Is That a Burrito in Your Pocket …? When the system serves up injustice, this defender serves up freedom. 🌯⚖️

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. Without further ado, here's this week's episode of Another Not Guilty.

She doesn't speak one word of English. I mean, the prosecutor must have asked her 12 times if she speaks any English. The cop gets up there and testifies after her and says, "She told me everything in English."

Yeah, and honestly, that wasn't even the most ridiculous thing that happened during the trial. And she's 100% ... She's not just sure, right? She remembers the details of that bag. But it wasn't a McDonald's bag. Just like it wasn't his penis.

You know, he's not just up there testifying as some witness who gets to go home after this and be done with it. You know, he's up there looking at a potential sex offender registration for a crime he didn't commit. That's what he's up there testifying for.

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-guilty public defenders get on a daily basis in an unjust criminal system with a deck stacked against us.

Another not guilty.

All right. Welcome, everybody, to Another Not Guilty.

Another Not Guilty.

I'm feeling very excited about today and this episode. We'll get to our guests in a second, but we have a stellar co-host lineup. We got yours truly. We got Nikhil. What's up, Nikhil?

Yeah, what's up, man? How are you?

Good. How you been?

In the trenches.

In the trenches, of course. And we also have Miss Allison with us as well. Yeah.

Hello. Yeah. You know, I think last time we did a trio, we forgot to introduce Allison like 10 minutes into the episode.

We did. We did.

You're right. And then I like popped out with a brilliant question and you both were like, what? Who is the voice?

Episode 13, finger-licking good defense.

You got the episode down cold, man. You are right. All the real fans will appreciate that.

I was going to say, I listened to the beginning of that. I definitely didn't hear you in it.

No.

Well, you got 10 minutes in.

Yeah, you got it. You just outed yourself as not listening to Michelle.

Whoa.

Yeah. Of that episode specific.

Yeah.

Why is this guest even here?

Yeah.

You missed the best part.

Are you just the Cliff Notes version fan of Another Not Guilty?

I recently learned of Another Not Guilty.

Right.

How'd you learn about Another Not Guilty?

Well, I was approached by someone in the office who seemed to be genuinely interested in my trial that was going on.

And I was like, oh, weird. You want to talk about my trial? Sure. Let's do it.

And then I'm in his office talking about it and he asked me if I wanted to be on his podcast.

Oh, that's you.

And then he sees the expression on my face and goes, oh, you thought I was genuinely interested in your trial?

Girl got played, yo. She got played.

Just trying to get content for the site.

Wait, honestly, did you think he was hitting on you at first?

No. I thought that he was apologizing for not paying any attention when I came in to tell him about this conflict that he had to declare.

Oh, that's how it all started.

She had a misdemeanor client that was our felony client.

She came in to tell me about the conflict, but the case wasn't on calendar for like another three weeks.

It was on calendar that day.

Well, and I already called my case and sent my guy away for the day.

No, he was in custody in the building.

Okay.

Well, I was busy doing something else.

I'm a big time felony lawyer.

Okay, I can't be dealing with these issues.

So I go into David's office and he just goes, I can't deal with this right now.

I'll deal with it later.

I was like, okay, whatever.

A day in my life.

But then when the case comes on calendar again, I'm like, hey, what's up with that conflict you were telling me about?

Yeah.

I became interested.

Can you specifically tell me exactly what the conflict is so that I can relay that?

We're going to write it up.

I have to write it up.

I have to write it up.

Do you want to write it up for me?

That'd be great.

I could do it.

I felt like that question was coming.

But then she was in trial and I was like, oh, cool.

You're in trial.

Tell me about your trial.

While you're trying to ask me about this conflict, I don't have time to run the conflict.

All right.

Let me care about what's going on in your world.

Tell me about this trial.

And it piqued your interest.

It piqued my interest because it was a good trial.

It was a good one.

And Sam's defense was on point.

She knew her case.

And she came in the following week to tell me that she got the not guilty.

All right.

Another not guilty.

Sam, it was your first not guilty, right?

It was my first not guilty and my second trial.

Let's go.

Sam, guys, listen.

Sam is a new lawyer to the office going through the training programs of the public defender's office.

So, Miss Sam, what were the charges in this case?

So there were four charges, 242, simple battery, 243.4, a 647, and a 314.

Okay.

And what's a 243.4?

It's an aggravated sexual battery.

And what was the third?

640, what?

647, the annoying molesting a child, 647?

No, no, no.

It was lewd and lascivious conduct.

Thank you.

And then 314.

314.

Okay.

And 314 is what?

Exposing yourself.

You know, those are just misdemeanor charges, but these specific charges are a little more stressful.

Why are these charges more stressful?

Right.

So two of these charges, if you had been found guilty, he would have had to register as a sex offender.

For how long?

For life.

Lifetime consequences.

Well, in January, the law is changing.

So it's going to, you know, be 10 years.

A tiered system.

A tiered system.

A tiered, thank you.

And that's still 10, 20-year life.

Right.

And for a 21-year-old kid, I mean, regardless of whether it's one year, 10 years, five years.

Right.

You know, it's devastating.

Yeah.

For someone who has no criminal record, who is innocent, and also is 21 years old.

Who's in his 20s.

You end up on a public database, which is like a scarlet letter, right?

Like, so people can look you up and see what the alleged crime you committed, a picture of you, where you live, right?

You get criminal penalties if you fail to register in accordance with like 20 different requirements.

So, I mean, it's a pretty onerous requirement.

Right.

In terms of misdemeanors, I mean, I think it's...

It's the Holy Grail almost.

Yeah.

It's pretty much the worst consequences that there are.

And, you know, he works, during the summers, he works at schools.

So he works with kids.

He wouldn't be able to do that anymore.

Yeah, there's employment consequences for law.

Yeah, I mean...

Let's start for this.

Yeah.

What were the prosecution's facts of the case?

Yeah.

What was their side?

The police report?

What was their theory of the case?

So that was really interesting.

So we got this police report that said all kinds of crazy shit.

I mean, the police report said that basically our client was on the metro train during rush hour

and that the complaining witness, you know, felt something touch her butt, moved forward.

Client follows her, feels it again.

And she turns around and she sees my client masturbating onto her, is what the police report says.

And we're talking, you say rush hour, so crowded train?

Yeah.

4:40 in the afternoon, Union Station.

So was the police report alleged that his penis was exposed on the train or was it like

she saw him like manipulating his penis inside of his pants?

No, the allegation was that she saw his erect penis outside of his pants on the metro during rush hour.

Wow.

That is what the police report said.

So when you first receive the case, that's what you think you're dealing with based on the police report?

Well, yeah.

So that's what the police report said.

But we had interviewed the complaining witness.

Her statement to the investigator was so different than the police report.

I mean, I mean, really, the conduct in the police report was way more egregious

than what she told our investigator.

Oh.

What's to say to the investigator?

So to the investigator, she said that, you know, she's on the train on the train at rush hour.

She feels something behind her.

She doesn't really think anything of it.

She feels it again.

And, you know, she turns around to look and she sees the client,

our client holding a McDonald's bag in his left hand and his penis is out.

And that was it.

So I'm sorry.

She said erect penis.

But there was no mention of the masturbating.

There was no mention of, you know, her seeing him and moving forward.

There was, you know, I mean, I think there's a pretty big difference between

saying someone's masturbating onto you and saying you just see their penis, you know,

as you're getting off the train, basically.

I agree with you.

Is there video?

Metro, yeah.

So public carrier, right?

There's got to be video, right?

Yeah.

I mean, my understanding is that there's video cameras inside of those trains.

There was no video.

There were no other witnesses.

Not one.

On the crowded metro train.

From the metro train at rush hour.

Not one single other person.

And how, who calls the police?

So client gets off the train and the complaining witness follows him.

Follows after him, right?

She liked what she saw.

I'm sorry.

I'm sorry.

I'm sorry.

Oh, my God.

So much editing.

No, no, no, no.

We don't have to edit it out if a female makes the joke.

That's why we have Miss Allison on the podcast with us, guys.

Makes it all okay.

Because we all know what we're thinking, but only she can go there.

All right.

So she liked what she saw.

Let's get out of the gutter.

Let's return to the interview, okay?

She followed after him.

Okay, so she followed him out of the train.

Union Station, you know, there's a few platforms, and then there's the Silver Line bus on the outside.

So she follows him all the way to the outside of the metro, and she finally sees, you know, two cops there and kind of flags him down.

At that point, you know, she only speaks Spanish, the complaining witness, and the cops don't.

So they go and get some random, you know, MTA student worker to come help them translate, while one of them chases after my client.

Wow.

So this huge, giant municipal law enforcement agency in a giant city that actually the city's name is actually in Spanish.

They can't speak Spanish, and the best resource they have to interview a witness, a complaining witness, is to get some random municipal employee that claims to speak Spanish to interpret for them.

Yep, and that became, you know, the fact that those cops didn't speak Spanish, that became a huge fact at the trial.

Oh, I'm sure.

Well, because that could kind of explain why the police report made everything sound so dramatic.

That, and also, the cop, the only cop that testified, got up on the stand after the complaining witness had testified and said,

she doesn't speak one word of English.

I mean, the prosecutor must have asked her 12 times if she speaks any English.

And she says, no, I don't speak, using an interpreter, obviously, during the trial, I don't speak one word of English.

I don't speak any English at all.

The cop gets up there and testifies after her and says, she told me everything in English.

Right.

Boom.

Perfect.

Wow.

Do you, like, react when that happens in trial?

Well, apparently, I have no poker face, according to the jury, so I'm sure I did react.

Well, I mean, that's something I don't, did you, did you, that was something you anticipated, though, right?

That was, like, a total surprise at trial, right?

I did not anticipate the cop getting up there and blatantly lying about how he communicated with the complaining witness.

I feel like that's something that you can't be poker-faced about sometimes in a trial.

You get some crazy piece of information like that, you got to react the way you want to react.

Did you look to see if the jurors, like, I mean, like, were on the same page with you, or did you log in contact with the jurors?

No, I think I was just so busy, like, putting a giant star in my notes next to what he said, so that when I got up there to cross-examine him, I could be like, you know,

oh, and you spoke to the complaining witness, and you spoke to her in English, right?

Because you only speak English, right?

You know, you don't speak any Spanish.

And he had testified on direct that he doesn't speak Spanish because his mother wouldn't let them speak Spanish in the house, right?

So we just went deeper and deeper and deeper into this line of questions.

Wait, wow, you got some, like, personal detail why he doesn't speak Spanish is because his mom was...

Oh, yeah, he was more than happy to volunteer that information.

I mean, he had no idea.

He had, the cop had no idea what was going on.

Wow.

Wow.

I mean, I feel like we completely jumped ahead here, but...

That's okay.

This is great.

That's fascinating.

Yeah.

Yeah, and honestly, that wasn't even the most ridiculous thing that happened during the trial.

All right, let's jump back then.

So was any other pre-investigation, pre-trial work done on the case?

Yeah, so we tried to talk to the MTA student worker.

Okay.

But she was AWOL.

I mean, our investigators couldn't find her anywhere.

And so was she, was her role essentially just a translator?

Yes, her entire role was a translator, which, you know, ended up being kind of important

because there was no way for the prosecutor to get these statements in, these alleged statements

in, unless they could prove that the person that translated them was what we call language

conduit, right?

Yeah.

Because she has to be sufficiently fluent in Spanish and English to be able to translate

it so that it's reliable.

You talked to the client, right?

Oh, yeah, of course.

And the client testified, right?

The client did testify.

What's the client's version of what happened?

The client leaves work at the, I can't, a middle school that he had been working at for the

summer.

So each summer he's, you know, kind of placed at a different school within L.A. County by

this basically fellowship program.

And how old is the client?

He is 20, I think he just turned 22.

Okay.

He was 21 at the time of the alleged incident.

So the client is literally a choir boy.

I mean, he sings in his church choir.

He teaches Sunday school.

He has never, ever, ever, ever had any run-ins with the law.

I mean, any.

His parents aren't even divorced.

I mean, like, he, like, he, he's a poster child for, you know, innocence, essentially.

I mean, he really is this shy, timid, you know, just freaked out kid.

And so what, you meet him and what does he tell you what happened?

He tells me, you know, he left work, he picked up Chipotle, he got onto the metro at Wilshire

Vermont, he gets off the metro at Union Station.

Sorry, we have a big Chipotle fan here.

Especially at Wilshire, Vermont, Chipotle.

I feel like I could have been a witness in your trial.

You've literally just named my routine.

Alice and I just had lunch there today at that specific Chipotle.

Like, everything you just said happened to us today.

Oh, my gosh.

Well, the Chipotle, the Chipotle bag ended up being a huge other thing.

I would say that because earlier he said that the complaining witness said McDonald's.

And I, listen, no personal knowledge, but there is no McDonald's right there.

Let me tell you.

And did you say, how did he get arrested then?

So he's walking towards his bus.

Did I miss this?

He's walking towards his bus and he's eating his Chipotle at this point.

He's starving.

And all of a sudden he hears, you know, the jingling of keys or something behind him.

And he turns around and he sees these two cops, like, clearly following after him.

And he's like, what's up?

Like, what's going on?

And they were just like, this woman says you exposed yourself to her.

You know, you need to come with us.

And our poor client is like, what?

You've got to be kidding me.

Like, what woman?

What are you talking about?

Watch the video.

I mean, he must have told them 10 times, watch the video.

Can you pull up the video footage?

Like, aren't there videos?

Like, please just, like, watch it.

Is there a body-worn video?

No body-worn video.

Okay.

Not even, there's no body-worn video of the arrest?

Oh, because it's MTA.

Well, no, it was LAPD, but they're the metro division.

So, and they don't have body-worn?

So, I guess only some of them have the metropolitan division.

Hello, this is David from Another Not Guilty.

If you like this podcast, go ahead and follow and or subscribe.

And don't forget to leave a comment in the link.

And check us out on Instagram, Twitter, and Facebook.

Thanks.

So, he's just going to work, riding the metro.

Going home from work.

Going home from work, riding the metro, getting his food, going to go home and eat, maybe.

The best meal in the world.

He's on a crowded bus or metro, and some random lady claims that he's masturbating on her, right?

Yeah, I don't know if the police confronted him with that fact.

With that kind of level of detail.

Just exposed himself.

That was kind of the thing.

Yeah, I mean, but he-

But it's still, like, the sexual, like, nature of the crime that he's been accused of.

He's been accused of very right away.

Or being accused of any crime.

I mean, you know, he picked up Chipotle and was going home.

And all of a sudden, there's two police officers putting him in handcuffs.

But as a young man, I feel like, you know, like, the history of criminal, like, we call it the criminal system on this podcast.

But there's a lot of, like, young, especially black men in this country, right, who have this long history of being,

their sexuality being used against them very violently or very aggressively in the criminal system.

And it's very difficult, right, because there's a lot of, like, antiquated stereotypes.

And, like, so you are this sexual deviant that we need to protect society from.

So, I mean, I can only imagine being 21 or 22 years old and being how scared you must be when the police are not-

You're in this-

Now you go into your car.

You're nowhere near the scene of the crime.

And all of a sudden, you've been confronted with this allegation that you did this sexually deviant act.

You know, no witnesses, no videos, no nothings.

And now you're going to go to jail.

Yeah.

Right?

And he did go to jail.

Right?

And it's really scary.

Did the police pull-

They pulled-

Did they try to get video or anything like that?

Well, allegedly, they, at some point, requested it.

So, between the-

Yeah, I mean, between the time of the incident and filing, it was allegedly deleted.

Oh, great.

And how much time had passed between the incident and the filing?

It was 15 days.

Wow.

That quickly, huh?

So, the only video footage that we had was video footage from the platform.

And the platform was so crowded that I couldn't even see the client in the video.

The client couldn't find himself in that video.

I mean, it showed nothing.

But what we wanted, right, was the video from inside the train car.

Of course.

It conveniently didn't exist anymore.

And there was no explanation for why it was not saved or why it was-

Nope.

And now this guy's facing sex registration for the rest of his life because of, you know,

just somebody says something.

That's all it takes.

That's exactly it.

And the other-

The only real-

Yeah, he's going to lose his job.

Besides the entire incident, I guess, in the police report, the police note that-

Well, the cop who wrote the report noted that his partner-

had said that my client's zipper was down when they arrested him.

Huh.

So, that was obviously a bad fact.

But there were no photos of it.

That's all-

Yeah, not a verifiable fact.

Yeah, no photos of it, no video.

Uh, there was no indication that they asked him why his zipper was down.

I mean-

It's also a really odd smoking gun to catch, you know.

It's just, it does seem a little fishy to me.

It's like, he exposed himself previously and guess what?

His fly was down.

Like, I mean, like, really?

Like, your fly was down and that's the, you know, you caught him red-handed or his pants

down?

Right.

I mean, that would be a super convenient fact for them if that were true, right?

Seems very-

It's the only real piece of quote-unquote corroborating evidence.

I mean-

Absolutely.

They didn't have anything else.

Are you trying to settle the case?

What are you trying to do with this case?

Yeah, we were trying to settle it for dismissal.

And we got the non-

We got an offer that wouldn't have required him to register as a sex offender.

And he was just like, I have been very clear from the very beginning.

I am not going to plead guilty of something I didn't do.

Um, you know, I have faith that the jury will find me not guilty because I'm not.

All right, Sam.

Let's give our viewers what they've been waiting for.

We want to hear about this jury trial.

You've had the 402s.

You have your jury.

Um, what was your opening statement like?

What was your plan?

Like-

So, our entire theory and theme was that the complaining witness genuinely believes that

she thinks-

Right?

She believes that she saw what she thinks she saw.

Okay.

She's not up there lying to you, right?

Like, but she made a mistake.

So then-

All right, so then what was your opening statement then?

Just-

Essentially, that we all make mistakes, you know?

And that's exactly what happened here, right?

She made a mistake.

Of the idea, like, of what she saw.

Right, right, right.

Got it, got it.

And then I essentially just laid out the facts as my-

From my client's perspective, which was that totally normal day, gets on the metro, gets

off the metro, and all of a sudden he's being accosted by these cops.

And then I kind of laid out, you know, to the jury what they were going to hear, but mostly

what they weren't going to hear, right?

They weren't going to hear from any other witnesses from the metro at Union Station at

rush hour, right?

They weren't going to hear from anyone other than this one woman who's claiming that this

happened.

And it's not like there's 10 911 calls.

There's not, you know, it's not like, oh my gosh, creep masturbating on the train.

We just have this.

Right.

You have this one woman, you don't have any video, you don't have any body worn, you don't

have any, you know, fucking photos of this zipper, alleged zipper being down, like, you

know, stuff like that.

And as you're talking to the jurors, are they, like, nodding?

Are they just disinterested?

Are they, like, what are we doing here?

No, they, well, the prosecutor opens first, right?

And so, not to, I mean, obviously I'm biased, but her opening was a little bit boring.

So I think, you know, for them, me getting up there and kind of telling the story from

my client's perspective, and they were interested.

I mean, they were sitting up attentively.

How are they, how is that boring to talk about a masturbating guy on the train?

On the train, right?

Yeah.

It seems like it's the worst prosecutor ever.

You can't make that interesting?

Yeah.

You know?

Yeah.

Yeah, I mean, I think she didn't have that many facts to work with.

So then, all right, so you got opening statements, and who was the first witness then?

Their first witness was the complaining witness.

Okay, and how did she testify?

So, complaining witness gets on the stand, and, right, there's not one black person in

the entire jury.

You know, I'm not black.

My judge isn't black.

The bailiff's not black.

There's no black people in the courtroom except for my client.

And then there's two people in the audience.

One of them is my client's dad, and the other one is this other young black man.

Complaining witness gets on the stand, and the prosecutor asks her, you know, a couple

foundational questions, and then asks her, is there anyone in the audience that you recognize

from the day of the incident?

And the complaining witness points to a young black man in the last row of the audience.

Oh, my God.

Like, as the person who did the act, right?

Well, technically, the question was, do you recognize anyone in the courtroom from the day

of the incident?

But...

Right.

I mean...

So, what was the response to that answer?

You know, that was just such an unexpected answer for me.

Like, I just remember thinking everything was happening really slowly.

Like, I just feel like everyone was just quiet and kind of in shock.

Like, I'm watching the jury look back and forth.

I'm watching this guy in the audience, like, kind of turn around.

Like, wait, what?

Are you pointing at me?

Did you just star your notebook really aggressively?

Hey, I star good facts as well.

Although...

Yeah.

I mean, I could hear myself start to audibly laugh.

Like, I literally had to cut my mouth at that point.

I was like, wait, this is how this trial is starting?

And Sam, I feel like I have to, like, take a second to comment on your shock because,

of course, you're shocked because it's obvious in a courtroom where the accused is sitting,

right?

Right.

Right next to me.

Right.

There's a prosecutor who's maybe sitting next to a detective.

There's a defense attorney.

The DA knows, I'm sorry, the witness knows who the prosecutor is because the prosecutor

subpoenaed them there.

The prosecutor knows who, I'm sorry, the witness knows who the IO is or the investigating officer

is because they brought them to court.

So the only person that stands out as the person they're supposed to, quote, unquote,

potentially recognize from the day of the incident is obvious, right?

And he's sitting next to the defense attorney who's sitting between the defense attorney

and the bailiff, the only police officer in the courtroom.

Right.

And there's a judge wearing a robe.

There's a court reporter sitting at the court reporter desk.

Typing on the machine.

So there's literally that question, which, you know, is this dramatic courtroom moment, is

basically the biggest, you know, softball ever, right?

Do you recognize anybody from that day?

You know, as a witness, you're here to talk about this thing that happened to you.

Let's see.

Right.

So, I mean, this is, so, of course, you're, I mean, this is huge, right?

It was big.

This doesn't happen in trials usually.

How did the prosecutor react to that answer?

The next thing the witness said was, you know, she pointed to this guy and then she goes,

but I think he had more facial hair that day, right?

So it's not, it's not only that she recognizes him, but it's that, you know, she remembers,

you know, that he had some facial hair and now he does.

I mean, it was just ridiculous.

So the prosecutor just kind of stands there in silence and then, and then asks her if

there's anyone else she recognizes and she kind of looks around the courtroom and she's

looking around for like a little bit too long and there was like a second where I was like,

oh, fuck, she's not going to identify my client.

Like that, I mean, there was.

You're ready to go home.

You're like, not guilty.

Yeah, right?

Like there was like, there was like a second where I was like, why is it taking her so long?

Like, and so eventually she points to my client and then she also says,

but I think he had more facial hair that day, right?

I mean, just clearly like, it's totally unreliable.

So that's how the trial started.

And she, how did she describe the train incident with, with the prosecutors direct,

how she described the incident?

Right.

So the prosecutor only has the police report.

So she's trying desperately, desperately trying to get the witness to testify consistently

with the police report.

And.

Like how so?

So, right.

So she wants to get in the fact that the complaining witness felt something touch her in the butt

and that she turned around and saw my client and actually took some steps forward to get

away from him that he followed her.

Right.

That's like this, you know, consciousness of guilt thing that she's trying to do.

So.

And she also wants, you know, the witness to say that she was sure that it was him.

Right.

She had this opportunity to observe him and whatever.

So they're trying to get her to say that she had time to see my client.

OK.

But instead she's saying that she gets on the train and where's my, she asked,

where's my client standing?

She goes diagonal in front of me.

Right.

Which makes no sense with the facts.

OK.

And she's like, OK, so then where, all right, so then whatever, the door's closed and then

where, then where is he standing then?

She goes, oh, no, I was looking at my phone.

And I mean, the prosecutor must have asked her that exact same questions like seven times.

And then eventually the judge goes, OK, we're breaking for lunch now.

Wait.

So did you object to like asking?

And so the judge just let her try to get it in multiple ways.

Oh, no, it was sustained.

Oh.

And then we sidebarred and she was instructed to stop asking it.

And then she did it again.

And then the judge was like, all right, we're taking a break then.

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Thank you.

So, I mean, so the state of the evidence at this point is that the guy gets on the train,

he's diagonal to her, and she's looking at her phone.

Nothing about pulling out a dick and masturbating or having an erect pain or anything, anything

inappropriate, right?

No.

And then we broke for lunch.

So the jury goes to lunch having, the complaining witness having just identified someone else in

the audience.

Did you argue that he was actually the one masturbating on the train?

I did not, actually.

Okay.

Just curious.

I didn't really want anyone to be masturbating on the train.

The culprit, ladies and gentlemen, is right here.

Yeah.

Okay.

Sorry.

Yeah, you go, you break the lunch.

Right.

So there's this lunch break.

And I'm like all excited, right?

Because the complaining witness was just, you know, identified some random guy.

We get back and I'm thinking, oh, the prosecutors definitely talked to the witness between, you

know, the lunch break.

And the witness gets on the stand and she just still can't answer the questions.

I mean, it's really unbearable.

So eventually, I don't even remember how, eventually she gets the witness to say that

my client was standing behind her.

And she feels, the complaining witness says she feels something touch her in her, well,

first she says hip area.

Then she corrects herself and says butt.

And now the prosecutor wants her to say that she saw it was my client.

And instead of saying that, the complaining witness says, oh, no, I didn't even think it

was him the first time because allegedly there's two times, right?

I didn't even think it was him.

I didn't move away from him.

You know, the train was crowded.

I just kind of figured that someone bumped into me.

I didn't think I, her words were, I didn't think anything of it.

Because in the police report, right, remember, he allegedly poked her with his penis one time

and then was masturbating onto her the second time.

That's, what's she say about the second time in court?

Yeah.

So there's a, there's a bunch of like, you know, getting her there, but eventually she

says that, you know, she feels a hard bulge on her butt and that she saw that it was his

erect penis and that he was attempting to cover up his erect penis by holding the McDonald's

bag in front of it.

Now, the McDonald's bag part is weird because, you know, the police report has her saying that

it was a Chipotle bag, you know, the cops arrested him as he's eating his Chipotle.

So the prosecutor's like, well, let's pull a McDonald's bag thing is weird.

Let me just try to, you know, get her to say the right thing.

So she says it's a McDonald's bag and the prosecutor asks her, are you sure?

And she goes, yes, I'm a hundred percent sure.

I remember the gold McDonald's M on it and Sam star on the notepad.

Oh yeah.

Big, big, big highlight.

I think I took my highlighter out at that point.

I was like, McDonald's bag.

She's sure.

Yeah.

One hundred percent.

I mean, because to me, right, that's a completely analogous to what's happening here with the

whole penis situation.

Well, of course.

And if this is the bag that's covering the alleged exposed penis, and she's a hundred

percent, she's not just sure, right?

She remembers the details of that bag, but it wasn't a McDonald's bag.

I love it.

Just like it wasn't his penis.

I love it.

Any other key facts with the, with her direct?

The, I think the last key fact was that she, um, you know, the prosecutor's trying to get

her to say that she like turned all the way around and saw his penis and whatever, whatever.

And the witness just goes, no, no, it happened so fast.

As I turned around to look, the doors opened.

So when I get up there for my cross, you know, I ask these questions to, you know, make it

clear that the train was crowded, that maybe it wasn't crowded when she got on, but at

every, you know, at every stop, more people got on.

She was standing by the door.

And as, because you're standing by the door, people are getting up before the doors open

to leave and to come on.

And, um, you know, by the time she gets to Union Station, it's packed because a bunch

of people got on at 7th and Fig and, uh, you know, everything happened really fast.

Right.

That was the, that was the main thing that she had no ability to observe.

And the, and the trains and constant fluctuation of movement too, right?

People are getting on there.

It makes everybody else shift and things like that.

And she's standing right by the door.

So she's like, you know, in a very busy portion of the train, it's not like she's sitting.

What else did you cross her on?

Right.

So there was the, uh, you know, you felt something touch your butt the second time, you, you turned

around and as you turned around the doors opened and as you turned around, people were exiting

the train and as you turned around, right.

Or as soon as the doors open, you know, my client walked out of the train, which was her

testimony.

Right.

So all of this is happening simultaneously.

I mean, you, you can't turn, you can't have enough time to turn around, see someone's

penis as they're exiting the train and as the doors are opening.

But she had also testified on direct that, you know, she looked around to see if anyone

else saw.

So I, right.

I hammered her on that.

Oh yeah.

And you looked around to see if anyone else saw and no one was reacting, right?

No one asked you if you needed help.

No one said, Oh my God, there's a penis.

I mean, there was nothing.

And she was like, yeah, there was nothing.

Like no one did anything.

Um, usually I know you had mentioned earlier about the officer that she went to testifying.

So if the officer couldn't get her prior statements in, then what, what did he really talk about?

Chipotle bag?

Yeah.

He, he talked about how he arrested my client as he was eating Chipotle.

And with the, with his fly down.

Well, yeah.

And I, what are we talking?

A burrito?

A bowl?

Well.

Tacos?

I think it was a burrito.

It was a burrito bowl.

A burrito bowl.

Yeah.

His fly is down.

His pants are undone.

But he just say, he's eating Chipotle.

Whose pants aren't undone after a burrito from Chipotle, right?

Oh, that would have been in my, yeah.

I mean, was his hands down his pants, Albandi style, you know, like, we've all been there.

Yeah, we have.

I was there this afternoon.

I mean, it's like, that's just Metro, LA Metro.

Yeah.

One day, Tuesday.

It's good tacos, man.

Was it a Tuesday?

Was it a Tuesday?

It was a Monday.

Okay.

You know?

Yeah.

So the cop, I mean, the cop hurt her, hurt her case more than he helped it by far, right?

The prosecution case.

Yeah.

So the cop's the next witness then?

No, the next witness is the MTA worker.

The MTA worker?

Who translated, they found her.

They did find her.

They did find her.

Oh.

I did not see that coming.

Oh, yeah.

They found her out of the blue.

I have no idea how.

It's a shame.

They can always find them.

We never can.

You have no idea how?

Let me tell you.

The amount of resources that they have that we don't even know about are infinite.

They have big brother going out and finding these witnesses.

Yeah, they have people getting over time to camp outside people's houses to find out where

they're at and like secret databases of addresses, phone numbers, known associates that they

can try to hit up to try to find these people.

Maybe you just have like a letter.

An investigator sends a letter.

Yeah.

Hey, can you just go up this day?

Hey, we need you in this criminal case.

Hey.

Fuck no.

The witness is like, I want nothing to do with this shit.

Right.

And they're sending their investigators out there in Ubers being like, you're going to

get arrested if you don't come to court.

This is a subpoena.

They hide in front of their front of their house, you know?

Right.

Oh, yeah.

So what did the MTA workers say?

Absolutely nothing.

She literally got up there and said that the complaining witness looked freaked out and that

she told her that she, she being the complaining witness, the complaining witness told the MTA

worker that she had seen a guy with his penis out.

Oh, so she got that out.

That statement came out.

That was consistent with what she testified to, though.

Oh, got it, got it.

It was a consistent statement.

So, so basically the complaining witness never, ever said to anyone any of this shit about

the masturbating and, you know, the two incidents.

I mean, it was all made up.

Oh, so she just.

Oh, okay.

So just the complaining witness was upset and that she said she saw a guy with his penis

out.

And that's it.

And that the cop had come up to the MTA worker while she was standing with a group of

people asking if anyone spoke Spanish.

Okay.

Right.

Because he doesn't speak Spanish.

So he needed someone who did.

And did you cross on anything or just let that be?

I got her to say that she saw my client with a Chipotle bag and that she didn't see his

zipper down.

Oh, that's a good fact, though.

Didn't see the zipper down.

Okay.

So then, then the police officer testifies.

One of the responding police officers testifies.

Right.

So there were two officers that were, that were at the scene.

And in the police report, right, the, the officer who authored the police report wrote

that, you know, it was his partner that actually saw my client with the zipper down.

So essentially what he testifies to is that the complaining witness flagged him down.

She looked upset and then she tells him what happens.

And right now the prosecutor has to get him to say that he's fluent in Spanish because the

complaining witness had just testified that she does not speak one single word of English.

I mean, the prosecutor asked her 12 times if she spoke any English and she just said, no,

no, no, no, no, no.

I don't, I don't speak any English.

And he, and he can't rely on the translation of the other person, right?

The, the MTA worker.

Well, he's saying at this point that, that the complaining witness told him in English.

I mean, he's not even saying that the MTA worker was involved yet.

Oh, okay.

So his version of the story, right, is that complaining witness tells him what happened

in English.

And then he's like, oh, maybe Spanish would be better after you've already told me.

Goes and gets his MTA worker, then comes and then translates it again into Spanish.

Oh, okay, okay.

Says the exact same thing, essentially.

In his version.

Yes.

And so he's up there and, you know, the prosecutor's desperately trying to get him to say he speaks

any Spanish at all.

And he's just going deeper and deeper and deeper into a story about not speaking Spanish.

I mean, his mother wouldn't let them speak Spanish in the house.

He never took any lessons.

But he, is he like a, like, like Hispanic or a Central American descent?

Like what?

Yeah.

Is he Latinx?

He's Hispanic, but he grew up in a household where he was not allowed to speak.

And so he was like clinging to this narrative about how he couldn't speak Spanish.

Oh, yeah, like he's like totally not understanding what the issue is, right?

I mean, he's like, why does it matter?

I don't speak Spanish.

I mean, what do you want me to say, DA?

Which is funny because I feel like in his circle, in this law enforcement circle, it's

like the Spanish is not particularly maybe like a, like a, he's like, oh, I don't,

I don't speak Spanish, right?

And like, the DA's like, we need you to speak Spanish to win this trial.

You have to speak Spanish.

She just says she doesn't speak English.

Yeah, right?

And he's like, oh, no, no.

I came from a refined family.

We spoke English only.

Right?

Like we were one of the good type of Latinos, you know?

So he's being like completely honest about something that helps you, but then being completely

dishonest about this conversation.

Exactly.

I mean, he straight up got up there and lied, right?

Like she could not, what, right?

Then this is what I eventually argued to the jury.

What motive does she have to lie about speaking no English?

Right.

Right.

But he has to say she told him in English because he doesn't speak Spanish.

I mean, stars, like how many stars are on this page?

Lots of, I mean, like double stars.

I think there's stars on both sides of the page at this point.

It was just, it was ridiculous.

So then he says he saw my client's zipper down, right?

And I'm like, the fucking police report says his partner saw it.

And before he testified, I was like, oh, this will be great.

He won't be able to testify to this because he didn't see it.

And the other officer's not here.

Of course, he gets up on the fucking stand.

So when I get up there for my cross-examination, right?

We always married them to the police report.

Right.

Right?

Like, you know, you wrote this police report.

You were trained on how to write police reports.

And your police report is true, complete, and accurate.

And blah, blah, blah.

You know, and he's like, yes, of course my report's accurate and true and complete.

And blah, blah, blah.

I know, of course I know how to write reports.

But in your report, you actually say it was only your partner that saw that, right?

Well, you know, my partner alerted me to it.

And then, you know, I saw it.

And blah, blah, blah.

Okay, whatever.

Now, there was also a statement that he gave to the prosecutor.

There was some telephonic interview.

And in that interview...

Wait, what telephonic interview?

I guess the prosecutor...

Someone from the prosecutor's office had contacted the police officer.

Okay.

And took an additional statement.

Took an additional statement.

Did you get this in carbon copy format?

I got this on some janky-ass Word document that, like...

I mean, it was...

On such and such date, I interviewed the cop over the phone.

Not even I.

Just not...

Cop was interviewed by...

Someone.

So, in this, you know, in this telephonic interview, he says that the complaining witness...

All she said about the entire incident was that someone grabbed her ass.

Right?

So, this is a completely different story now.

And I'm getting ready, you know, to impeach him with it.

And he's, like, refusing to admit that he talked to the prosecutor's office.

It was very odd.

And I was like, okay, well, would it refresh your recollection to look at the statement you gave?

The summary of the statement you gave?

He goes, yeah.

So, I show him the statement.

He reads through it.

Okay, is your recollection refreshed?

Yes.

Okay, so, didn't you say this?

I don't remember.

I mean, at that point, I was like, all right, well, everyone just thinks you're an asshole now.

So, I guess we're done.

He said his recollection was refreshed, but he does not remember.

Right, yeah.

That's exactly what happened.

So, my client testifies next.

And what were the goals for the client?

The goals for the client were, you know, kind of to humanize him, to get the jury, you know, to give the jury another story to kind of believe in.

I mean, and his testimony, honestly, was quick, too, because from his version, he got on the train, he got off the train, or he got, you know, he picked a vegetable egg, got on the train, and then all of a sudden he's being accosted.

I mean, he didn't see the complaining witness.

He had no idea what she looked like until the day she testified before.

So, how did he testify?

Yeah, so, he was super nervous.

I mean, he was totally freaked out, and I had to, like, drag answers out of him.

Like, it was, it wasn't great.

And then, that's sort of interesting, because it sounds like, so far, really nobody testified well.

So, do you think that, looking at all the witnesses, did he sort of fit with the way everyone else came off?

Like, I mean, it sounds like almost everyone was completely uncomfortable in this witness scenario.

Yeah, totally.

I mean, everyone looked like a deer in headlights up there.

I mean, even the cop was, like, kind of all over the place.

Like, I'm not sure what I'm supposed to be saying right now.

You know, which is, which is what I said in my closing argument.

You know, you, right, because he did look, you know, nervous up there,

and he didn't know the answers to some of the questions the prosecutor asked him.

And you also saw all the other witnesses who looked freaked out and said they were freaked out.

I mean, you know, he's not just up there testifying as some witness who gets to go home after this and be done with it.

He's up there testifying as someone that's being accused of a crime he didn't commit.

You know, he's up there being, you know, looking at a potential lifelong registration,

sex offender registration for a crime he didn't commit.

That's what he's up there testifying for.

They're up here telling a story.

You know, they get to go home and be done with it no matter what.

And how did the prosecutor attack your client?

The prosecutor got up there and got so frustrated that she couldn't get him to give her answers that he didn't know the answer to, right?

Because she's looking for anything to impeach him on.

She just started screaming at him.

I mean, it was really, and he's like, you know, this scared little kid.

Like, at one point, he looks at the judge and she goes, can I answer?

I mean, it was like, you shouldn't be behaving like this.

I mean, he sounds very sincere.

Yeah.

Can you give an example of what she asked him or what she was trying to get at and he couldn't quite answer?

Yeah.

So the Silver Line bus, you know, I don't know if any of you or anyone takes it,

but it runs like every eight or ten minutes or so.

Yeah.

And she's up there, you know, trying to grill him on what the bus schedule is.

You know, what time did you have to be there to catch your bus?

Oh, you don't know what time the bus runs?

You don't know what time it leaves exactly?

And I purposefully, right, like had a bunch of people on my jury that took the metro all the time

and took the bus all the time.

And I'm sure they were all up there thinking, okay, it runs every eight minutes.

Like, what do you want him to say?

Like, there's no answer to this question.

And she's up there freaking out about it.

Like, it's some, you know, big thing that he doesn't know what time the bus leaves.

That's like someone who, like, learned about trains, like, in high school.

Like, in some, like, you know, the train to Paris is at 1330.

Like, in French class, right?

Yeah, right?

Like, oh, the train to Munich is at 445.

You're like, what?

Is that transcontinental travel, dude?

So, that was just one of the many, many odd things that she kind of tried to hang her hat on.

Yeah.

All right.

So, then what about your closing argument?

So, I got up to my closing argument and I said to the jury, you know, I told you at the beginning of this trial

that so-and-so made a mistake on the day of whatever.

And then you watched her make one, right?

You watched her in court identify someone in the audience who she's never seen before in her entire life.

You watched that happen.

I mean, you know, you know that she made a mistake on the very first day of trial.

And that's what the evidence in this trial showed, that she made a mistake on that day.

So, that's what I led with.

And then the one thing I think, I don't know if I had much of a choice, but I got up there and I called the cop a liar, right?

I mean.

Right.

Because my client had testified that a zipper wasn't down and the cop said a zipper was down.

So, I got up there and I just argued that they watched the cop lie about talking to the complaining witness, right?

I mean, you saw him lie and the law says that if you believe a witness lied about something, then you should consider not believing anything they say.

And that's what the law says.

That's what the judge instructed you the law is and you watched him lie to you.

I feel like you've kind of hesitated right now in saying that the cop lied.

You said you wish you would have said the cop lied?

No.

I'm not sure that I, if I had had a choice in it, I don't think I would have said that.

Oh, why?

I don't, jurors don't like it.

Really?

How do you know that?

From talking to them afterwards.

They don't like it when you call a cop a liar.

They don't, they don't, they do not want to believe that the cop lied.

Even though, what about the language discrepancy?

They explained it away.

I mean, let's just jump to it.

So the jurors, you talked to the jurors?

So I talked to the foreman and another juror who would have been, apparently would have been the foreman if this guy wasn't.

We talked for like 40 minutes in the lunchroom in the bottom of the court building.

Okay.

What did they say?

They said that they thought, or not, not all of them, but some of them thought that the defense had orchestrated putting someone in the audience that looked like my client to have her identify someone else.

And I'm sorry, who, who, was this person, your client's family member?

Or was this literally like just a random person there for their own case?

This is my client's brother.

Okay.

So he's there with his dad watching the trial.

Supporting his brother.

To support his brother.

Right.

But no one knew that.

And he wasn't there any other days.

I mean, there was no way for them to go.

Yeah, if I was accused of committing a crime, I wouldn't come back either.

Of course, he wasn't there any other days, right?

The one day you shoved in court.

Someone's like, he did it.

That's the, that's the man.

Yeah, of course he didn't come back.

So they, some people thought that that was defense games.

Yeah.

And, and I was just like, you're giving me way too much credit here.

I mean, I don't know how I could have possibly orchestrated if I was smart enough to figure out how to do that.

Like, I don't.

Wow.

Some people thought that.

And what did they tell you about not believing, or the police officer issue, when you called the police officer a liar?

They said that some people didn't like that I called him a liar, but mostly it was unnecessary, is what they said.

That after he refused to answer the questions about his statement to the prosecutor, they thought he was not credible.

But even then, even then, they sat there and tried to explain to me why he tried to testify honestly.

I mean, they really want, they really want to believe that the cops are okay.

Because the car, their core values.

Here's, here's the thing, like, okay, so a police officer gets up there, testifies that he spoke in English to this witness,

who previously testified, I don't speak Spanish, I don't speak any English.

This cop somehow says that the witness is, the fly is down, even though in the police report, it's the other police officer who says they saw it, not this police officer.

Then this police officer denies making a statement to the prosecution's written office about, and then says, I didn't make it,

even though you have it in writing that this police officer made this statement.

And the jurors still cannot believe the fact that a police officer will lie.

But yet, when a witness identifies the wrong person in a courtroom, they automatically assume the defense planted it.

Yep, that's exactly what happened.

Some fucking bullshit.

But.

This is so, yeah.

It's just like, like, you just automatically, did you tell them, hey, this is my second jury trial, I'm not quite there yet, I'm planting evidence.

You know, I'm not as good as the police yet, okay, but thank you.

You know, like, I'm no police officer, okay?

Like, it's just so crazy, right, because we were talking about this, like, because, you know, it depends on, we talked about this a little bit off the record before we started recording this episode about where we practice.

And I feel like in a certain place where me and David once practiced together, right, this jury community or the jury pool is, like, ready to believe.

You don't even have to put the idea in their head.

They've experienced police misconduct, police brutality, whatever it takes, and they're just like, these cops are, you know, are capable of up to doing something that's no good, right?

Whereas other jury pools, we have to just, we have to baby, we have to massage this concept very so slightly, and you have to, like, you know, pretend, like, oh, this person, I know you want to believe this officer, but, you know, he made a mistake.

You know what, you call it whatever it is beside that, even you, you're like, how do I say that this cop is lying?

I didn't really want to do that, but I have to.

There's nothing else to call it in this situation, and you have to almost apologize for calling a cop a liar, even when it's, he's the one lying, right?

It's a very battered women type of relationship we have with certain jurors.

We have to kind of just be.

I mean, I didn't voir deer at all on cop credibility.

I had no idea.

You didn't know that that was coming.

Yeah.

I had no, I, yeah, that was going to be an issue in this case.

I mean, if you knew, then you can at least kind of warm up, lube up the jurors a little bit before you slam it with a rod of reality, you know?

Great terminology, you're seeing this right now.

There are just too many.

There are too many funds.

So how long was the jury out after you finished closing?

So the jury asked for readback of all of the complaining witness's testimony and all of the direct testimony of the officer.

The judge asked them if they could narrow it down a little bit.

We did read back, or they narrowed it down to all of the inconsistencies that I pointed out.

So they want to read back of all of the cop's testimony about the zipper.

Did he see it?

Did his partner see it?

When did he see it?

And they wanted read back of all of the complaining witness's testimony about what brand of food bag it was.

Man, the McDonald's Chipotle bag thing, like, that was big for me.

And then all of her testimony essentially regarding her ability to observe.

They didn't ask for any of my witnesses or my client's testimony.

We did the officer's.

Because you orchestrated all that, you know?

That was all fabrication.

It was a grand theater, kabuki theater you put on there, along with the brother in the audience.

Yeah, so they did the officer's read back in the morning, CW's read back in the afternoon, and when they read back the complaining witness's testimony, I mean, just hearing it by itself, right, without all the objections in between and all that, I mean, it was amazing for us.

Like, it was really just so fucking clear that she had no idea what she saw.

I mean, it was, I just remember after that happened texting, you know, one of my colleagues being like, if they come back soon after hearing that, like, if that's what they were waiting on, it has to be a not guilty.

But, right, like, they can't, if they were waiting to hear that, to decide, like, that was amazing for us.

Yeah.

And so, I just happened to still be sitting in the courtroom, you know, waiting for something, and I heard the three buzzes come in, and I was just like, oh, fuck.

And I just, like, was texting and calling my client.

I was like, get your ass up here right now.

And he came up, and he, like, you know, he handed me his car keys and gave me his dad's phone number, told me where his car was parked in case he got remanded.

So, that was terrible.

And, of course, the judge happened to be back in chambers with two other lawyers going over some fucking video that, you know, right, I was like, you need to get back here right now.

Like, what's happening?

And then the jury came back, and it was, and so we're sitting there, right, and they have to pass the fucking jury verdict, you know, over to the clerk.

And our clerk has a broken ankle, so she's kind of hobbling around.

Like, it's like everything's taking forever, and I'm just sitting there, like, dying.

Tick.

It was awful.

And then we heard that first not guilty on the simple battery, and I just, like, grabbed my client, and then I was like, okay, I should stop.

What if some, God forbid, they, like, think, you know.

Yeah.

And so then the second one came in not guilty, and the third one came in not guilty, and then the fourth one, I was just like, thank fucking God.

I just, like, immediately gave my client back his car key.

I was like, don't ever give this to me again.

Ugh.

So.

Your client obviously was elated, ecstatic, excited.

Ecstatic.

I mean, just so relieved.

Like, he went back to work the next day.

Like, he got to, like, go back to his life.

Right?

This had just been, for months on end, I mean, this had just been such, you know, a terrible, terrible, heavy experience that was preventing him from doing anything.

So, you know, I feel like we started off this podcast being like, oh, we have, like, a brand new lawyer, and this and that, but I feel like you did a fucking awesome job on this case.

You know, and you just, it's just, you're just another dope-ass public defender that we have working in our office, really.

Thanks.

You know, good job.

On that note, why did you become a public defender?

I mean, I'm, you know, like, a white blonde girl that grew up in D.C.

Like, I definitely didn't grow up with the hardships that our clients face.

And so, when I was in college, I kind of fell into a law clerkship, or not a law clerkship, I guess, an internship, at the Public Defender's Office in Charleston, South Carolina.

And their office is probably the size of this apartment.

Wait, wait, are you talking about our podcast recording studio?

Yeah.

You mean the premiere?

The premiere.

Okay.

The Charleston County Public Defender's Office is probably the size of this recording studio.

Oh, okay.

Professionally.

Oh, okay, yeah.

So, you know.

I mean, it's tiny, and the population there is, like, over half a million.

So, as a college student, I was literally going to the jail to, like, interview clients charged with murder.

And I just, I don't know, I realized how privileged I am, how unfair everything is, how fucked up our system was.

And I kind of decided at that point, I fucking owe it.

Well, thank you for being on another Not Guilty.

It's been a pleasure to have you.

I feel like you're going to be a future guest on our show.

Yes.

Fingers crossed.

All right.

Thanks for having me, guys.

And, you know, maybe next time you're in trial, just take a genuine interest in your trial just because I'm interested, you know, like, yeah.

I won't hold my breath.

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

Shout out to Daniel Mark, creator of A&G's original theme music, and our audio engineer, Chris Adams.

And guess what?

We have another Not Guilty story coming your way next week because we public defenders fight injustice every single day in the American criminal system.

We'll be right back.