El Primer Pescador Latino De Los Angeles – When a Boat Sinks but the Case Doesn't

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He told me he was El Primer Pescador Latino De Los Angeles. I said, "You were the first latino fisherman in Los Angeles?" There was a conspiracy to sink the boat. There was a saboteur involved. That's what the client wanted this to be. I workshopped that a few times around the office and that wasn't as good of a sell. I got this and I was excited about it and I felt like my theory on causation made a lot of sense to me, but other people I talked to were like, "No, that's not how strict liability works. That's a loser, legally."

But I felt like it was a pretty good case because I think if I talk to anyone who wasn't a lawyer, like my mom, all they want to know is why did the boat sink.

Welcome!

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

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

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

In an unjust criminal system.

With a deck stacked against us.

All right, good. Well, we're starting. Welcome back, everybody. Season three of Another Not Guilty. David here, of course, happy to say hi. Co-host of me.

Who's listening with us today is Michael, A&G fan favorite. Last time I had to say you and the Mooch were fan favorites, but really, it's you, Mike.

That's what I've heard. But thanks for having me again. Of course.

I want to let you know, I was out sick the last two days at work, but duty called here. I had to come in when the bat signal came out.

I had to come because I heard about today's guest. I will say, you know, not to toot his horn too much, but one of the best young trial lawyers I've seen come around in a while.

Oh, wow. Okay. Nice. You're kind of like a scout for the podcast. That's what I like to do.

Like who's coming up in the minor leagues. Right. You know? This is a five-tool prospect here. Right.

That's an uncomfortable pressure. Yeah. All right. Well, let's introduce our tool prospect. Patrick, what's up, man? How you doing? Go ahead and introduce yourself to the A&G fans.

Hi, everybody. My name's Patrick. I'm a young public defender. He doesn't sound like one, though. Yeah. He doesn't. No. I don't know. We'll see.

Yeah. He doesn't have any creases in his forehead, though. So he hasn't been through a lot of battles yet. But so, Patrick, tell us about this case you have.

Um, so this case that we're going to talk about was my, uh, my very first trial. Um, it was a, um, it was a, it, so at the downtown courthouse, we have pro department 47, which is where a bunch of stuff comes out. That's like not a crime. Um, and in this case, it was a violation of, uh, fish and wildlife, 5650, um, fish and game code 5650.

Oh, okay. Unlawful discharge.

You have to speed on the fish and game code, David?

I, I have, I have not, I don't think that's even on the bar exam.

Right. Right. So, so I'm in my first month or so of getting my own misdemeanor cases.

And it's mostly, you know, things you expect, like, um, drugs, domestic violence, um, thefts.

And then they give me this case for a guy who's, um, charged with his, whose boat sank in the port of LA and they charged him with unlawful discharge of oil into state waters.

So, so he loses his boat and gets charged with the crime that's on top, the cherry.

That's exactly right. Yes. And that, that, yeah, they basically took a guy.

And it's unlawful what?

Unlawful discharge of, um, there's a list of the, so there's three elements, the unlawful discharge or putting in a place where it can go into state waters.

Um, and then there's, it can be oil, asphalt, bitumen, oil, um, uh, petroleum, petroleum, um, distillate.

Can you just explain what, what a strict liability crime is?

Yes. So most crimes, um, have, you have to have, um, an act and a mental state.

So first degree murder, you have to, um, premeditated murder, right?

Where you intend to kill a person, um, stealing.

You have to intentionally deprive someone of their property.

So we ask not just what did you do, but what was going through your head when you did it?

Um, strict liability.

It's just the act.

So we don't care what was going through the person's mind when they did it.

And it's usually public welfare offenses.

Um, yeah.

It's as long as it happens.

Doesn't matter if it's an accident or not.

If you did it, you did it.

Right.

The city attorney, um, who I met, who was the head of their environmental unit.

He told me, he said, look, this trial is going to be, did the boat sink?

Was the oil on the boat?

And did he own the boat?

And that's it.

What does the police report read?

So it's not a police report.

It comes from a, um, uh, like a special investigation of wildlife and game.

Yes.

Yeah.

These aren't people who usually come to trials.

Um, so it was a fishing game warden, um, who had done, actually it's, it's a, not the

worst investigation.

Like the amount of work that went into this, it was basically from, um, when you think about

the investigations you get for like more serious criminal things where the guys facing years,

they had worked on this for almost nine months.

Um, and he, so the report basically says that on the morning that for, um, there was this

sort of cat and mouse game between his boat and the port of LA from spring 2017 till August,

uh, till October where he buys the boat from a friend who was dying.

And then the boat gets evicted from the port of LA because they have rules where you can

only be there if you're a commercial fishing vessel and you have to catch.

And you have to catch, this is not that you have to catch a certain amount of fish every

year to, to be a commercial fishing vessel.

So the guy who owned it before who was dying, didn't catch enough fish.

So then my guy buys the boat, um, they evict him out of the port and he goes out to the

ocean, I guess.

And then there was a storm and he was listing, which is like where I learned this was where

a boat's like tilting to the side.

And so he gets a friend of his to tow him back into the port.

And the war finger, who's sort of the landlord of the port comes over, walks along the docks

and says, hold on, that boat's not allowed to be there.

Get out of here.

And so he goes back out to sea.

And then for, according to the report, he kept popping up, like he would sneak in between

bigger boats at night to oil up and then he would go back out.

So he, he was, he was kicked out of the, the boating parking zone or something like that?

Or yes, there's, there's different ports where you can park different size boats.

So where is he, where is he expected to go?

Well, that's what he said.

They, they claimed they had given him suggested locations.

He said they sent him out to the ocean with nowhere to go.

And, and, and a boat that he said was in perfect working condition, but, um, they said needed some help.

And he was kicked out because he wasn't catching enough fish.

Catching enough fish.

He never had a chance because he got this boat and the prior owner had been, and they were sending eviction notices to the owner who was dead.

Right.

Um, but yeah, he had been kicked out.

So on the morning of, um, I think it was October, 2017, everybody gets a call that there's a boat that sank in the port.

That's at 2am.

And so by the time my client gets down there, it's 930 in the morning.

Cause he was, um, across town.

His, his mom was sick at the time and he was across town with her and he gets a call and they say, come down here.

You're the responsible party.

And by the time he gets there, it's all roped off.

The thing is they, they did an investigation into why the boat sink.

Right.

And they, he had, he said he had this guy, Frank, who was supposed to watch his boat when he wasn't there.

And so for nine months they tried to find Frank.

Um, and then they, he said that, um, they, I guess they had divers go underneath it and look around it.

But at some point they just abandoned that investigation and decided to file criminal charges without ever figuring out why the boat sank.

So he's out, he's kind of out to sea.

He's out to sea.

And then by the time we get to the beginning of October, um, he sort of had a soured relationship with the people who ran the port.

And so I think that's why he ends up getting charged criminally because they really didn't like him.

And is the warden involved in that process or no?

No, that's, that's the war.

This, what the, the role, her title was the war finger, which, um, this before trial, he, my client had built this woman up as like Cruella DeVille.

Like she, she got there and was very much like had worked at this job for like a year as a county, as some kind of county employee where you enforce a thing.

Now she switched over some completely different branch.

So that's her.

And his relationship with her is really bad.

Okay.

Why, why is that?

He claimed it was because, um, well, he told me it was because he was the, the, um, uh, uh, uh, he only spoke Spanish.

So he told me he was el primer pescador Latino de Los Angeles.

I said, you were the first Latino fishermen in Los Angeles.

He said, yes.

I said, okay.

He told me he was a capitán and, um, and that this was discrimination.

He felt like the, the reason their relationship was bad is cause he only spoke Spanish was.

So that was my working theory.

When I got the case, we had this big, big picture idea that we were going to, I was going to do.

Um, it was discrimination and, uh, that there was a conspiracy to sink the boat.

Somebody had, there was a saboteur involved.

That's what he, that's what the client wanted this to be.

Um, and so we, I, I workshopped that a few times around the office and that wasn't as good of a sell.

Um, or it was hard.

It was hard.

It was, it was, it's a big, you know, that's almost what we talk about.

Like, don't take on your own burden here.

Um, so what we ended up going with was why did the boat sink?

And so in, but the way I read the criminal statute, because it's proof beyond a reasonable doubt, even though, uh, he doesn't have to have any state of mind.

I, I thought there still needed to be some causation here that he had to do something that caused the oil to go into the water.

And if he's guilty, every single person who owns these boats out here is guilty.

And we're just waiting for him to sink.

And that didn't add up to me.

Like there has to be some other thing you do beyond just owning a boat on water.

Right.

Um, okay.

Um, let me ask you this then.

So, I mean, since you got this case sort of late in the game and it's close to trial, did you just go to trial on it then?

Um, I, uh, well, I, I mean, it's, it was my first trial.

So you do as much as you can, but yeah, I just went to trial and I, I had one pre trial with him.

And, um, I think it was a case that belonged in front of a jury because he felt, um, he, he was really upset.

I mean, I mean, when I met him, he was, he's an old, he's a 77 year old guy, uh, who had spent his life on boats.

He told me he was born on a boat.

He was a man with no country, um, and had, had sailed for all these countries and fished for all these countries.

And so he was a really proud guy and he thinks this boat was in some old Hollywood films and things like that.

And so, um, he, he felt like it was worth a lot of money, like $20 million and he got it for 20,000, but he wanted his day in court for the trial for this.

And so we had one pre trial and then two weeks later we went to trial.

So as the case is going, are you preparing for any witnesses of your own?

This was another theory I was going to pursue was over ownership to say that they took construct, because he basically had, had found a friend of his who works on boats and brought him down to the port of LA to come do work on the boat one day before it sank.

And because he wasn't allowed to be there, he said that this Warfinger woman had basically crunched the amount of, not given him enough time to work on it.

And so, because he didn't have time to work on the boat enough, it was her fault.

So I was trying to find that guy to talk about the experience that day because we had a witness statement from him that said our investigator had found him, but not subpoenaed him.

And we had a witness statement from him that said he was, um, uh, he was there and the woman was extremely rude with, with our client.

And so that's, that's what, so I was trying to get that guy, but, um, and I was also trying to figure out like, how do you subpoena somebody?

I had never done that before, which is these, I wouldn't, I don't know if you guys remember like your first trials, but there's stupid stuff that's stupid.

You're like how you, you know, you're next to it. How do I get a subpoena out your handwriting your own?

Cause it turns out there's other people who do these things for you if you just give them the names and addresses, but I'm like handwriting subpoenas and trying to figure out how to find the guy.

Um, but eventually we, we, we, we found him and he called me really upset in Spanish saying he can't come to court cause he was undocumented and he was really afraid of any trouble if he came to court.

Um, and I, he, he ended up showing up, but we decided not to use him.

So there was him, um, Frank was still missing the guy who was supposed to be on the boat.

He ended up being a useful character in the trial, but we never found him.

Um, and then I subpoenaed the, the person who had done the oil, like the environmental evaluation because part of his, his report said no conclusion as to why and how the boat sank.

Like that was not, that was written on a lot of reports.

We don't know why this boat sank.

And did you have a boating expert of your own?

No, no, I, I, I, I, my theme for the, well, no, because the, the theme I decided I was going to go with was, um, is a case about the ice.

Um, is a case about the, I don't knows.

And so I didn't really feel that.

I mean, I don't think putting on my own evidence was going to help a lot because our whole thing was, we, we don't know.

He was across town, 70 miles away or 30 minutes away in Downey, uh, when the boat sank.

And then he gets a phone call that says your boat sank.

And so I think putting on our own evidence here wouldn't have made too much sense.

Um, I wasn't sure if he was going to testify or not cause he was really like that.

He was likable, but also had like a tendency to speak in hyperbole.

When he met me, he told me, I am certain we're going to win.

And that was, and that's a little bit.

No pressure.

Yeah.

Yeah.

No, I mean, it's, it's again, I was like, well, I've never, I've never lost a trial.

I've never lost a count.

It's your first trial.

Yeah.

He said, I was like, you're, you're in luck, sir.

And he told, he told me, he told me he was a Capitan.

And I said, um, and I, and I was meeting the interpreter in him.

And I said, when he's crying at the preacher, I said, um, I said, yo no soy marinero, pero

for part of me, I'll be, I'll be a captain, you know?

Um, and which is La Bamba.

Yeah.

And, um, and, and I said, yeah, I said, he's like the ocean is my home.

I said, all right, well you do the ocean.

I do the courtroom.

Um, I said, and, and he said, after he went, I'm going to take you out of my big boat.

And I was like, and I was like, hold on.

Hold on.

I thought, and that's, I wanted to try to portray him as this working class fisherman.

And I think he, he was, I don't think he was.

As opposed to an evil boat pirate guy.

As opposed to a guy who claimed, I mean, he, but he, he's, he was a, he was too proud

for that.

He was like, I have caught millions of dollars worth of fish all over the world.

I've, I've fished for Mexico.

I've fished for Spain.

I've fished for all these countries.

Um, so he was really resistant to being portrayed to, to the story of like, which, what we usually

want to do, which is show.

David and Goliath.

Yes.

He didn't want to be David and Goliath, but he felt like an aggrieved, but still Goliath.

Hey, A&G fans.

Thanks for listening.

Got Facebook, Twitter, or Instagram?

Like us and follow us.

And please leave a comment if you liked this episode.

All right.

So then let's talk about the trial then.

Okay.

Did you have anything else?

Well, it just seems that your, your case really depends on defining what the crime is.

Yeah.

I had thought I got this and I, I was really excited.

I mean, I was, I was excited about it and I felt like Mike, my theory on causation made

a lot of sense to me.

But, um, other people I talked to were like, no, that's not how strict liability works.

That's a loser, um, legally.

Um, but I, I felt like it was a pretty good case.

Cause I think every, if I talked to anyone who wasn't a lawyer, like my mom, all they want

to know is why the boat sink it.

Duh.

I mean, you hear something say like when the Titanic goes down here, like how that happened.

So, so this is a case that the office gave you, they were saying, you know, that Patrick

guy, we don't know if he's quite ready for crimes yet.

So let's just give him baby steps.

Yeah.

Some say you could be a criminal lawyer.

Yeah.

Yeah.

He's the city attorney kept telling me, he goes, you know, if you get into this municipal

practice and you want to go private, you can make a lot of money.

I said, I'm literally three months into my career.

I'm like, let me try this first.

So, all right.

So, uh, are we ready to talk about the trial then Mike?

All right.

So you get sent out the trial, right?

Tell us about the, that experience of going in the court.

And I mean, is there anything you want to share?

Anything you remember?

Um, well I had had the, I was lucky that I had, I had almost had my first trial go two

or three weeks earlier.

And that was like a 12 count domestic violence situation where, um, we had made it through

like 402s and part of, and like half of the two days of judge voir dire.

Um, and so if you like, when you first go out to trial, all these things that you're

just like, what, what do you do?

Uh, what do I need to have with me?

Um, I had gotten to sort of have a false start and that one ended up pleading it before

jury during jury selection.

So for this one, um, I felt a little more on top of it.

Um, like I had my witness list.

I had done, I had done subpoenas, which was exciting.

I had, um, yeah, like you walk in.

Subpoenas, court orders, demanding people to show up.

It's, you don't have subpoenas until you do it.

Like, you don't, you don't, you don't get it.

Like you don't get what passing the bar.

Like you're like, hold on.

So I, I send a letter and that person has to show up.

Right.

Or technically that's a crime.

That's fucking wild.

And the judge doesn't even order it.

You just sign it.

You signed the court order.

I like, yeah.

Yes.

Out of law school.

Start signing course.

Telling, demanding people to come.

I had subpoenaed one witness who, um, I had decided not to use the environmental guy

and I didn't even realize he had shown up.

And someone's like, there's a guy in the hallway.

And I was, you just sitting there.

You're just like, it's that moment where you're looking.

You're like, I have all this power.

I walked out there.

I said, you can leave.

And he was like, oh, I'm, and he was like relieved.

I was like, I was like, I owe you an apology.

This guy's supposed to be over at the port of LA right now.

And he's all the way over.

He like making sure the environment, the ocean's okay.

And yeah, he came to court cause I sent him a letter.

So.

So, okay.

So go ahead.

Let's, let's get on to the trial.

So we get to 402s.

You get sent out, uh, you do 402s.

All right.

What, what are some of the 402s you had?

Um, I.

Motions to exclude evidence.

You want, you didn't want certain evidence coming in the trial.

Right.

So I had one that, that ended up being useful in a funny way throughout the trial.

So it was, it was to exclude any testimony or statements.

Um, uh, or reference to, uh, anything being oil or petroleum or whatever the list of substances.

It has to be without a proper foundation being laid.

And then I wrote my own and I said, proper foundation is, uh, chemical testing to show that it is in fact oil.

So I wanted to prevent them from saying anything about it being oil, unless there was evidence of an actual chemical test on it.

Like they would do in a drug case.

I like that.

Right.

Um, and that got denied right away.

Well, no, no, no.

So I filed that, I filed that on the first day, uh, which was jury selection.

And then, um, the next, and we, she didn't rule on it that day.

And so then the next morning after we had picked the jury, the, um, prosecutor comes in, he has his witnesses in the hallway.

And one of them is the coast guard guy.

And the prosecutor hands me these two photos.

And it's this coast guard guy.

One of them is bent up, bent over, like taking what looks like samples out of the water.

And the other one is him kind of holding up a cup.

It looks like an Instagram photo of him holding up a cup of water.

And I said, what, what are these?

And he, and he, the prosecutor says to me, I don't know.

I did the witness just handed them to me.

I don't know what those photos are.

And I said, okay.

Um, and so, uh, and this is kind of jumping ahead a little bit.

I don't, I know you guys do this chronological.

It's okay.

But, um, but the witness, when that guy was on the stand, I'm sitting there trying to figure out how to start the cross examination.

And I see this photo and I, uh, I pull it, I walk up to him.

I said, did you, you came to court this morning, right?

I said, and he brought some pictures with you.

He said, yeah.

So I walk up.

This is the picture.

Yeah.

And so I put it on the Elmo, which is the projector in the courtroom that puts photos up on the wall.

And I said, this is a photo of you taking samples, right?

Yeah.

Um, samples that you could use for testing.

He said, yes.

And I said, what inspired you?

To bring these photos with court into court today.

And I didn't know the answer, but I figured it was not a coincidence.

He brought this the day after I filed this motion.

And he goes, well, I got a call from, and he says, he said, he said, he said, they asked

me to bring, they asked me if there's any, if we did any testing.

And I said, who asked you?

And he said the name of the prosecutor.

Well, the guy, the head of the environment, you had had it before the prosecutor who handed

the case off.

And then I stood behind the prosecutor and I pointed right down at him.

And I said, wait, so-and-so, you mean this prosecutor's boss?

And he said, yeah.

I said, he called you last night after we met this jury asking you for any evidence of sampling?

And he said, yeah.

Yeah.

And so then for closing argument, I had this sort of section that was basically like, they're

telling you this doesn't matter.

Because their whole thing was, it doesn't matter why the boat sank.

And I said, you know, if it doesn't matter why the boat sank, why'd they do this whole

investigation?

So you get to do this.

I'm like, look, they're telling you testing doesn't matter.

And the guy's testimony was really compelling.

Like it was definitely oil.

I was really impressed actually with the Coast Guards.

But I said, if it doesn't matter whether there was testing, why is this prosecutor's boss frantically

calling the witness the night after we met the jury begging for any evidence of testing?

And the prosecutor objects, and the judge sustains it as to the word frantically.

I said, okay, excuse me.

I said, if testing didn't matter, why is his boss calling their witnesses the night after

we start the trial looking for evidence of testing?

So that was, that ended up being really useful.

It was like a good, for me it was a lesson in like, you can use the 402s to actually exclude

things or include things.

Um, but it's also a really nice way to like kind of, you know, it's like, it's almost like

a fake out and, you know, look over here and then send them on goose chases and stuff like

that, trying to clean up messes.

Right.

Just, I mean, it shows the lack of confidence on their side too.

Yeah.

Yeah.

All right, cool.

Um, so, so tell us how you tackled the voir dire in this case.

This was your, your first voir dire.

Yeah, this is my first.

Yeah.

So I don't think tackle might be an overstatement.

Um, but it went strict liability offense.

My voir dire.

So during the, I, my, um, they had had, uh, I mean, I was, I, we, people taught the only

really judge voir dire questions that were specific to this case were about environmental organizations.

If you give to anything.

Um, and there was one woman who was, who, you know, had said, you know, she thought of

like BP oil spills and things like that.

People talk about Exxon Valdez cause they, all they heard was the charge.

All they heard was unlawful discharge of oil into the water.

And so this, I really kind of wanted to spend voir dire talking about environmental destruction

and, and, and ex, you know, big oil spills and stuff like that.

Um, and then get to tell them like, this is not going to be that.

Um, and I kind of have a Southern twang about you.

You could be a big oil defense attorney.

I, I, I, you know, when I was in caught, what happened was in college, uh, we didn't have

a mock trial coach, but I found on YouTube, there was, um, a mock trial of Lee Harvey Oswald

that Jerry Spence did in the eighties.

So I used to watch that a lot to try to figure out how to do stuff.

And I think I developed this like fake Southern accent that just became, you're, you're a

California kid, right?

I, well, I'm from Sacramento.

Um, yeah, I am.

Yeah, definitely.

But my first job was cleaning horse stalls, but it definitely, I think, um, my, my girlfriend

in college got annoyed with my fake Southern voice, but it became my voice.

And then we didn't have to kick very many people.

I mean, there's just not a lot of people who are really going to have a, uh, I got rid

of the one woman who, who donated to all the environmental orgs and said, you know, this

is what I fight against.

And I just, I, I got a bad vibe from her, but, um, I didn't have, um, I, you know, I'm

not going to put, I didn't have the most coherent voir dire strategy.

I mean, in four trials and you're still, it, voir dire, you know, like the, just, just

talking about the burden of proof with the jury for the first time.

That was a mess.

My talk, it was a, it was a total mess.

Yeah.

I think one juror said they were on a civil jury and I tried to do that thing.

Okay.

So that's preponderance evidence.

Do you, can you explain that difference?

And I don't remember, it was like, you know, it's your first voir dire.

So there's about five minutes in the middle where I blacked out, I think.

And didn't like, I just, we just feel like I need to get back to something coherent here.

It's cool.

What was the prosecutors of voir dire like then?

Um, a little, he, he kept everything.

He, he would start all of his things with this expository phrase.

So voir dire began with like, so this is voir dire.

This is voir dire.

This is where we talked to you.

And then opening statement began with like, so that was voir dire.

And now this is opening.

And I think it's closing started with like, so pretty short trial.

This is closing.

Like, like he was not, he was, he was phoning it in a little bit.

I think, I think he definitely was like strict liability.

Sure.

Like I, you know, I think that's how, um, but he was very strict with the script there too.

Then it was very, he was not, he was loose.

He was, he was, he was a loose.

I'm like, he was, it was, he was a very like, I mean, I, you know, I'm a pretty conversational

person, I think in court and, and, and plan on that.

And he was, he took that to, he was more so I think.

So, um, but he, it wasn't, I think his voir dire was fine.

I mean, I didn't think he came off.

Um, you know, I, I thought, I thought he was pretty likable, but there was one at one

juror during voir dire, um, who asked, you know, when they asked if anyone needs to talk

to us on their own, let us know.

And the judge says, okay, stick around.

So this kid, he was this, um, college student from CSE Northridge and he sat and he said,

yeah, um, I find myself liking one of the attorneys more than the other one.

Um, and D and I don't know if that's okay.

And the judge said, I don't, I don't know.

And then this is out loud in front of the other jurors.

No, no, no.

This was on a sidebar.

Oh, sidebar.

Okay.

And the prosecutor asked.

And so then, you know, the, he, he says the piece and the judge lets them out.

And then afterwards we have our discussion and the prosecutor asks me if I want to stipulate

to getting rid of him.

I was like, no.

I said, cause I, I both knew you both knew you were the likeable.

I said, I said, I mean, I was like, I don't, I mean, I, like I said, I, I have this

point in my life, I've never lost a trial, never lost a count.

So I, I have no feedback to tell me I'm not the more likeable one.

Um, so yeah, my little ego, I was like, he's, he's talking about me.

He's talking, he's talking about me.

Yeah.

That's what I thought.

So, um, he didn't, I don't think I think he, and then the, oh, that's what happened.

The prosecutor kicked him with a peremptory.

Oh, that's messed up.

What's up, my A and G-ers.

Just want to say thanks for the downloads, likes, shares, and just outright excitement for what

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Thank you.

Um, cool, Mike.

That's the next question.

All right.

Opening statement.

Opening statement.

What, what, what are your thoughts on opening statement?

How important is that to you?

Um, I, I love opening statement.

Um, I think it's, um, I guess it depends.

I, I, I feel like more complicated things.

I, again, I don't, I don't think my thoughts are that relevant.

I think I can tell you what I've done in my trials, which is, um, I feel like I like

to tell stories.

And so that's, um, I don't know.

It's, it's, it, the prosecutor's openings are so often and everything up to that point

in the trial has been so dry.

I think a lot of the times you can, if nothing else, like wake everybody up with it.

Right.

And so here it's coming, it's refreshing.

The show's about to start.

Yeah, absolutely.

And so, and my client had told me that fact that he was born on a boat 30 minutes before

opening.

I was like, that's magic.

That's so good.

And so the opening starts with, um, um, I don't know.

Their theme was, I don't know if there was one.

It was just sort of this, this is a trial.

There's a boat.

Yeah.

Yeah.

So this is opening.

Um, and so, um, I said, uh, I think it was, it was basically, it's, uh, it's not,

it's 9:00 AM.

And, uh, he, so-and-so gets a phone call.

He needs to come down to the port and he runs down and, uh, he gets to the port and he gets

to the port and, and he's running and he's, you know, he's at his mom's across town and

he dread gets in his car and he drives over.

And when he gets there, there's police, there's coast guards, there's all these people around his boat.

And he runs over and he stands on the dock.

Um, he gets greeted by the name of the fish and game warden who immediately treats him like a criminal.

Um, and, um, that, and, and immediately starts an investigation into him.

And, um, so just this picture of him standing on the dock, crying, watching this boat go down.

And then everyone around you being like, uh, Hey, uh, you know, tell me why the boat, you know,

who are you?

Where are you?

Why did this out?

You know, um, um, but I told him, I think I said, you know, how the boat sank, why the boat

boat sank what happened on, you know, 2:00 AM on October 3rd, 2017.

I don't know.

I feel like that's just like your, your accent there.

Um, I don't know.

Sorry.

What happened on October?

Go ahead.

What happened?

You know, I said, I said, uh, uh, whatever.

I think I can't remember the exact phrase I used, but yeah, it was basically that it's,

it's, I don't know.

And I don't know.

And I don't know.

And, and, and got that in their head.

And so we started right there with that.

So we got it out them that I said, you know, how the boat sank, why the boat sank.

That's what this case is about.

So let's, um, who was the, who was the first witness for the people there?

The fishing game warden.

He basically just, they had him to come up.

They went through a lot of photos.

You know, sometimes prosecutors, like they haven't get up and he basically,

because there's not that much.

Their story is the boat sank.

Um, and so to beef up, to make their case sound like there's more going on.

What they'll do is make sure there's a visual exhibits to go with every single direct.

So they bring in like eight exhibits, which are just pictures of the boat.

And then they had him list off the names of items on the boat.

Like, he's like, what is that?

That's a fishing net.

What is that?

That is a post.

What is that?

That's a, um, a, a salmon bone.

No story really.

There was this.

No.

Yeah.

He's like literally describing objects on the boat.

And one of them was called a salmon boom, which is just one of those phonetic things

that you're like, we need to say this again.

There was one battle we had because the language they use in fishing game with strict liability

there, they label you the responsible party that's on all the documents.

Okay.

And I was objecting.

I was like, I don't want my client being called a responsible party throughout the trial.

That's for the jury to decide.

That's a trier of fact, you know?

And we had a whole sidebar where the, the witness, the prosecutor, I was like, you're

on my issues with the word responsible.

Um, and, and she's, and so the, she, you know, they try to come up with these narrow rulings

where the prosecutor is going to go over there and basically do what you're afraid of them

doing.

And so I think I told the judge, I said, no, well, I just am concerned he's going to go

back out.

Cause sidebars are all whispering.

I think it's super funny to have these little pissing matches at sidebar.

I'm like, my concern is he's going to go back over there and he's going to use the word

responsible.

And the judge goes, I don't, she's a really sweet judge.

She goes, I don't think he would do that.

And then he goes back over there and I can't remember what part that was like towards the

end of the direct.

And, um, I think he had, it was no further questions at that point because he didn't,

he could, there was no alternative to call.

Like who was the, that was the big finale was like, and who was the responsible party?

This guy.

Um, so the cross was going back up with, um, going through each part of the boat that he

had talked about.

And I was like, so the net, then you said it was a net.

He said, yes, that did that cause the boat to sink?

I don't know.

And because the thing, when you go with the case about the, I don't know is the goal is

to have the word, I don't know stated as many times as possible throughout this trial.

Yeah.

That's just, it's an easy thing to work with because if you have something with if you can,

cause it's an easy forward to get out, it's easy to lace through all your stuff.

So, um, I was like, so the, the, the, the net, did that cause it to sink?

I don't know.

This little like pink thing, did that cause it to sink?

I don't know.

This thing, what all was that called?

The salmon boom?

Like, yeah, the salmon, the salmon boom.

Did the salmon boom cause it to sink?

I said, no.

No.

So I don't know.

Um, and then I, they had also had, there was a report they got, uh, the first person,

the person who actually saw the boat sink, the first guy to find it was this guy who reported

at like 2 AM and it's on one of the documents, just this, it was like, they put the first initial

and the last name, like how they do police officer names sometimes.

And I was like, I can't, I don't, I'm going to make up a name like, like G Aparicio.

Did you ever, did you ever reach out to G Aparicio to see, uh, to interview him?

He said, no.

I said, so the, the person who saw this thing first, who first got there, nobody ever tried

to call him to talk to him?

No.

And then that guy, Frank, who the irony was he was my client's employee, which for

strict liability, you're always, it's just still your fault.

But they had gone on a look on a hunt for Frank all year.

And he was on the prosecution's witness list.

And the morning of the prosecutor, the morning of trial, the prosecutor tells me, oh yeah,

Frank, uh, we, we found it, but he's in a mental hospital in Arizona.

So he's not going to be coming.

And I said, okay.

I was like, so, so Mr. and I said, Mr. Garcia, you also went looking for a guy named Frank

all year.

Right.

And then I, they had a, we had an, a witness statement from, uh, I think he had talked to

our investigator.

Somebody had, and I guess the, the prosecution's, uh, investigator, they gave us a witness statement

where they had followed up with the guy and they had gone looking for this Frank.

Like they had gone back and forth with a copy of his driver's license.

And I said, so eight months after the accident, after it sank, the, their investigator was still

calling you trying to find Frank.

Right.

Cause I wanted to make like, where's Frank, a big issue in the trial.

I think if you can, if you can have a missing person, like for a jury, any missing person

who's not there, who's even marginally relevant becomes really interesting.

Did they check the boat for Frank?

Was he inside the boat?

He was, he might, he like, he fucking might've been.

He was supposed to.

Hey, knowing Frank, right?

Well, my client was like, when I'm off the boat, Frank's supposed to watch it.

So I think for, yeah, I mean, ultimately like it is Frank's fault.

Like Frank got, got off the boat and got drunk somewhere.

Um, but yeah, so, so they had, they basically, you kind of use their own investigation against

them.

Like all the things they had tried to, the threads they pursued.

The, so the Warfinger's the next witness.

Warfinger's the next witness.

And what was the issue with the voir dire?

Like, what did you want to not let this, the Warfinger testify to?

Cause she, yeah, they wanted her to come testify.

This wasn't a good boat, which offended my client.

Like nobody's business.

She's like, she was going to come testify.

It wasn't seaworthy.

Um, and she wasn't qualified to say it wasn't seaworthy.

So we went through all the, her lack of expertise.

What are her credentials?

She didn't have a lot, like they wanted to use her for more than she could say.

And she came in, I mean, I met her in the hallway and she couldn't have been nicer.

Like I felt like she was really nice.

And I was like, this is, this is not going to be the racist saboteur that you were hyped

to be.

Um, and so, um, she, she, and she really didn't remember a lot.

Cause again, she had worked, she worked for the port for about one year.

Uh, like a lot, you know, our jobs, you're, I'm a, I'm a level one public defender.

After one year, you become a level two.

She was a Warfinger one.

And then I think she now works in some other office with a completely different branch of

the, of the county government.

Why are they called Warfingers?

No idea.

What is that?

I have no idea.

No, no, not war.

W-H-A-R-F.

Warf.

Warf.

It might be pronounced, it might be pronounced Warfinger.

Warfinger.

Warf.

Two Fs in a row.

Warf.

Finger.

Warf.

Warfinger.

Warf.

Warfinger.

So yeah, she, I don't, I, I don't remember what I grilled her on for a 45 minutes.

I remember it being long cause the judge was upset that we were still going.

Um.

Are you just, are you grandstanding for your client?

The jury's in the hallway.

Yeah.

A little bit.

What were you trying to limit?

The only person who was going to be able to point to the boat sinking being his fault

because she had seen the boat when it listed and then the mast had actually fallen over

in July during the great storm when he had the first.

The great storm?

Yeah.

It was like a great storm that forced him to get towed back into port.

That's how he got back.

Oh, the one of 2018.

Yes.

The great storm.

17, but yeah.

That was a 17.

Yeah.

Great storm.

Um, it was, it was a bad one.

And, and so she saw the boat all fucked up a few times, but we got it down to just lay

witness like five sentences.

So I'm like all she was able to do, her actual testimony in front of the jury was maybe 15

minutes.

What'd you try to limit from her?

The eviction, uh, the, the, the back and forth email, the contact with him, him being told

he's not allowed to be there, him secretly getting his boat towed back into port.

Okay.

Um, her observation, the boat was not seaworthy.

Um, and what did the judge rule?

That she could testify to that the boat was that they all the most of that was irrelevant

and she could testify the eviction didn't really come in.

So you were successful in your voir dire.

For the most part.

Yeah.

On your first trial of a not first trial, you had the balls to ask the voir dire witness.

You try everything for, you don't know better.

So you just start throwing out concepts you've heard of and you're like, let's voir dire

a witness.

I want to do all of it.

Um, she wasn't an expert while daring and non experts, pretty, pretty calm.

Right.

Cause you're just like, what?

I don't know.

I, I, I think that's impressive.

Thank you.

Um, that's well like Mike.

Yeah.

The, you know, I'm not impressed.

The towing that seems relevant, right?

Getting towed back in.

Right.

Like he knew there was a problem with that come in.

No, no.

I think it just came in that it was listing and that they, she saw the mass tipped over

once like slightly cracked.

So, all right.

So we just had a couple problems up, which is fine.

I mean, there was, you can say there's problems on the boat, but again, you need to leave

these people with an abiding conviction that the boat sank because of him.

And so saying you saw it tilted a little bit one day, that's not, that's not proof beyond

a reasonable doubt that it's his fault that the boat sank.

So there was a lot missing.

Oh yeah.

Yeah.

So she was, yeah, you, you, you kind of, you destroyed that witness before the jury even

saw her then.

Sure.

Sure.

You know, like that was nice.

You took all the wind out of her sails.

Is that a fishing game term or?

Yeah.

That just, that took us down a notch.

Yeah.

Yeah.

Took all the wind out of her sails.

Yeah.

I think, I don't think, I don't think actual sailors say that.

She's, man, you took the steam out of that.

For land people.

Yeah.

I think so.

All right, cool.

And so then who testified next for the people there?

The, um, the oil, his name was Chris.

The big government.

Who testified for the big government?

Right.

He was from the Coast Guard.

Um, and the other thing was that the boat, we didn't know where the boat was.

That was the other big thing.

I think the fishing game, like the, the, the, he was the oil.

The coast with the Coast Guard.

Um, and he was, he, he came in to testify that it was oil because they had to establish

that element.

And like I said, before trial, I had done the stupid like testing thing, but, um, I did have

an issue.

I was like, they can't just have someone come in and say it looked like oil to their credit.

And this guy has done like 500 oil spills.

He goes, he goes into the detail of like, well, you can tell if it's slightly expired, uh,

red dye oil because of, you know, the, the smell and the sheen on the water.

Like he had this really, I was, I was really impressed with his testimony.

Like you see oil and water has like that rain, kind of like a rainbow or different kind of

colors.

Right.

Yeah.

But, but he could tell by like the different reflections, not just that it was oil and water,

but what kind of oil, whether it was expired oil.

Um, it was one of those moments when you kind of, again, you have them in trial where you'd

listen to other witness and the other side's witnesses and their evidence every now and then

you're like, interesting, pretty compelling.

Yeah.

Like I was like, I feel like I would absolutely, if I'm on the jury, I'd be like, please don't

argue this wasn't oil.

This, but ultimately this, this witness was irrelevant for you.

Right.

Well, no, because, well, no, he was, yeah, he was also relevant.

He fit into this pattern of, they say it doesn't matter.

If it doesn't matter, then why are they doing this?

So they say Frank doesn't matter.

Frank doesn't matter.

Why is the city attorney's investigator trying to hunt down Frank nine months later?

In this case, we got to bring in his photos, which is a really great trial moment.

And then the other thing that had happened with this guy was, um, the actual, I got to

kind of get into punishment a little bit, like not on purpose, but through witness credibility.

Right.

Um, because the, the cost they wanted out of my client, they had an itemization of where

they were coming from.

And there was three, it was basically the labor costs of three people.

The environmental guy who I had subpoenaed, who I didn't use the fishing game wardens costs.

And this witnesses costs.

And so they basically, I said, you know, when you, you, one thing you do when you're doing

these investigations is you report your hours to, um, I don't know who it was to like the

fishing game to the investigator.

Right.

And you know, that's important because the, um, because those hours ended up being what,

what they use to determine the costs.

So people like my client end up having to pay them when they get found responsible.

So it's important to be accurate about that.

And his hours he had reported at was a perfect 20 hours.

Um, which if you've ever done your own timesheet, if it's an odd, if it's a multiple of five

or 10, you're like, that's bullshit.

Um, so like, um, um, so he, he basically had on the stand testified to how long he spent.

So it seemed like this stupid thing.

He like basically had testified.

He worked six hours on the case and to get to 20 hours, he wouldn't need to, he wouldn't

to get the, to, to, he testified, he had worked about six hours on it.

And to get to the amount of money, uh, that he claimed he, he, it cost him, he would have

had to work 20.

So we had that little thing like stupid, like you lied.

You inflated your, like a government worker inflating their hours.

So that also was made for a section of closing of like, this case is everything we don't

like about government.

Nice.

Um, and did you do, did you do the, I don't know's with the, yeah.

And, and last question, sir.

I mean, how did the boat sink?

I don't know.

Why did the boat sink?

I don't know.

Well, you know, I'm not sure.

It's unclear.

Cause nobody knew where the boat was.

Cause I think the coast guard had impounded the boat.

Like they took it from him and told him it was theirs now because of it was part of an

investigation.

So the boat was seized, but none of the, none of the witnesses knew where the boat was.

And I knew that.

Like how's your client been during the trial?

He did a good job.

I think of, you know, one of the advantage, the big things that you guys don't get as

much in felonies.

When your client's out of custody, um, they also have to wait in the hallway for the court

to open.

So there's that experience for them.

And I think where the jury really sees them out in the hallway, like very much one of

us.

Cause you're all just forced to come to court, forced to sit here, forced to wait for the

door open.

And I thought he, so that, that sort of like the little theater of it, um, he was great

at and not, and not on purpose.

He was, he was a very like authentic guy.

You develop a relationship with the client through trial.

It's really nice.

Right.

We had a good time and the interpreter was, um, really, really great for us.

She really liked, I think me and him together.

I think she thought we were really, ever since the La Bamba moment when we first met, I memorized

the words to La Bamba in high school.

So I was ready for it and it came in handy.

Finally.

This was the trial you were born to do.

I would say it really was like everybody, everybody was very much like, this is very much

your, a good first trial for you, I guess.

So tell us about the prosecutor's closing statement, closing argument then.

So this is closing argument.

Um, and he started it by saying, so quick trial.

Um, and then, um, went through his, he held up the photos of stuff that they had.

Um, he went through, we know he owned the boat because there's no dispute about that.

It was a lot of, there's no dispute.

There's no dispute.

There's no dispute.

Um, cause there wasn't about the facts.

I mean, we know he owns the boat.

Um, he touched a little bit on it being listing or broken, which is where he, I think I would

have, but I mean, he had a tough job because he had to either, you know, if you're trying

to say it doesn't matter why he's making a legal argument, it doesn't matter why this

thing sank.

Um, so he can't really spend time on why it sank.

And so that was his closing argument was, I mean, it was, it was, I'm telling you, it

was like an expository, like stream of consciousness.

Like we, you know, moving on with, so tell us about the, your closing argument.

Then I think I took what they told me a pretrial, which is like, they will, they try to tell

you this trial is just, did he own the boat?

Did the boat sink?

Is there oil in the water?

But we all know that's not it.

You can't, you know, say he's guilty of a crime of that.

He's a criminal label.

This man, a criminal.

I think I was like, I always liked that phrase.

Cause you can't talk punishment, but you can, we're definitely labeling him a criminal.

Um, without telling him, figuring out why, you know?

And there was just a lot of like, what's missing here.

And then the thing, the classic, like, and I don't know after I don't know after I don't

know is not proof beyond a reasonable doubt, which I think is a line that somebody put on

like a mock trial YouTube 10 years ago when I was like 19.

And I think I ended it with, uh, telling the juries, you know, these facts are yours.

Now, uh, do not treat them like the prosecution has like a piece of Play-Doh that you can stretch

and twist and mold until it looks however you want it to.

You know, um, the, the burden of proof doesn't just protect defendants.

It protects jurors.

Cause you're not supposed to walk out of here feeling like you got it wrong.

You know, I've never, I've never heard the Play-Doh one before.

Is that your own?

Yeah.

Yeah.

Nice.

So, um, tell us about deliberations then.

How long was the jury out for?

Uh, 20 minutes.

Like I left, I left and, uh, um, yeah, I was, it was, I, I went upstairs.

And I, how'd you feel?

Did you feel after your closing, did you feel like you were winning?

Yeah.

Um, I don't know.

I, I, I, there was one.

Yeah.

It's your first closing argument.

So you don't really know.

There was one juror who, um, had just, there's just one expressive, like older woman.

It was like, I think juror number seven.

And so there's, she, it was one of those ones where afterwards you're like, I don't know.

I don't know if we're going to win, but I don't think we're going to lose.

Like that woman's not going to convict him.

She, she was making, making a lot of like faces and stuff.

So tell us about what's it like then when the waiting for the, when the, when you know

there's a verdict, the jurors all come back in.

Yeah.

Yeah.

Yeah.

I told him he had to wait around the hallway and then I went up to the office and then,

um, was sort of like still talking, you know, people had watched it and asking how it went.

Like just literally the instant conversation after.

And then all of a sudden my phone goes off and you get a text.

Like we, and what the, what the clerk says, it's super dramatic.

The clerk text you get or the, the judicial assistants, their text says, we have a verdict.

Yeah.

Like, Oh, and, um, cause you're, you're up talking with all your fellow colleagues.

You're going through the training program with, right?

Like, yeah.

Like, yeah, no.

They all come down.

And you all run down together.

So when you start now, so for me, I, we were talking about this before the podcast, but

in the last couple of years, LA, we've hired like a hundred new people.

And so when I, so you just get to start with all, it's such a cool, it's like, it's the

same reason people had such a good time in the dorms.

You know, you're all at the same stage of life.

You're all in the same place.

It's new.

It's just, it's a really, everybody wants this.

I mean, to become a public defender when you've been trying and waiting so hard.

In LA County.

And I almost went to up north.

The cream of the crop, LA County.

Go ahead.

I don't know.

I was going to work.

I was going to work in, um, a smaller county and I'd asked them, you know, I, you know,

I was going to be lawyer number 13 to 12.

And so then I got the offer here and I was really excited.

And so, um, yeah, it's really fun to do, to do that with other people.

I mean, it's like shared experience.

You know, life's always better shared, but with a group of young people at the beginning

of their career.

And then, I mean, you have the old or like old, the felony lawyers.

They love to tell you, people love to tell you like misdemeanor row.

Best time of my career.

Best time.

And you're like, like, you're just trying to, you're just trying to stay present.

You're like, all right, let me not live in.

Look at that.

It's depressing when you're like, well, like I love the job, you know?

Um, but yeah, so I get the text that we have a verdict.

And it's a, I mean, I, once, once it, when it was that fast, I figured we, I mean, I

guess you figure you want, I, I, I didn't think they went out and convicted this guy

in 20 minutes for this car.

Like they would have had to go through too much to figure it out.

Um, but I don't know why the boat sank and we, nobody knows why the boat sank.

It was so simple.

Um, that if they came back that fast, I figured we got it, but it's still, they read it to

you.

Um, the jurors got out of there quick.

We didn't get to talk to them, but they, um, the, my client, we went, we, we went out

in the hallway after and he's like, asked me, he's like, so, uh, when is the next court date?

And I said, no, no, I said, we, we, this case is over.

I said, you won.

And he's like, and then he got all puffed up and he teared and he, and he, and he said,

um, he said, he said, la proxima gran pescadero.

It's party.

The next big fish is for you.

Um, so you've been on the big boat yet or no.

So no, I haven't, no, but I haven't, I haven't gone out on the big boat yet.

Um, so, but anyways, you're also like, you're kind of a fan of the podcast or like you said,

you listen, I told you, I told you that I think this is a cool story.

So your podcast, um, is a good, I mean, all the young lawyers like it.

It's a good resource.

Like I said to you yesterday, it's like, um, it's like they say, I think business school,

they do case studies.

Right.

And we don't have that for criminal defense work.

And that's sort of what this is.

I mean, it's fun.

And obviously we're talking about wins.

No, I think it's a really, it's a good, it's a good thing you guys are doing.

So, uh, all right.

So you, you've been, you've been wanting to be a lawyer your whole life.

You've even, uh, changed your, uh, speech pattern and tone of voice to sound like certain lawyers

on television.

Uh, you've done mock trial from age 14.

Yeah.

Uh, college, the mock trial law school, the mock trial, but what, but I mean, you could

be a lawyer at any type of field.

Why'd you want to be a public defender?

Yeah.

Um, uh, I think, um, well, I got, like I said, I, I got to get in trouble some, you know,

and, uh, my, my dad also, you know, went out to DUI school.

I was a legacy there.

Um, um, but, but you know, my dad sat in this seat, watch the same shitty video from the

eighties that you're about to watch.

Um, but, uh, but I was also like always, you know, I was a student.

I was like a blonde haired, blue eyed white kid.

Um, and there's just certain, I think, literally I get, I think people should be allowed to fuck

up and get in trouble.

And I mean, it's fun to defend people like this guy with the boat and do it, but like,

I really think, you know, sec, you deserve second, third, 15th chances.

Right.

And so, um, and so getting to, to help people stick up for themselves or there's a, there's

a country song where he says, um, uh, you found love and it went away and you're looking

for that perfect thing to say, but you're not too good with words.

That's okay.

That's why I write songs.

And so our job, you get to find people who are really not great.

It's not great at telling their own story, but they have stories to tell.

Um, and they really need the help.

And then, um, it's just a place where you get to do all that.

And then after, like I said, I took a little detour to try to be a standup comic and you're

standing up there and you're like, why are you people here?

What is the, what's the point of this?

You know, and I have friends who are creative people and trying to do that for their profession.

I think that's so hard, but I really like the, um, the tangible, like, you know, whatever

the outcome of your work is like we, I know what difference I made right in this guy's

life.

It's really specific and really right there in front of you.

Nice.

Thanks for being on the show.

Thank you.

And Mike, thanks for, um, going to work today so you can do the podcast tonight.

You know?

Just for you, David.

Yeah, I appreciate that.

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.