to have my client testify.

And, um, we had worked on it for a long time, talked a long time.

I had multiple coworkers, you know, cross him and all people of different styles.

And, you know, Martina, like, um, people who like come in hot and heavy, super aggressive

people who are more like subtle, sneaky.

Um, so that he would have used, I didn't know what this, this DA style was going to be.

And so we were feeling really confident and my client was scared to testify.

So I was telling him like, you have to testify.

If you don't testify, we're not going to win.

Like that's just the way it is.

And then after the DA rested, I was like, that came in so well for us that the only thing

that's going to happen if my client testifies is they're going to shift the burden to him.

They're going to ask him to fill all the holes that were left in that case.

And it's going to become a, let's weigh who's more credible.

And so that night I sat down with my client and I was like, I don't, I don't think you

should testify.

And he was like, what you told me we wouldn't win if I didn't testify.

Like what it, why, you know, so we had to have this, this long conversation and we went

through back through every, it was hours we sat in the tank and we went through every single

witness, every single thing that they said.

Um, and why I thought that it would actually only hurt us.

It actually only hurt us to have him testify.

And so he's like, I'm going to sleep on it.

That's fine.

We came back in the morning.

He was like, I'm let's go.

We don't have to testify.

I'm cool.

Uh, I trust you.

Let's, let's finish this out.

So we only called one witness, which was Colin, um, to talk about the video surveillance sort

of snafu.

And then we rested.

And can you tell us how, how has your client been during the course of the trial?

Like how many days was this trial going on?

And you know, like, can you give sort of an idea of, of his, of his demeanor during the

trial or his spirit?

Yeah.

I mean, it's something that we all know that, right.

That how your, your, your client's testifying actually the whole trial by just with their

presence.

Um, and he was great.

He is, like I said, he's, he's young.

Um, he actually looks younger than he is.

He looks like he's about 20 and he's got this really expressive face and he's sitting where

our table were set up.

He's sitting actually sort of perpendicular to the jurors.

So that where they sat, the jurors was in the gallery, um, all spread out six feet apart.

So he is facing this way and the jurors are sort of looking at him like this, or there's

a couple of jurors in the box looking at him straight on.

And the way we were communicating was the laptop.

Um, because the judge would not let us sit next to each other and wouldn't let us pass

notes.

So we had to sit six feet apart.

And so my husband actually had to jury rig this mechanism for like connecting laptops.

Cause of course the sheriff's department was like, hell no, you're not giving him a laptop.

What if he gets on the internet?

And, you know, my face and goes crazy.

Um, so many things could happen.

So many things.

Um, so we were, that was all part of the COVID and limbs nonsense stuff.

Um, so we were communicating via laptop and I actually ended up really liking it because

fortunately he's, he's young and is computer literate and it's good typist.

And so he just looked like super cute and super nerdy sitting at this laptop, like furiously

typing.

And then looking at me being like, I wrote you a message.

And then like looking at me.

So it was adorable.

And he was very attentive, um, the whole time.

Also super polite.

Like when the, when the resident walked in and waved at him, he like waved back, even though

he's never met her or seen her before.

Um, you mentioned his mother, was his mother able to be present during the trial?

Uh, that was where a big dispute was.

She was not allowed in the courtroom.

Um, and this was, you know, she hadn't seen her son because of COVID.

She hadn't.

And the shutdowns on visits for like six months, almost.

Um, she wasn't allowed to visit only talk on the phone.

And so she would come in and she would sit in the satellite courtroom.

The deputy who is in that courtroom is super nice.

And he let her sit, I kid you not like here, right in front of the TV, right in front of

the camera so that she was front and center and huge on the screen.

So jurors could see her cause that TV was set up in our courtroom, the corresponding TV.

She just see her sitting right there being like, I am here.

He is loved.

He has people who care about him.

So you better care about him too.

Wow.

So a big, her mom was on the big screen.

Just looking over the, the trial being like, that's my baby.

Yeah.

Better take care of you.

Yeah.

Yeah.

Wow.

That's the best defense that I don't even know.

I mean, wow.

It is.

Public defenders are great, but mama, mama defense, you know, like.

Yeah.

Can't be beat.

Can't beat that with a stick is what my mom would say.

Did you, were you guys able to like wave to each other and stuff?

Like on the big screen?

Yeah.

Uh huh.

Nice.

Did jurors see that too?

Yes.

I don't think you could miss it.

Was she, was she holding up signs?

Like go, you know, that's my baby.

Go defense.

Yeah.

Reason without.

Reason without.

Defense.

Defense.

Defense.

If she was allowed to, she would have.

I know that without a doubt.

Okay.

All right.

So let's, let's talk about the closing arguments then.

You know, the big thing I, the big thing I had to address in closing is my client didn't testify.

Um, and so let's talk about why you don't need to, to hear that, uh, to still acquit.

And the instruction that the terrible instruction that exists for receipt of stolen property and burglary or theft, basically saying you can use the fact that stolen property is found on someone, you know, close in time at to bootstrap that they were the one, the perpetrators of the actual theft.

Um, so addressing that sort of head on and talking about all of the opportunities that the government had to really shore up their case and their evidence.

And that they didn't take advantage of that.

And that they just made the worst sort of assumption when they found David with the stuff.

And then going through all of the reasons why actually the circumstantial evidence supported that the David was not the perpetrator of the theft that timing wise, it was impossible.

And that if you, like you had mentioned earlier, that if you had just committed a burglary, why would you stick around in the area for hours afterwards to be easily scooped up by law enforcement?

Um, and the fact that the district attorney seemed so hell bent on keeping his statement or anything that he tried to explain and tell the police away from the jurors was really shady and circumspect.

And, uh, and how was the prosecutors closing?

There was like some sort of strange stomping around pretending to go into an apartment and steal things that I didn't really get.

I was, we were all sort of quizzically watching, including the judge who was like really quizzically watching.

He didn't act out the bathroom scene, did he?

I hope I was going to say that's too much, too much recreating of evidence.

Okay. So tell us about, um, jury deliberations.

They were, they were out for too long.

The days in which they were deliberating was longer than the days in which evidence was presented.

It was soul crushing, honestly, because I finished and I was like, and that's all she wrote.

We're out.

We'll see you guys in 20 minutes when you can deliver this not guilty verdict.

And then we were on like day five and I was like, I want to, I want to die.

They deliberated for five days.

I should double check that, but it was, um, yeah, it was four or five days.

Wow.

And, uh, my client's mom and I sat outside their deliberation room for all five days.

We just sat on the same bench and just like watch them show up, watch them go to lunch, watch them come back from lunch, watch them leave for the day.

And we were just like, what are you people doing?

What's going on with your, with your, uh, with your, with your foreperson, your juror.

I mean, you're, you're a leader there that maybe you've got to close the deal.

Maybe that FBI agent pulled a fast one on you was an undercover, you know, pretending to be a progressive on her Facebook or whatever you saw her do.

And then just was really, Oh, that's the deep, deep cover.

Yeah.

Yeah.

Turns out the whole time they were talking about the receipt of stolen property misdemeanor.

Or for much of the time.

Um, but so we didn't know that at the time.

And, um, you know, my client's starting to lose his mind.

And then they finally come back and say, we have verdict.

And my client does not want to leave the tank.

Like you just won't walk out.

And I'm sitting in there with him like 20 minutes.

And I'm like, honey, you got to come out no matter what happens.

Good, bad, sideways.

It doesn't matter.

This isn't over.

We'll never stop fighting.

Cause I, I had thought some sort of appellate issues had come up during the in limbs.

Um, it was like, we, we will come out of this.

Okay.

You're going to be okay, but we have to face it.

We have to do it.

Um, so finally he, he agrees to come sit out and, you know, the, the, there was like eight deputies in the room.

And I've only seen that when like really big verdicts come back on media cases or multiple homicides type of thing.

And I'm just like, what are you all doing here?

This is a nonviolent four or five, nine first, like, get out of my face.

You're making us all nervous.

And they're wearing like their tactical gear too.

It's like, no one's trying to like escape out the back of this courtroom.

Stop it.

He's presumed innocent.

He's presumed innocent.

Okay.

Still presumed innocent.

Even if you're waiting for this burning.

Um, it's just like wild.

Can we please pretend like there's a presumption of innocence?

Right.

Like just keep the facade going at the very least.

And so we, the, the jurors sort of filter back in and then this sort of awkward waiting starts.

And, uh, you know, David and I, my client and I are looking at each other, like what's happening.

And then the judge says, so the presiding judge would like to be present for the verdict.

She's going to be in the satellite courtroom.

Um, they have to deep clean the courtroom before they'll let anyone in.

Cause that's where the jurors were deliberating.

So it takes 45 minutes for them to deep clean this courtroom.

Meanwhile, we are all just sitting there.

And this is not like my client's not feeling the, like, let's be cute tapping on the computer to each other.

Like we are just sitting there and like, like my hands are ice.

I just feel really cold and scared.

And, you know, my client's sitting there and he's not moving as we wait for them to say, it's okay to go forward.

So finally they deep clean the courtroom.

Um, and at this point, a bunch of my coworkers have also assembled.

And so they're waiting to get in as well.

And, you know, my client's mom, um, is there and, um, the, we're finally ready.

The judge says, you know, addresses them.

We go on the record and says, you know, has the jury reached a verdict?

And, you know, everyone's sitting, all the jurors are sitting behind me.

So I don't turn around, but the four person stands up and it is indeed our sleeper cell FBI agent.

And my clients just start shaking and he starts crying.

And I don't really know.

I'm like looking at him, like what's, what's going on.

Um, is it, this must just be the anxiety of like boiling over.

And they, they get the deputy walks over all the way because the four person is sitting in the farthest possible chair from the front of the courtroom.

Deputy walks, collects the verdict forms from her, walks to the clerk, clerk hands them to the judge.

Judge looks, judge hands it back to the clerk.

And then the judge asks the clerk to record the verdict and the clerk reads it out.

And it's not guilty on the four or five, nine first.

Uh, I obviously start crying as well.

Uh, I cry all the time, but I especially cry when I get not guilty verdicts.

Um, so my client and I are holding hands.

We're like, you know, fuck the six feet.

We're going to hold hands.

We're not going to hug, which is what we would normally do, but we're going to hold hands.

We're going to sit here and we're going to cry.

And the DA stands up and was like, can I get you guys some water?

He goes and he gets us two glasses of water.

And it's just this, um, it's this really amazing moment.

And I, I end up asking my client later, like, why did you start crying before they read the

verdict?

And he said he was looking at the poor person.

And he said that when she stood up, she looked directly at him and smiled.

And he said he knew at that moment that they had acquitted him.

And so he was just really relieved at that point.

And so that, that was that.

Um, they, they ended up actually convicting him of the misdemeanor.

The receipt of stolen property for which he had done double the amount of time already.

So he got credit for time served, no probation sentence.

On that and was released from San Francisco custody that night.

And reunited with his mom.

And reunited with his mommy.

Yeah.

So you said that you're, um, still in touch with mom and, and him.

Mm hmm.

What is he up to now?

He, um, you know, he's been sort of just staying at home.

Mostly because of, of COVID.

Um, and he, he wants to start working again, but he's actually been, what's brought him

sort of the most joy is helping his younger brother.

Who is nine or 10.

Maybe he's 10 now.

Um, do like at home learning because right around when my client was getting released from

custody was when his younger brother was starting up school again and everything was online.

And my client, you know, unfortunately didn't get to finish a lot of the schooling that he wanted to.

So helping his brother with that has been really rewarding for both of them.

Um, he's staying clean, doing well, living at home.

Like there, everyone's, everyone's great.

Fortunately.

Okay.

So Sierra, uh, great story.

I mean, I love how you tell the story.

It's very, I don't know.

There's something, something very endearing about how you deliver it in a very like passionate,

but controlled manner.

It, but it's, uh, you're a great storyteller.

So it's been a pleasure sitting here.

Uh, what we want to know is, uh, you normally, I, I ask clients or guests, you know, like,

you know, how they find out about the podcast and like, if you're, they're a big fan, but

I feel like I reached out to you cause I heard about you doing the first trial in San Francisco.

So I guess I knew you first and we're a big fan of you.

I guess that's kind of what I wanted to say.

You know?

Oh, well, I appreciate that.

Thank you.

I'm pretty sure I know how you found out about me.

And it's from two of the, the kooky ones who, who text me during trial, Ilona and Martina,

who are fantastic lawyers.

But thank you.

I appreciate that.

And I am a fan of the podcast.

All right.

Thanks.

I've listened to, I think, I think I listened to one of the mooches.

The, um, the one with the jackets.

Oh God.

That's a great one.

Oh my God.

That seat of is hilarious.

Oh boy.

Yeah.

Check out, check out the mooch.

The prick gets caught in the zipper.

Season two episodes like 17 and 18, I think.

Yeah.

That's an all time great episode right there.

Yeah.

It was really good.

Yeah.

Very highly requested.

Uh, so Sierra, how long have you been a public defender for?

Uh, five years.

Five years.

All in San Francisco?

All in San Francisco.

Okay.

And then, and why did you want to become a public defender?

I never wanted to be anything else.

Um, I sort of have some personal reasons.

And then I started volunteering with this diversion program when I was in high school for juveniles.

And actually it was like a community diversion program.

And I went and I was just like, this is bullshit.

Why are these people even being charged?

Like, this isn't even a diversion thing.

Who are these people's lawyers?

Why are they ending up here?

This is degrading and humiliating.

And you know.

Is it like one of those things where like a, it's like, like one of those, uh, like the

juvenile kids maybe commit petty theft and then they go and get judged by a bunch of other

school kids, you know, for where they're.

Yes.

And those kids get to play lawyer with this person's life.

Yeah.

I've seen that.

It's very degrading.

Yeah.

Smoking a cigarette on campus type of thing.

Like, okay.

Yes.

You have to go to this peer.

Yeah.

Maybe with the best intentions, this program was created, but it just turned into this awful

sort of amalgam of, of racism and gentrification and people having to apologize in order to avoid

these, you know, criminal fines and fees or misdemeanors.

So I, that's sort of really what, where I was like, this is, this can't be what we aspire

to.

Um, so just continue to sort of working in the system.

I was with the Bronx defenders in college, um, then ended up out here.

Yeah.

Well, thanks for, well, thanks for spending your time with us and being on the show.

It's been a pleasure.

It's such a great, a great trial.

And I can't wait to, to air this for the, everyone to hear it.

So.

Thank you.

I really appreciate the opportunity.

It was really nice to meet both of you.

Yeah.

And Mooch, thanks for coming back.

You know, great to have you and we'll be, there's going to be more of you come 20 and

2021 guys.

Don't you worry.

This isn't the only Mooch episode.

I promise you that.

You make sure to have your people call my people.

Let's get it going.

Oh, that's how I know you guys live in LA.

All right.

Well, thanks for coming on the show guys.

Thanks Dave.

Hope you all enjoyed the episode this week.

Special thanks to Daniel Mark for the music and Mike Grimm for the remix.

Your next A&G episode will air next month on the second Sunday.

Peace.

Bye.