Glove Gaslight: When the Witness Doubles Down – Shutting Down a Lineup of Lies

Someone else, another staff member, was also in this kitchen out of camera view and she testifies that she sees client do this theatrical 360 after the glove drop and then with both arms extend his phone beneath the hem of her dress and shoot this video or photo. And his phone screen was dark and we tested it. You cannot take a video.

On an iPhone.

And have the screen be black.

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

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

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

In an unjust criminal system.

With a deck stacked against us.

All right, all right. Welcome to another episode of Another Not Guilty. My name is Dallas Guttman. I am a public defender in Cincinnati, Ohio. And Rachel, I'm excited about this one today. This is going to be a good one.

It's a hometown win.

My name is Rachel McKay. I'm a public defender in Cincinnati with Dallas. And today we are joined by two of the finest defense attorneys in the nation, Max and Molly, with a not-guilty straight out of Cincinnati, Ohio. Max and Molly, do you guys want to introduce yourselves?

Yes, you flatter me, Miss McKay. I'm Max Lomburg. I am a public defender, as mentioned, in Cincinnati. I've been doing this for about a year and a half now. I was a journalist before I started working in the law.

How long were you a journalist for, Max?

About five years.

What kind of journalism did you do?

I was a breaking news reporter for a couple of years. So, crimes and courts coverage, weather, a lot of weather coverage, which was very dull. And then I moved to Cincinnati. I was an education reporter, college and primary schools.

Awesome. Dallas used to work in news, too. Molly, did you used to work in news? Am I the only one?

No.

Okay.

I did not. I did not work in news.

My name is Molly. I am also a public defender in Cincinnati. I, like Max, have been doing this for about two years. But prior to joining the public defender's office, I worked in private criminal defense for two years. And yeah, I'm very happy to be here.

Yeah, this is going to be a fun one. We're excited about this one. It's a good misty acquittal. Molly, were you in federal for a while?

Yeah. So, when I was in private practice, the majority of what we did was federal work. We did some, you know, state common pleas stuff. But I would say the vast majority was federal stuff.

And we've all been public defenders for around the same time.

Yeah. Give or take a year.

Give. Or take. Is it give or take?

Well, it's either.

Is it give a year or is it take a year?

Depends which person.

Yeah, we won't go too hard into that. Yeah.

We can't spend the whole episode on is it give or take.

We will. We'll find a way.

I think it's give. So, let's get into the episode. What was your client charged with?

The client was charged with voyeurism.

Tell us a little bit about what voyeurism means.

There are various subsections of the statute voyeurism. And he's charged with the misdemeanor of the first degree. No person shall record through or under another person's clothing.

And that section is not for sexual gratification. It's just that they recorded the person.

Right. There's no sexual gratification element.

Okay.

So, he was charged with essentially taking an upskirt photo or video.

There are various degrees for voyeurism. He was charged with the first degree version. So, that's up to six months in jail if convicted.

Okay. It's an M1 voyeurism. And does that carry any registration requirements?

Yes. Yes. It carries a 15-year registration requirement, which is why it's such a significant charge.

I mean, it was easily the most significant case I've had so far. That alone, that possible punishment is so severe.

There were times pre-trial when we were talking, you know, with the client about the possibility of pleading, asking to plead guilty to assault another first degree misdemeanor.

Even though it had nothing to do with this case, just to try to avoid, you know, the registration requirement.

Yeah. A 15-year registration requirement would ruin your life. And that on a misdemeanor is just a shocking sentence.

And that's not discretionary, right?

Right. It's mandatory.

What did the state say that your client did?

So, the state said the client was a milk delivery driver. So, he drove to various schools in the area and he would deliver milk to the coolers in the school kitchens.

The state said that on one of these deliveries at a local school, he was essentially biding time to get this, the prosecuting witness, the accuser, sort of in this vulnerable position so that he could create this ruse, walk behind her, drop his glove,

and then turn around and then turn around and while he was picking up the glove, attempt or actually get a photo or a video underneath her dress.

Shoot up with his camera on his phone, up her dress. That was the accusation.

So, your client's charged with first-degree voyeurism. He's facing six months in jail and potentially 15 years on the sex offender registry.

How do you first meet your client?

First met client in arraignment in the Justice Center. It's where we meet a lot of our clients.

He had been arrested the previous day. He was in the holding cell.

And I called out his name and he comes out and I remember like one of the first things he said to me was,

I don't know what they're talking about. I did not do this. They cannot prove I did this.

And he was very earnest, you know, talked about his job and told me a little bit about himself and just maintained his innocence from the get-go.

What did you think when you heard those facts?

Well, I felt two things, I think. One, I felt bad for him because he was locked up all night.

You know, he had very minimal record. If I remember right, it was the first time he'd ever been in jail.

He was concerned about his job, concerned about losing his job because he wasn't at work that day.

But two, I sort of felt eager, I suppose, to see the evidence and to, you know,

because he asserted that whatever surveillance they had, there was no possible way it would show him taking a picture.

What did he say happened?

He dropped his glove and he reached behind the woman and he picked it up.

Okay.

And he so happened to be holding his phone in his other hand.

The crime of the century.

Crime of the century.

We were all holding our phones. That's the stupidest thing.

Right, right. That was part of the trial. Like, phones are so pervasive, but we can get into that.

I think about how scary that would be as a client if you ever, every jurisdiction is different.

We have kind of like the bullpen in room A at arraignment.

Like, if you're just sitting on that bench with another 50 people and it's like clammy and you've been there all night

and then someone just yells your name and it's some rando and they're like, I'm your lawyer,

you have no idea who's pulling up.

And like, thank God it's Max Lomburg and Molly and it happens to go great.

But like, you have no idea who's pulling up when you're trying to tell someone that you're innocent of something.

Like, that's so scary to me.

Definitely.

I think about like the way I approach people in the bullpen because by that point, they've already been approached involuntarily by various other people,

the police and then jail staff and the deputies that shuttle them around throughout the jail.

And by the time they get to us, they must just be so skeptical of all these people who are just, you know, ushering them around against their will.

I always ask how they're doing.

It's such a stupid question.

Like, I think I try to change it to like, are you okay?

Because I used to be like, how are you?

And they'd be like, terrible.

Like, what are you talking about?

So now I'm like, I'm like, are you all right?

And they're like, no.

I'm like, I know.

I don't know.

I'm just like, you know, you don't want to make small talk, but what do you say?

Yeah.

I still ask how are you just to like, on a human level and usually they're like terrible, but sometimes people are like, good.

And I'm like, all right.

Some people are so polite.

Not you better than me on a Monday.

You've been in jail since Friday.

Or sometimes I'm like, how are you?

I know.

Dumb question.

Because I don't know.

Like, that's just, I guess, what people say to each other.

People, when I say, how are you?

Sometimes people will just look at me like, and I'm like, let's talk about something else.

We'll get past these pleasantries soon.

I'm in a cave.

Right.

In a fucking cage.

Okay.

So you've met your client and you've heard the allegations.

You've heard his side of the story.

You file for discovery and he tells you that there's going to be surveillance.

So is that something, something that you get in discovery?

Yes.

Okay.

Yeah.

So let's talk about the discovery that you get.

Yeah.

So we get surveillance.

He had never seen it before I got it, but he knew it existed because he had been interrogated

prior to being arrested.

So he knows there's just surveillance out there.

So getting it was, you know, after much anticipation, it was exciting to get, finally see the surveillance

and exciting for him to finally see like what could possibly have led to this.

Exciting is the wrong word, but eager.

I get eager for certain types of evidence.

I do.

I am excited.

There are certain links that you're like, it's like an episode just dropped.

Yeah.

And then you open it.

Sometimes you do open it and there's some good stuff in there.

Yeah.

Like today I was like, damn, the co-defendant did say that was his mess.

That's crazy.

There was good stuff in here too.

I mean, it shows client dropping a glove, reaching down and picking it up and then moving on throughout

his day.

And their surveillance showed he did not take it.

He did not, one, reach under her dress in any way.

He did not angle his phone upward in any way.

And his phone screen was dark.

It was black.

You know, his phone was not on when he reaches down to pick up and he places the new fresh

milk on the pallet and he takes the old crates, the empty ones, and puts it back on his dolly

and he goes back out the exit.

And he does that several times to complete the order.

And while he's doing this, other members of the school kitchen staff are kind of milling

about doing their own tasks, walking in and out.

And that includes the accuser.

And there's, it's, it's very like nondescript.

It's, it's, there's just not a lot going on in the video.

It just looks like another normal day at work.

He looks like just another normal guy, um, working, but with the, with the large caveat

that he's the only black man in this area.

He's well, he's the only black person.

I should say there's maybe another man who walks about, but they're mainly women and they're

all white.

And one thing that's notable when he first walks in, uh, he's, you know, got one hand

on the dolly and with his other hand, he kind of raises it to greet this other woman

who's standing nearby and she does not return the greeting.

You know, he, she just kind of ignores him.

So you see him walk in, he's doing his job.

And then you see him drop his glove.

And at that moment, when he goes to pick it up, he has his phone in his hand.

So you can see all of that.

The surveillance footage that we received was incredibly high quality.

It was super clear, but more importantly, you could move through the footage.

So like you could zoom in really closely.

Um, you could pause it.

And what we were able to see was we could zoom in on his hand with the glove and his hand

with the phone.

And so that's where we had a lot of our focus.

The accuser was in that sort of narrow hallway near a manager's desk, but there was also a

garbage can.

And so she was changing the trash bag in the garbage can and it was a smaller garbage can.

So she was kind of hunched over a little bit.

And she was wearing like a knee length dress and client was walking behind her as she's leaning

over, changing the garbage can, which is when the gloves, which were really large work gloves,

um, like thick cotton.

That's the glove.

Okay.

Max has it.

Is that the real glove?

Was this like a, your Johnny Cochran moment?

If the glove don't fit, you must acquit.

Although in this case it's, well, the glove is too big in this case and it fell off.

No, but we, we, we tried to make some little catchy phrases like, like along those lines.

We never came up with it.

So no, we did not just use that one.

I mean, that one's tried and true.

What were the top contenders?

I knew you'd ask that.

Yeah.

What were some that?

It got floated and shut down.

Do you remember the glove is on?

I can't remember.

I'm so sorry.

Cause I don't think we were ever serious about it.

They were all, they were all so bad to be totally immemorable.

Wait, is that the actual exhibit in your office there?

Yeah.

Yeah.

I know this is audio, but Max is holding a giant glove.

But yeah, so this glove is massive.

He's holding it in his hand and in his hand, the same hand, he also has his phone, but he also

has a pen and his paperwork, like his order forms or whatever.

And so as he's walking behind the woman, the glove falls out of his hand and he instantaneously

leans down to pick it up and then goes on his way, walks out the door.

So did she notice this happening?

Nope.

How did, how were police involved in this if she didn't notice?

To answer your question, no.

Accuser does not notice the first glove drop.

She's changing the trash.

He drops glove.

He turns around, picks it up, moves on.

She does not notice.

Someone else, another staff member was also in this kitchen out of camera view, but she

testifies that she sees this, this happening, this glove drop.

And she testifies that she sees in this sort of cartoonishly villain way, villainous way,

client, you know, do this theatrical 360 after the glove drop.

And then with both arms extend his phone beneath the hem of her dress and shoot this video or

photo up her dress.

And that's what she told police on body cam in her interview with police?

Or is that just in the report?

That's in the report.

She wrote an affidavit with police.

We didn't actually have body cam of any interviews with her and police.

So you have this incredible surveillance that you can kind of like zoom in.

I just learned that there's some surveillance out there that you can zoom in and you can move

around.

How'd you learn Dallas?

I learned mid trial, mid theft trial, better than after trial.

Just so everyone knows, some real tailors out there and obviously in some schools have

this incredible surveillance.

So check your, check your cameras, people.

With the surveillance, if you just watched it, not as a defense attorney, someone just showed

you this video, didn't say what it was of.

Would you think anything of it?

No.

It's completely unremarkable.

Right.

I mean, he was not close enough to her to make it look suspicious.

But if we, if I had to guess, I would say he was two feet away from her.

I mean, Max, what do you think?

Right.

I think he was probably too far away to even have, like hypothetically, let's say he did

take a photo, which the surveillance footage shows he didn't.

Again, his phone was dark.

Like, you could zoom in far enough to see that there was nothing on his phone.

Yeah.

It wasn't like up her skirt or like on her ass or anything.

Okay.

Right.

Not, not only could you zoom in, um, but you could slow it down.

You could slow the playback down really, really like a quarter of a second or something.

And when you, when we did that, we could see like his phone move frame by frame down toward

the ground as he, with his other hand, reached down to pick up gloves.

And there's this frame where you can, you just get this great shot of the phone screen

and it's dark.

Importantly, the way he was holding the phone, he was holding it with the phone because he

had an iPhone and he was holding it with the phone screen facing his palm.

So if he were to have tried to take a photo of her, it would have, first of all, been with

the front camera, not even the back camera.

And you could see in his hand that the screen was black and we tested it.

You cannot take a video on an iPhone and have the screen be black.

Like you can't start a video, turn the phone off, like with the side button and have it

still record and have it still record.

It stops the video.

A couple of things.

One, I think that this is, so this is where the, the race thing comes into play, right?

Because you guys are thinking there's this person who is, is different than everyone else.

And they do this innocent thing that we all do.

We have our phones in our hands at all times and we do things with our phones in our hands

and they are seeing it as some type of nefarious, like sex crime.

Yeah.

I think the allegation based on what appeared to me to be no evidence made me think it was

racially motivated.

But also the treatment of this man prior to that particular day contributed, I think, to

this, this strong suspicion of mine, you know, that it was racially motivated.

In the affidavits, these witnesses, all, there were four affidavits, only two witnesses testified,

but each of these, they're all women, each of these women wrote about how creepy a client

was, how he would offer to take out the trash.

I mean, God forbid someone offered to help.

Yeah, that's the gate, that's the gateway to, uh, to sex crimes.

Right.

Exactly.

You gotta be careful with people who offer to take out the trash.

That's for sure.

Um, and just, you know, little minute, normal behaviors made to sound criminal, you know,

and part of this ongoing conduct that led to this picture up the skirt.

Right.

During the entire trial, and this is something that the jurors noticed, during the entire

trial, both of the, um, two women from the school only referred to him as the milkman.

They didn't refer to him as his name or the defendant.

They just said the milkman.

Um, and I also think it's really important to note them being suspicious of, oh, he asked

if I wanted him to take out the trash or whatever.

He was one of the nicest people that I have ever met.

Any time during the trial that I would get up, you know, to talk or to go back in chambers

or whatever, he would pull out my chair.

Then when I got back to my seat, he would push, you know, push my chair in.

Like he was such a gentleman.

So those, you know, the, the referring to him at simply as the milkman definitely like

made it seem more racially motivated profiling.

Right.

It's kind of a dehumanizing way to refer to him.

Exactly.

I'm just, I'm just finding out that milkman still exists.

I thought that was like some 1950s like trope.

I didn't know that was real.

That's honestly news to me too.

It's news to me.

You're right.

Like to them, he's the help.

He's a black service worker in a white area.

And that's his whole identity to them.

And he's inherently suspect for that reason.

Yeah.

Cause this, the area where this occurred was, it is a very affluent neighborhood in Cincinnati

that, you know, doesn't have a lot of black people in the community.

I think Rachel, your, your point is spot on.

Did you get any photos or videos from his phone in discovery?

Nope.

And that was a big point in the trial because the state tried to portray him as evasive

because they asked, the police did in an interrogation to search his phone.

And he said, you know, sure, but it's, it's like a Wednesday.

I really need my phone.

Could we, could I perhaps come back in a couple of days, give it to you on a Friday and you

can search it over the weekend.

And they're like, sure.

But they, they don't never get to the weekend.

They arrest him before the weekend.

And then during the arrest, police sees his phone and on body camera actually have it,

you know, I mean, you can see this phone in the officer's hand as they're booking him into

jail.

And I mean, this, the whole trial is whether this man recorded a photo or video and the

officer's holding his phone and then he gives it away.

He just hands it to the jail staff and he never searches it.

And so that was like a huge point in the trial.

We, we played the body cam with the officer on the stand and say, that's the phone, right?

That's the phone that the client had when you arrested him.

And that's you handing it away and not searching it.

What, why not?

Why didn't you do that?

I mean, of course we didn't ask that, but that's what the jurors were asking.

Yeah.

Right.

Can we go over that timeline?

So there's the day of the allegation and then at what point is client arrested?

I think it was May 3rd, day of allegation.

May 8th, he's contacted by phone, by police.

And then roughly like two weeks later, they do the interrogation.

And the day after the interrogation is the arrest.

So May 3rd is allegation.

Arrest is, I believe, May 23rd, roughly.

Okay.

So there's May 3rd and then May 8th, he's contacted by phone, by police.

What's that conversation?

Brief.

You know, hello, sir, so-and-so, there's a serious allegation, it doesn't look very good.

Okay, well, that cannot be, says client.

I don't know what you're talking about, what you're accusing me of right now, I did not do.

Officer says back, well, you know, it may be a misunderstanding, but we want to talk to you about it.

So we want to get your side of the story, you know, the cop talk.

We really want to hear your side.

Yeah, we want to hear your side.

You happen to be in custody, under a fluorescent light.

We want you to incriminate yourself, please, yes.

We just really want to hear your perspective and get that confession out of you.

Exactly.

Right, exactly.

And then interrogation day comes May, let's call it May 22nd, day before arrest.

So client voluntarily comes to the police station and, you know, this is all recorded and sits down and he's told right away, you know, you're free to leave anytime.

And I'm, that door's closed, but it's open to you, you can leave.

This looks really bad, sir.

This looks really bad.

You know, they kind of lay into him without, of course, without showing him the video or anything.

And you can just see on his face this exasperation, confusion, you know, he just looks dejected.

Did they Mirandize him?

Not, not then.

Okay.

Not then.

They did after the arrest the next day.

Okay.

But they did not Mirandize him, no.

He's free to leave out of that closed police door.

Right.

Right.

But what he says in interrogation, I, you know, personally loved.

He maintains his innocence in several different ways, you know, and just comes off as very, like, confused.

And the police come off as very certain that he's definitely guilty.

It's got to be him.

Does he say anything of substance in that interrogation?

He doesn't really say anything during the interrogation.

Okay.

So he was at the interrogation and he was free to leave.

So he wasn't Mirandize at that point.

He doesn't really say anything of substance.

He just looks confused and eventually he leaves and he doesn't make any admissions during that time.

He just, he's denying his guilt.

Right.

So during the interrogation, they, uh, the police officers say, Hey, we'll be right back.

They leave for like half an hour, 45 minutes as they tend to do.

And client, there's a notepad on the table.

Client writes on the notepad, Hey, gotta go.

I've got to pick up my kid from school.

Then client leaves.

And then after that is when they decide they were going to arrest him.

And that's when they go and pick them up the following day.

And do you get footage of that arrest?

Yes.

And what does that footage show?

He's arrested, right?

He's Mirandized.

He's placed in the back of a police car.

He's been dealing with this sort of allegation now for a couple of weeks.

Um, he's tried to tell the police that he didn't do it.

It hasn't worked clearly.

And so he's, you know, based on conversations with him at this point, he's just lost a little.

He's, he's completely, you know, dejected, doesn't know what's going on.

And, um, is just quiet for the first bit of the ride to the jail.

But then at one point, the officer asks him about his phone.

And then officer's like, you know, what are you hiding from us?

Just tell us, man.

Something like that.

And at this point, he says what I think the state viewed as like the most damning evidence.

Um, he says, I did have my phone in camera mode, but I did not take a picture because I knew it was wrong.

Okay.

And they saw that as like some type of confession.

Exactly.

Okay.

And we'll talk about how you dealt with that at trial when we get to trial.

Was there anything else in evidence that you thought was like notable or that concerned you or that you liked?

The discrepancies between what the video actually showed versus the written affidavits by some of the witnesses.

They were just so different that when we first watched it, we were like, are we watching the correct thing?

Because like the affidavit said like that, oh, he did this dramatic 360 spin and put his phone under the dress with two hands fully extended.

And it just, that just didn't happen.

Um, and so I think that was one of the things for me that was most notable was how inconsistent all of it was.

Yeah.

That's exciting.

When you, when you hear that, how many affidavits were there?

Four?

Four.

Yep.

And they were like multi-page.

Oh my God.

Long.

It was, yeah.

Like all caps.

Dramatic.

Are the affidavits similar to each other?

In ways.

Yeah.

It seemed like they had all, I don't know.

I'm, I'm speculating, but it seemed like they had convened maybe before, before all this writing of the affidavits.

They were similar in that they all sort of had the same story about client making these passes at accuser.

Okay.

The previous passes.

Yeah.

The, can I help you with that?

Yeah.

The, can I take the trash out.

The staring at her.

Ooh.

The, um, mm, mm, mm sound.

That's what they said, that he went, mm, mm, mm.

Yeah.

It's just, like, reading this was just, it was ridiculous.

Did they write out, like, M, M, M?

Yeah, it was, like, capital M, M, M, M, M, M.

I was kidding, but I cannot believe they actually did that.

No, yes, they did.

The client, when he saw that, he just, like, was so exasperated.

Like, I keep using that, I'm trying to use words along those lines, trying to, like, capture how this man felt.

He was so exasperated.

Like, how am I facing 15 years on registry, six months in jail, on this, like, pernicious rumor that's just blown up?

Yeah, it's really, it must be humiliating to read that kind of stuff about yourself.

I feel compassion for people, like, that's really tough.

And that's one thing that he had mentioned was really hard for him to deal with, was there was also a news story about this.

And he was, like, my mugshot is on the internet.

Yeah.

It's in a news article that's calling me a sexual predator.

Is that your former employer, Max?

Did you?

Yeah, did Max write that?

Give him a piece of your mind.

Yeah.

That's a huge allegation, McKay.

Yeah, yeah.

They'll be on the editing room for it.

Don't worry.

No.

But I used my news skills in this case and emailed the editors and one of the reporters for this news station that I used to work with.

And I said, hey, please take that mugshot down.

He was found not guilty.

And to my surprise, they did.

Right, yeah.

They took it down.

Go, Max.

They put up a different, like, a nice just picture of him at work.

And they updated the story.

Not asexual predator.

This just in.

No, but that's just in, because the article is not going to come down.

His name is still there.

And it's a huge concession that they even changed the mugshot.

But you see that statistically.

If it's a black man accused or a poor person accused, the photo, when they run the article, is egregious.

And if it's someone with resources or a white person or a white man, it'll be the same article about whatever accusations, allegations.

And it's, like, the nicest, like, corporate photo you could find.

Yeah.

Yeah, so he's found not guilty.

And they're not going to update the article.

But they're going to elevate his photo to what they would have used for a white corporate guy accused of the same thing.

Right.

The right to be humanized in a news story.

Exactly.

Yeah.

Only if you're actually not guilty.

With these, I just want to break down the affidavit situation and the people involved.

So there's four affidavits.

What are the relationships between the four people who wrote the affidavits to each other?

And what are their relationships to Klein?

It's all people who work in the kitchen at the school.

Okay.

So they are all co-workers versus this outsider.

They for sure talked about it before.

I mean, you definitely get your story straight before you.

Yeah.

Did the woman write, did the accuser write an affidavit?

Yeah.

Did she say, like, oh, he did, like, put his phone under my skirt, even though she didn't really see it in the first place?

Yep.

Oh, that's great.

That's exactly what she said.

That's like trial gold.

Yeah.

That's unreal because the main person accusing him has only done so by watching the same surveillance that you end up watching.

That is completely inconsequential.

Yeah.

It's her ninny friend who had to get her, you know, go into everyone's business.

It's so reminiscent of the most painful moments in our national history of something that starts as a rumor and becomes wildfire.

Like an Emmett Till situation?

Yeah, Emmett Till becomes wildfire in a community, and people are too far into the story, and they buy in, and in that case, a black man gets lynched.

In this situation, I know physical lynching is not on the table, but 15 years on the sex registry is a social lynching.

You can't do anything after that.

And it is just so reminiscent of Emmett Till when you have a dogpile of white women who are talking to each other, and no one has seen anything of substance to support an allegation that will end someone's life.

Exactly.

What else was in discovery?

That was pretty much it.

Okay.

So we have the affidavits, surveillance, body camera of client's arrest, interview video where nothing's really said, and the police report.

That's everything?

Mm-hmm.

All right.

So you end up going to trial.

At what point do you know it's going to be a trial?

Max, I remember getting a text message from you Friday night, the Friday before trial, and you texted me.

It was like, I don't know, 9 o'clock, and you said, it's on.

And I just wrote back.

I was like, let's fucking go.

I didn't think there was like a real moment.

No, because I think client had come in to the office.

Maybe that prior Thursday or Friday to have one final, okay, what do we want to do?

Client was just like, I can't cop to this.

We have to take this to trial.

I didn't do this.

Were there any plea negotiations?

I know we talked a little bit about, you said that you were going to ask for an assault.

So did you ask for anything lower than the 15 years or the voyeurism?

We did some brainstorming of like, okay, if client does not want to go to trial, what can we negotiate to get the 15 years off the table?

At one point, we were thinking an assault.

Then we were thinking, okay, maybe if they want something still in the sexually oriented offense range, maybe like a public indecency type situation.

Would be an M1, but wouldn't have any registry requirements.

And we kind of just brainstormed what creative thing we could think of, but never any formal negotiations between.

So you never asked.

You thought like maybe we can ask this, but your client just didn't want to plea to anything.

Exactly.

And the state obviously didn't offer anything.

Right.

How was your client feeling like heading into trial then?

He was a nervous wreck.

Yeah.

Yeah.

That's terrifying.

And did you guys know that you were doing a jury trial the whole time?

Did you consider a bench?

We talked briefly about the possibility of the bench.

You know, after discussing it with a bunch of colleagues and asking their opinion, it was better to a jury, we think, on this case.

Yeah.

And I feel like if you, times where we don't know, a jury is just better.

At the very least, it's more people.

Yeah.

At the very least.

I don't know if you've seen Better Call Saul, but at the very end, I don't want to give too much away, but at the very end.

I think at this point you can spoil it.

It's been many years.

It's true.

There's a statute of limitations on spoilers, I think.

We're past it.

He's on trial, you know, and he's like, I just love the show, but he says, I only need one.

With a jury, you only need one.

You only need one.

Out of eight in Ohio.

Yeah.

Yeah.

Well, you got eight.

Spoiler alert.

Were there any motions pre-trial?

Trial set on Monday.

On Friday, the state files this 404B notice attempting to get in these, the past passes at accuser.

The alleged staring, the alleged, you know, offers to help take out the trash and the mm-mm-mm.

Like as a prior bad act?

As a prior, what they call act.

Oh my God.

They characterize it, they characterize it, they characterize it not as bad in the motion.

So, according to the state, it falls outside the purview of 404B because it's not a prior bad act.

Okay, so just so, just for our listeners, 404B is improper character evidence.

So, you cannot bring evidence of a prior bad act or previous crime, with some exceptions, to show propensity to do the thing that you are accused of now.

So, we know that this person would do the thing they're accused of now because they've done other bad things in the past.

That is inadmissible evidence.

You can bring that type of evidence in for other reasons, like identity, motive, absence of mistake, things like that.

So, what Max is saying is that the prosecutor was trying to say that there are these other acts that, well, a smart prosecutor would say these other bad acts that are not used for their propensity, but used for another reason.

Let's hear what this prosecutor said that they were being used for.

Well, he threw the book, you know.

He, in his motion, said it was being used for motive, intent.

I think you said absence of mistake.

Absence of mistake.

He tried to argue that what he called catcalling was, first of all, not bad, and second of all, was not, you know, was not being used for what, you know, Dallas Guttman just said, this propensity.

He wasn't used it to trying to paint this man as this bad guy, when in reality, that's exactly what he was doing.

I like that argument.

It's not an other bad act because it's not a bad act, so it should be let in.

That's such a unique caveat.

Honestly, like, no T, that's like, that is mental, I know, I'm like, almost borderline respected, so creative.

This couldn't be other bad acts because catcalling is not bad, so let us bring it in.

Right in the state of Ohio.

Yeah, I mean, you know, it was creative.

And to the judge's credit, like, he got, he went over to his laptop, he got on the Lexus, he read, you know, about it.

He, some of the cases we cited were, I mean, you might remember, like, examples from law school.

Prior acts that are admissible are, like, when you're charged with murder because your wife drowned in the bathtub, and you argue it's a mistake.

Like, this is a mistake.

It's a horrific mistake.

But the defendant's prior two wives also died by drowning in the bathtub.

Like, at that point, maybe.

It's absence of a mistake.

That there's not this mistake happening over and over with his wives drowning in the bathtub.

So we kind of hit on that, you know, the prosecutors, the states trying to introduce this vague, undated actions that have nothing to do with taking a photo of a woman's skirt.

You know, I mean, offering to take out the trash, it's not, I mean, it's a relevant one, but two, it's just not an admissible prior act.

And it was almost comical, sorry, but it was almost comical because he, the prosecutor kept saying, well, it's not, it's not propensity.

It's not propensity.

What?

What is it?

What else is it?

Right.

Like, you are trying to show that this man is a weirdo by saying, oh, he did this, this, and this.

If that's not propensity, literally what is?

Like, that is the definition.

I mean, I think that if he didn't think it was propensity, he wouldn't have filed that motion.

He just would have asked about it.

Oh, for sure.

Yeah.

Yeah.

Yeah.

I mean, if it were me, like, I don't, I wouldn't want the cat calling in, but I don't know if I would mind about the asking to take the trash out.

Because I think that would discredit the witness by being like, he's a weirdo.

He asked if he could take the trash out on his way out.

And that's why you're Dallas.

I mean, I don't think I would fight that hard on that.

Because then you could be like, what the hell?

Like, that's, that's a great point.

I did not even think about that.

So then what, so how did the judge rule on the motion?

He denied the state's motion, shaking his head of like, why are we doing this?

Why are, why are you making this argument?

Why are we here?

What are you talking about?

So this is pre-trial.

And then after he denies the state's motion, you go right into trial?

We go right to jury selection.

Right into jury selection.

Okay.

So let's talk about jury selection.

Who are you looking for in your jury?

I mean, we're, we're looking for discerning individuals.

I think all defense, a lot of defense attorneys, oftentimes that's who they're looking for.

They're looking, we're looking for people who will understand like that the burden is squarely

on the state and not on the client, not on the defense attorney.

And I, we got really lucky.

Like we had such great jurors.

We had this woman who works at the zoo who was phenomenal.

We had a lawyer.

We had a social worker who was kind of had the worst facial expressions.

I think of all of them.

I was kind of nervous, but you know, social workers worked with people of all, all walks

of life.

You know, I think is, he was great.

Yeah.

We had a very, very highly educated jury.

I think maybe five out of the nine, including the alternate had professional degrees.

I don't know if we really had a specific type of person in mind that we wanted.

I feel like we were just kind of going off vibes and like who was engaging with us and

who I thought importantly, who was engaging with the prosecutor because the prosecutor and

this one woman were like becoming best friends.

Oh, okay.

So that's like a, that's like a de-selection type of thing.

Yeah, exactly.

We did not want anything to do with her.

What was the prosecutor's voir dire like?

His voir dire was so uncomfortable.

Critics are saying uncomfortable.

He was so, he was so robotic and he just went down the line.

He started with juror number one.

Okay, juror number one, you went to this school.

You do this for your job.

That's great.

Blah, blah, blah.

And he just went, he just cold called.

People down the line, one, two, three, four, five, et cetera.

Yeah.

I remember a moment when there was a juror who was very skeptical of police work and we

loved the guy.

And the prosecutor sort of kept talking to him and kept having this back and forth.

So he, the prosecutor was sort of, you know, we say, use these types of jurors to sort of educate

the others before they get preempted off.

Right.

Well, the prosecutor was like doing that for us.

So that was, that was useful.

I forgot about that.

Yeah.

Awesome.

Did you guys, why do you know anything specifically?

We sort of like talked about me too without saying me too.

We didn't want jurors.

We, I told this like really personal story that I'd never really told to others before about

my mom who was nearly raped as a teenager.

And it was this, it's this horrifying story that she sometimes tells and she, she couldn't

sleep afterward until she had me and she, she finally like convinced her or like forced

herself to be able to sleep in order to take care of me.

But then I said, she also tells this other story about when she herself was a juror on

a rape case.

And she always tells me how once the defendant walked in the room, the very first moment she

saw him, she knew he was guilty.

And so I said, you know, my mom went through a traumatic experience, no blame in any way

for her for holding that like gut reaction to that defendant, but she wasn't a good juror

for that type of case.

And is there anyone else, you know, in the room who might have similar experiences?

And there was one woman who said, yeah, you know, I went through something similar.

I, I've traumatized by it.

I don't think I can be fair on this case.

Sex cases are tough.

They're tough to voir near on.

And you got to talk about a lot of really sensitive and traumatic stuff with people.

Well, it's different than your OVIs, your assaults, your, you know what I mean?

There's always somebody who knows somebody or somebody who's had sexual trauma, unfortunately.

Yeah.

I mean, it's asking a bunch of people to be really vulnerable in front of a bunch of

strangers.

Yeah.

It's just not something you do very often.

It's uncomfortable.

Yeah.

And you modeled that by doing it yourself.

Like, how did you feel after you opened up like that to the jury?

I think it was effective.

It's weird to like use my mom story in that type of way.

But I had like, I had talked to her about it beforehand.

And, and I think I felt in some ways I felt more comfortable almost after I, I said that

story, you know?

Um, I'm not really sure why, but I just felt, you know, like I had been vulnerable.

I don't know.

It's hard to explain.

I just felt like more at ease.

Yeah.

Did the jury seem to open up more after you said that?

I mean, it was like night and day.

People felt so much more comfortable.

It just felt more natural.

It felt more like a conversation.

Yeah.

I, going back to like that story, I, I think people, when they come into a courtroom like

that, they're afraid of getting in trouble.

They're like, yeah, there's this judge and there's a police officer maybe lingering and

there's fucking lawyers.

Yeah.

It's very stiff.

So I want to try to like get them to break out of that feeling of, you know, I have to

sort of censor myself.

Right.

And then as the elements, yeah, I, I use this like murder.

Everybody knows what murder is.

If no person shall cause the death of another and just do these simple examples, you know,

if I kill myself, I've caused the death, you know, on purpose.

Why is it not murder?

And people sometimes take a minute so they can, you know, really parse out each word of

that sentence.

Oh, it's not the death of another.

And so hopefully, you know, when they're actually making their decision, they'll do the same

sort of work on the elements on the crime in question.

That's a great tool, Max.

Yeah.

Yeah.

And shout out to you for being so vulnerable with the jury because that's our biggest fear

is that our client's biggest fear is that we don't know who's on the jury.

And the only way to know is to get people to be vulnerable and to say ugly things either

about themselves or things they've experienced.

And we can only do that by modeling it, even though that's, that's hard.

So well played.

Thank you.

Yeah.

Was there anything else in voir dire that was notable or?

Not really.

All right.

We had pretty good group of people.

We got lucky.

You liked your jury then?

Loved them.

Did client like them?

Yeah.

Yeah.

We, we came back out after the peremptories, you know, and we had, and everyone shuffled

in.

We had the jury selected and the client turned to me and said, thank you.

Oh, I love that.

It was such a nice moment.

That's cool.

You're like, don't thank me yet.

Yeah.

Yeah.

This is just step one, buddy.

Buckle up.

That's the best reaction you can get because you're teeing it up so that client can have

his day.

And so if you like the jury, then you at least feel whatever's about to happen, that it's

going to be a fair fight.

Right.

That's all you can ask for.

Yeah.

That's a good feeling.

All right.

So onto opening then.

Let's talk about the state's opening first.

What was that like?

It was pretty similar to how he did his voir dire.

It was very sterile.

He said things that just didn't feel right.

So he was using these big words.

Like, I swear, he used the word congruent no less than like seven times during this story.

He said the evidence will show that like what he did could not have effectuated another outcome.

You know, I love a good conversational opening.

That's good.

Really locks in those jurors.

Really writing for the ear there.

Yeah.

But yeah, because they need to pull up with that level of certainty.

But you can do it with a humility that acknowledges the facts of the case and the holes in the

case and gain credibility with the jury.

So yeah, when you just speak in platitudes like that, and you're also not speaking a form

of English that anyone in 2025 speaks, it's hard.

Right.

Right.

Yeah.

Yeah.

What about what about your opening?

The biggest point I tried to get out was just like, believe your own eyes, folks.

You're going to hear all these witnesses say that something happened.

Just believe yourself.

Believe your own eyes.

It's all on camera.

And you, you know, like trying to empower them.

You have this function to make the decision on what you see.

You don't have to listen to what other people are saying you're supposed to see.

Great.

Okay.

Yeah, that's good.

Congruent.

That was congruent to what you should do.

That's congruent with a not guilty.

You effectuated a congruent opening.

So then state's first witness, who did they call?

They called the co-worker of the accuser, the woman who says that she saw it live with

her own eyes.

What did she testify to on direct?

She testified kind of like what she wrote about in her affidavit.

I think she testified like he did this 360, two arms under, uh, dress, two arms extended.

And then we played the video and the theme of the witness's testimony was to just say they,

they could not see the phone.

The phone was the key, right?

The phone is what records.

And they just kept.

Like they pretended like the phone wasn't in his hand.

I don't understand.

So in the video.

And the prosecutor played the video during her direct.

Yes.

Okay.

And you saw every single juror lean forward in their seats to like try and get a better

look at the big screen.

Okay.

But she testified on direct that client did this full circle, extended both of his arms

to their full reach and took a photo or a video under the dress.

And that's clearly not what was shown or seen on the surveillance video, but it's like they

just had like selective amnesia.

When we're showing them the video, they're still saying, no, he extended his arms all

the way, put it, the phone under her dress.

Wow.

Oh, so in cross, you're confronting them saying like, no, like this is what happened.

Show me when they extended the arms.

And they're like, he extended the arms.

Right.

Yeah.

It's, it's like this just break with reality a little, it was very unbelievable for her to

say, I can't see the phone right now on this surveillance footage that is on this massive

smart board and we have it pulled up and we have it zoomed in and she's testifying.

Well, I don't see the phone, but the day of I did see it and it was angled up.

That is so scary that people can get to a point where they literally believe what they're saying.

And maybe it's a lie, but maybe they literally believe what they're saying because of the

level of confirmation bias.

When you have snowballed something in community with like-minded people for that long, and now

you're locked in and now you're convincing yourself that you're seeing something on a giant

screen that is or isn't there.

Yeah.

Right.

What's that called?

That's like cognitive dissonance when it just like, your story can't not be true.

Right.

So on direct, she's saying this like 360 arms extended, watching it on the smart board saying,

okay, that's what I'm saying matches this.

And then on cross, what are you doing on cross?

I think the state on direct played the video, but they didn't really play the video.

You know, they just ran it.

They didn't zoom or anything.

So on cross, I'm trying to slow it down, you know, and really for the jurors, zoom in,

slow it down so they could see this phone.

So they could see that the screen is off.

The angle is not in any way updressed, that it's not what the witness is saying is happening.

It was short.

It was pretty brief because she just stuck to this tail.

She really was like not important.

We wanted to make the trial about the half a second of video that mattered.

Right.

And, and really about very little else.

Yeah.

So that makes for short crosses.

Yeah.

Yeah.

So you're not even dignifying the bullshit.

Yeah.

Right.

How did you feel though when you crossed her?

Cause you're probably all excited still to impeach her.

Cause it's still, it's still fun.

It's still be good.

And you're like, what about this?

And she's like, yeah, it's there.

I felt gaslit.

Yeah.

A little bit gaslit.

And I, and I, I'm glad this happened on day one and that all the witnesses happened the

next day because it, it really prepared me for how to address this line that the phone

is recording this up, this woman's skirt, you know, and, and to impeach with what we

had, which is the surveillance camera totally rebutting that claim.

Aren't you kind of excited by this though?

Cause it's such good clothes material.

Yeah.

Dallas Guttman.

See, I'm not Dallas Guttman.

So anything else on this first witness?

Nothing notable.

So the next day is the second witness.

Who is the second witness?

Second witness is the accuser.

And so wait, you, did you cross the, I crossed, I crossed her.

Okay.

We had a lot of discussion about who should do it.

And we decided that it would probably taste better if a woman did it.

So her direct, she basically just said that she knew he was behind her, was trying just

to ignore him.

Yeah.

I mean, um, I don't think there was much to it.

You know, she just said a little bit about how she felt.

She felt totally disgusted and how this, this, uh, so severely affected her.

She was on paid leave for a while.

She didn't even see it happen.

Like she would have had no clue that this person was even behind her, had her friend not said

anything.

That's crazy to me.

Yeah.

But I digress.

Yeah.

Lots of objections.

I remember worrying a little about the objections.

I was, I was worried the jurors were going to hold that against us.

Do you vaudeer on that?

No, I didn't.

But after the jury, the jurors were like, we love those objections.

Really?

Yeah.

Cause to them, it's like, I feel like to them, it's like TV.

They're like, yes, finally something I'm familiar with.

Objection.

Everyone knows, everyone knows objection.

They know Miranda and they know objection.

Yeah.

Like at one point they were like, we wish we knew what you guys were saying.

And we're like, well, that's the whole point of going back to chambers.

And then they were like, and we knew that you guys won because when you walked out, you

were smiling.

I always tried to make sure I was smiling.

Leave chambers like you won.

Even if you fucking lost.

Yeah.

So, okay.

So then direct is not really that.

Does it feel damning?

No.

Okay.

Not really.

That's good.

So we're underwhelmed.

Yeah.

And so, and I actually loved that on direct, she said that she had to go on paid leave

for the rest of the school year because she made that sound like it was this big, huge

deal.

And one of the questions that we already had planned to ask her was there was only two

weeks left of school.

Oh, come on.

And she was like, yeah, you're right.

She got a two week vacation out of it.

She got early semi break.

Now she just looks like a hustler, which I mean, power to her, but not in this context.

Yeah.

Yeah.

I stuck my toe at work the other day.

I think I need two weeks off too.

Yeah.

I'll see you guys in four months.

Yeah.

McKay walked too close behind me the other day.

So I'm going to need a couple of months off.

Me too.

So you were saying that you kind of like eased into it a little bit and then you just like

hit her over the head with it or how did it go?

Pretty much.

Yeah.

So we pulled up the video.

We had it zoomed in on the moment of when this is said to have occurred and the video

zoomed in on client's hand and we're saying the phone screen's off.

You know, it's not underneath your dress.

It's not turned on.

It's not taking a photo.

Correct.

Correct.

Correct.

Correct.

And then at one point she goes, I'm not even sure that's his phone in his hand.

What?

Yeah.

And so at that point I turned to Max.

Nothing further.

I think I had maybe like another page of questions.

I turned to Max and I was like, we're done.

Yeah.

We're done.

Get out.

Holy shit.

I think it's like from Mulan when she's like, get off the roof, get off the roof, get off

the roof.

I cannot believe she said, I don't even know if that's his phone.

That is crazy.

Yeah.

That was crazy.

And like we both were looking at each other like, did she really just like, are we hallucinating?

Did she really just say that?

Did the state try to rehabilitate that at all?

No.

I don't think they could.

I don't even remember.

I'm no government actor, but I would have tried to rehabilitate that if I were here.

Right.

I mean, I think if they rehabilitated, they would have just been playing into our hand.

Yeah.

Yeah.

There's the phone and it's off, you know?

Right.

Right.

But she also said on Cross that this was the second time she was watching the video.

Yep.

Yeah.

The first time she ever watched the video was the day after the incident when the school

principal or whomever showed it to her.

And then she said that today in trial, live on the stand, this is the second, only the second

time she's ever watched it.

But she wrote like a three or four page affidavit about what happened to her?

Yeah.

Yeah.

Wow.

She accused her of a registerable sex crime after watching it, you know, once.

Yeah.

And hasn't been at work in months.

And had to leave work.

Crazy.

Yeah.

Okay.

So then you say nothing further.

You don't even know if that's his phone.

They don't do a redirect.

Who's your next one?

Who's the state's next witness then?

Well, so we broke for lunch and we thought that was a really good pause point to kind of

let the jurors marinate in that.

That's a great like intermission moment.

Yeah.

It could be 9 a.m.

You'd be like, lunch.

Yeah.

Like, holy shit.

Yeah.

And then so we came back for after lunch and we did the two final officers or the two

final witnesses, which were both police officers.

And Max did both of those.

One was a detective, a little bit more circumspect, maybe.

The other was this officer who was just, you know, adamant that this happened.

The detective and the officer.

So on direct, each of them, you know, they said, we reviewed this video and it appears,

they said the word appears a lot, which I loved.

It appears that he, you know, reaches under this woman's dress and took a picture and we

had a hard time getting him into the interrogation room.

It took us a couple of weeks.

And when he finally did come in, he wouldn't give us this phone and he said he needed it

for work.

God forbid.

And then he left after we told him he could leave.

After we told him he could leave.

And then, you know, I mean, the big moment for the officers was the comment in the back of

the police car about feeling it was wrong, about putting phone in camera mode, but not

taking a picture because it felt wrong.

So then how do you deal with that on cross?

I didn't address it on cross.

If memory serves.

Good for you.

I just waited for closing.

Yeah.

Yeah.

I didn't, I didn't want to like bring more attention to it, address it in closing and

characterize it as I think it should be characterized as like this man who's desperately asserting

his innocence over and over to these police officers who are not listening and then arrest

him.

You know, his world's coming down around him and he does not know what's coming next.

You know, he's being driven to this, he's never been in jail and he finally says what

he thinks they want to hear, hoping he gets some better treatment finally.

Right.

Which is common.

Which is common.

We can go into that a little bit more during, when we talk about clothes.

Right.

What did you, what did you cross them on then?

So the cross was, I think it was pretty long.

It included the interrogation, you know, of course hitting on, you told this man he's free

to leave, right?

Right.

You left the room for 30 minutes, right?

Exactly.

He left a note.

He said exactly where you, you know, he was going and you have his contact information.

He didn't just run.

He, um...

That was, that was polite of him, by the way.

Yeah.

Yeah.

Hey, by the way, I gotta go.

I left the oven on, but, uh, you know, if you need me, here's my phone number.

Right.

Um, and one thing that came up in the interrogation, the police are really trying to get this phone

from him.

And they're like, well, we have this software.

Even if you have a burner phone, we can find every picture you've ever taken, every app,

even on a burner phone with this software.

So, we want to believe you.

And so we really need that phone, though, to believe you.

And he's just like, okay, you know, you can have my phone, but I really do need it the

next couple days.

Can I bring it on a Friday?

So, we use that, you know, and also the, the fact that the, the officer who arrested him

had client's phone in his hand when he was booking him into jail and then gave it up.

We hit on that some.

Yeah.

And I, I think it's important, too, that the prosecutor, in relation to getting the phone

searched, talked about that a lot and talked about how the police had this capability to

do it, but he conveniently failed to recognize that they didn't do it.

And I don't know if this is jumping ahead too far, but after the trial, when we were speaking

to the jurors, one of the jurors was like, well, why, if they had the phone, why didn't

they search it?

And the prosecutor apparently told them, oh, well, the police department just didn't have

the money to do it.

What?

And I'm like, do you know how much their property taxes are?

They just have army tanks, but they can't search the phone.

Well, also that's like extremely disingenuous, right?

Like saying that the whole time that they could do it if only client gave the phone, putting

it on client and then going back afterwards and saying, oh, they didn't have the money

like that.

Yeah.

No, that, that is the purpose of search warrants.

Like, right, right.

Yeah.

Get a warrant.

I know they have the capability to do it.

If they want it, it doesn't matter.

They'll do it.

If they want it, they'll do it.

That's insane to me that he would say that.

It was very mind numbing.

Did they at any point get a search warrant for this phone?

Not to our knowledge.

And once they had the phone via consent.

It went into his property in the jail.

They did not search it.

They did not search it.

They, it's on body cam.

You see the officer walking in and this red phone in his hand next to his phone and you

see him handing it to the jail guards.

Like, so we played that, you know, like that was the phone.

That's you handing it away.

You didn't get the phone any time after that.

Right.

That, that's right.

Okay.

Super work there.

Good job.

Well, we're broke actually.

So we, uh, right in a property.

Right.

Is there anything else with these witnesses?

The exhibit that Max had was a screenshot basically from the video that was blown up on this massive

piece of paper and you had, I think it was the detective, um, circle in red Sharpie, the screen

of the phone to show that it was black.

Right.

And then in your closing took the giant photo and placed it on the ledge in front of the jury box.

Is this like some laminated or like, did you put cardboard on the back?

I'm imagining.

No, it was just a piece of paper.

You guys are calling this like this giant photo.

I'm like, this is this big, you know, I think it was like two and a half feet, three feet

long, you know?

Oh, so you, you got like, we blew it up like printed big.

Yeah.

Shout out to my wife who ran to Staples.

Yeah.

I was going to say, is there, how do you do that?

Like, we'll talk about that offline.

I didn't know.

I don't.

Yeah.

I just do like the eight and a half by 11s.

Like, good luck.

Look close people.

But that Sharpie idea, I don't know if you remember, Molly, but like right before I get

up to cross detective, I had, I had whispered to you like, get me a red Sharpie.

Give me some non-black Sharpie because the photo, the phone is black.

And I didn't really foresee the witnesses refuting like so adamantly the phone, like the surveillance

footage, like what we could all see with our own eyes.

The accuser saying she couldn't see the phone, like I did not think the trial was going to

require having a detective take a red pen and circling where the phone is because I thought

we could all agree what a phone looks like on surveillance footage in a man's hand.

You can't make this up.

It was not expected, but it was a good move to get the detective to circle it.

So we are all clear.

We're all on the same page.

This is the phone.

I think sometimes that's like enough for juries.

Like they're tracking what you're saying.

And I think it was enough for this.

Right.

Like you don't need your witness to agree for the jury to understand what you're doing.

And it also kind of discredits the witness.

Right.

It makes them look like you're like, come on.

Like, yeah, I think they do lose credibility.

Yeah, they do to have to go that like granular and say, you see light emitting here, but

not here.

Like I did not expect to have to do that, but they're just, they just, yes, they play this

game on the stand.

So with these officers, that's pretty much the biggest thing that you get out of them on

cross is the existence of the phone and the fact that the light is off during the quote

unquote big moment.

For sure.

Okay.

Cool.

Okay.

And you publish the photo.

Right.

Right.

Yeah.

With the red Sharpie on it.

Yeah.

Okay.

So we go to the state.

Is there any more witnesses?

Nope.

That was it.

State rests.

Yep.

Do you move for acquittal?

We did.

Was it granted?

And we, we actually made a, we made an argument.

Immediately denied.

But yeah, it was denied.

All right.

Defense case.

Is the client going to testify?

He slept on it.

And then we talked about it that morning and in the hallway.

Did you want client to testify?

We had like gone back and forth about whether or not we thought it was necessary to try and

explain his comment in the back of the police car.

Because to us, that was our worst fact.

Right.

Was this like quasi confession.

And we felt after the first day of testimony and then all the, the prior testimony of the state's case, we felt we were in a pretty good spot and that we had more to lose by him testifying than we would gain.

Right.

That's typically the analysis, right?

Yeah.

High risk, low reward.

Yeah, exactly.

Yeah.

So he decided not to testify.

We rested and then went into closing.

On to closing.

Okay.

So let's talk about the state's close first.

What was that like?

So his first closing was pretty similar to his opening in the sense that it was guaranteed.

This is what happened.

You saw this happen.

We have video of this happening.

And it just didn't fit.

And then Max went into his closing.

All right, Max.

Which, let's hear it.

It was great.

It started with the fact that the officer kind of conceded in that phone call with the client that it may be a misunderstanding and sort of gave the jurors a timeline of all this.

This is, he said this after he had seen the video, after he had spoken with the accuser, after he had gathered all of these affidavits.

He himself, the officer on this case, said it may be a misunderstanding.

And then going into the, you know, your only consideration here is whether or not client recorded.

That's all you're looking at.

Did he record?

Did he not record?

Back to like, you know, believe your own eyes.

At that point, took the exhibit that the detective drew on and circled the phone and sort of just laid it out in front of them.

And I remember when laying it out, you know, they all sort of leaned to get a look at it, which was kind of gratis.

I think they wanted to see that Sharpie, you know.

Where is that goddamn?

And then just, you know, kind of spoke about all of the, all of the reasonable doubt.

The witness talking, the coworker, you know, talking about how she immediately knew what she saw, yet she spoke with the accuser one minute later and didn't mention it to her.

How she, you know, her statements did not align with the video.

He didn't do a 360.

He didn't do this theatrical stoop down with his arms extended and the angle of the camera lens up the skirt just did not happen.

Really tried to hammer, the burden is on them.

And they just flopped.

They had the phone and they didn't search it.

If you're, if you're like curious what was on that phone.

Yeah, it's on them.

That criticism has to go toward the state, you know, that hasn't, that cannot in any way come toward us.

And, and they have the software and, you know, they had all these opportunities and they just, they bungled it.

They really did.

And then ended with the accuser herself, you know.

I think she at one point had said, it does not appear to be so.

You know, in your affidavit, you wrote that he reached under your dress with two arms.

And then on cross, you said it does not appear to be so.

Wow.

She didn't even know that was the phone that they, she was looking at.

Exactly.

Exactly.

Yeah.

Yeah.

That was, I think that was one of the last things I said.

Like, she didn't even, she wouldn't even admit the phone.

She only watched the video one time and now she can't find the phone.

You jurors can find the phone.

Right.

It's right there.

It's right in front of you.

You know, you believe your own eyes.

It's your, ball's in your court now.

You know, it's your decision.

What do you see?

Great.

And then what about rebuttal?

State rebuttal?

And then, yeah, his, the prosecutor's rebuttal closing was like fire and brimstone.

Truthfully.

He was yelling.

He was so dramatic.

It was like, okay, this is a complete 180.

They do that.

I think, because I think they're less prepared for the rebuttal.

And so the first one is like what they're prepared for.

And then the second one's like improv.

And like, it's so long usually.

And it's so sometimes very like circular.

And you're just like, stick to the script, my dude.

That is literally exactly what I was about to say.

Like, you could tell his rebuttal closing.

He had not prepared anything to say.

He didn't know what he was going to say.

He went on and on and on.

I swear it was like 10 minutes long.

15.

Yeah, and after a defense attorney has just shut it down the way Max obviously did, they're

like in a corner and they flail.

Yeah.

Exactly.

And he said some very improper things.

So first, he got really, really, really close to the line of burden shifting.

And additionally, he also, he broke the golden rule, which is a prosecutor is not permitted to

tell the jury to put themselves in the shoes of the accuser.

And that's exactly what he did.

There have been, you know, at my old job, we did a lot of appellate work as well.

And there was a case that we won an appeal on based on the prosecutor violating the golden

rule and telling the jury to put themselves in the shoes of this.

In that case, it was a child.

But he did that and-

Did you object to that?

Well, so Max and I were like staring at each other at defense table trying to decide what

to do.

And we ultimately decided not to object because we didn't want to draw more attention to it

because he just, he was rambling.

He was making circular statements.

Like he wasn't really saying anything with a whole lot of substance.

And so we were nervous that if we pointed it out-

It would look like it was bad for you, even if it's like, whatever.

Yeah.

Yeah.

Yeah.

I think in, I think in hindsight-

I wish we would have.

Yeah.

Knowing the jurors liked the objections too, especially-

Now that you know they're into the fight.

But yeah, he just was talking shit, basically.

He was like really mean and saying offensive things about the client, just that he's a

bad person and that he's creepy and this, that, and the other.

He used the word creepy?

I think he did.

And I think, I think he used the word criminal too.

Wow.

Yeah.

He called, yep.

He called him a criminal.

Wow.

And I think he, do you remember Molly?

Molly, did he talk about some, a side he had with accuser in the hallway?

Do you remember that?

I thought he said something like, she told me she doesn't wear dresses anymore.

Oh my God, that's right.

I forgot about that.

Right.

In his closing, he said that.

He said, she told me in the hall today that she doesn't wear dresses anymore because of

him.

What?

Because of what he did to her.

He was like literally under that, like under those rules, he could literally say anything.

I mean, he's just testifying.

Yeah.

Exactly.

He's, he's throwing hail there at this point.

The writing's on the wall.

Yeah.

So.

I don't even have words to unpack that.

That's, that's so procedurally left field.

He's like, client stopped me in the hall and told me he was guilty.

So you guys should find him guilty.

He's like, I got to search for him for the phone and here's what.

Yeah.

Panties all over that thing.

He took the picture.

Yeah.

It was pretty heinous.

Do you guys object to that?

No.

Okay.

Cause I mean, at this point in your defense, he's just so rogue that you're letting it ride.

Exactly.

Yeah.

Exactly.

Yeah.

And the jurors, I don't think objecting would have hurt us, but I don't think.

That's what I'm saying.

I think it's hard to be in the moment of a jury and making like jury decisions.

And also protecting the record.

Right.

You have to be super clinical if you're protecting the record, but you can like, but juries are

just like living, breathing beings.

Right.

Yeah.

And so you kind of want to like, you know, vibe on that and like protect the living, breathing

being too.

Well, and part of me was hoping that the jurors were going to just reject this, this like

fire and brimstone, this emotional.

Which they did, right?

Which they did.

You guessed right.

So he finished his closing.

And what is your client feeling at that point?

Oh God.

I don't know if I know.

I mean, I think he's just feeling a lot of tension and anticipation and maybe fear.

I'm sure there's a lot of fear.

What are you guys feeling?

How do you feel about your case and how it went?

I was, I remember talking to people, you know, writing to people and just saying I'm cautiously

optimistic.

The evidence, you know, I mean, it's on our side, but you got these four people getting

up on the stand saying they saw.

It's just hard to know.

It's a, that's a high pressure case.

It's hard to know.

Yeah.

So what's that hour like then?

What do you do?

Go back to the office?

Yeah.

We went back to the office, had some lunch.

We were walking back to our, you know, respective offices when the bailiff texted us and said

they had a verdict and we like freaked out, dropped everything, got our bags and ran back

to the courthouse.

Yeah.

So what's that moment like when you find out that you have a verdict?

Trying to analyze the time the juror, the jury was out.

Yeah.

No, you can't read the tea leaves.

If that means it's not guilty or guilty.

That's all I was thinking about.

It's impossible to know.

I know.

I always try to read the tea leaves, but it's, it's a kind of a futile effort to do so.

It sure is.

I was nervous that it was so quick that they didn't, didn't engage with the video much,

you know?

Yeah.

You wanted them to watch it.

And I wanted them to, right?

Yeah.

Yeah.

So that made me a little nervous.

I mean, they barely had time to pick a foreman and like order lunch.

They didn't even do lunch.

Yeah.

Okay.

They skipped lunch.

I know.

If they're not getting a free meal out of it, I also don't know what way that cuts.

So I don't know how to analyze.

Like, let's find him guilty.

I got to go.

I got to go to Dunkin'.

Yeah.

I just remember Max and I were walking across the street and we were going in through the

basement of the courthouse.

And like, I was on the verge of tears.

We had put so much into it.

There was such pressure.

And we looked at each other and we're like, I'm so proud of you.

And Max was like, I'm so proud of you.

And we hugged and we walked in and client was already in the hallway.

You could tell, like, he just had no emotion on his face because I think he was so scared.

Yeah.

Yeah.

That is scary.

It's scary for us as lawyers.

I can't imagine how it feels for a client.

For sure.

And so we go back in the courtroom and everyone is there except for the clerk.

Because the clerk who reads the verdict had gone to lunch.

And so we sat there in complete silence for what felt like forever.

But I want to honestly say that it was like 15 minutes.

That's an eternity when you have a verdict.

The jury was in the hallway, outside the door.

Like we knew they were there.

Yeah.

We're sitting there just, I'm sweating, like I could see my hair moving over my chest

because my heart was beating so fast.

Client, I felt so bad for him.

At one point, he just like has his head on the table and it was excruciating.

It was excruciating.

Yeah.

Knowing that they were beat away.

Yeah.

Yeah.

And they knew and they knew the verdict.

Oh my gosh.

You're the only people who don't know.

Like to me, that kills me.

Oh my gosh.

Or when they like get the paper and like every, you know, the judge has seen it, the

clerk has seen it, everyone knows but you.

That's just like, it's a nauseating feeling.

And this charge is completely different because you're not waiting to see if you're going to

jail.

You're not waiting to see if you have a misdemeanor conviction.

You're waiting to see if your life is over because you're on the registry for 15 years.

Like the stakes are so high.

Yeah.

So high.

I think that's the high stakes case that we do.

I think it's higher than most felonies too.

Yeah.

These registry cases.

It's higher than most felonies.

The impact is like, is yeah, more than a decade.

It's crazy.

Impact is huge.

Yeah.

Just the weight of that moment.

I remember when he's kind of rested his head and I remember sitting next to him and just

feeling so tense and like hearing his breathing and listening to my breathing and just trying

to take in breath and let out breath and just trying to focus on that.

Yeah.

That's all you can do.

Yeah.

Yeah.

So intense.

So finally the clerk got there and she was, she felt bad because she knew that we were all

waiting for her.

Well, yeah.

Yeah.

She has like a.

Pack of lunch.

Like a grande frap.

Yeah.

Yeah, exactly.

You guys are waiting for me.

Fine.

Yeah.

But so she finally got back and the jury came in.

I was trying to see if any of them would look at me and would look at us to see if like,

because in another jury I did that we got not guilties on, one of the jurors looked at

me and like gave me a little smirk.

And at that moment I was like, all right, here we go.

But none of the jurors looked at us.

So I was like, fuck.

We lost.

And then they read the verdict and it was not guilty and it was crazy.

He slumped.

He slumped down, you know, just like in.

And he started sobbing.

I don't know what he felt.

Yeah.

I mean, relief and like this release of this tension.

I just got chills.

Yeah.

Oh my God.

Yeah.

I, I, like I felt, you know, that tingly feeling like you're going to cry.

Yeah.

Just, uh, it, it's unlike anything else.

It is really the best feeling.

It's like why we do what we do.

It's the best feeling.

The buildup was so long too.

I don't think I mentioned this, but.

There was a small motion to compel that's pretty irrelevant.

Um, and it's just such a serious charge.

You know, we really like took our time, met, he came into the office three or four times,

watched the videos, um, over and over and over, talked about it over and over and over,

talked about like the registry and what, what happens if the state argues attempt.

And all this time he's wearing this ankle monitor and every time we're in court, he comes to

court, accuser comes to court, we're asking to remove the ankle monitor every time the

judge is saying criminal charges carry a modicum of inconvenience.

And we're arguing like 24 seven surveillance is not a modicum of inconvenience.

Right.

And the client, each time he comes in is, is saying, I cannot believe that this, I could

be facing this significant of punishment for something that's so obviously not true.

And it's just this like rumor mill from these people.

And, and it all like culminates in this like four second period where the verdict is read.

Yeah.

It's just, it's wild.

Yeah.

That's so well said.

Yeah.

It was such a great moment.

And like client was, I mean, he was sobbing and then he hugged Max and he hugged me and you

could just like see physically just his shoulders loosen.

Yeah.

Yeah.

And he just, it was, it was incredible.

So then what happened?

What happened next?

What's, what's next in the story?

So then we, uh, went to speak with the jury.

Max and I walked down the hallway to the jury room where the prosecutor is already speaking

to the jurors.

I opened the door and the prosecutor says, I'm speaking to them privately and pushes the door

closed in our face.

Nuh-uh.

And Max and I were like, okay, that's weird, but like have your moment, whatever.

So he's mad.

He's mad that he lost.

What was his face like during the verdict?

Did you look over at him?

I didn't even look at him.

Yeah.

I don't know.

Yeah.

Okay.

But now you know, now you know he's mad.

So then you got a chance to talk to the jury then?

Yeah.

What did they, what did they say about your case?

They say, we didn't really like how the prosecutor kind of appealed to our emotions.

And we're like, thank you.

Yeah.

We just felt like this case was, you know, the, the evidence did not show he recorded.

They said that.

Yeah.

Yeah.

You know, like the evidence did not show it.

They did not meet their burden.

They could have, maybe if there was a photo on this phone and they had shown it to us.

Um, but they didn't do that.

And they were very, very unhappy that the officer did not keep the phone.

Um, and they, they told us they did not watch the video.

They did not watch the surveillance footage.

They said all they used was the picture.

Yes, that picture rate.

Yeah.

They did not like how the witnesses characterized him as the milkman.

They didn't use his name.

They just, you know, dehumanizing him from the get go.

They just didn't like the way that he was treated generally.

Like the vibe toward him was off by these witnesses.

And then they say prosecutor on his way out had said something to the effect of, you know,

I guess you just didn't care enough about her, the accuser to protect her.

Yeah.

Whoa.

That is wildly inappropriate.

Yeah.

And the jurors added, you know, prosecutor says on his way out as well, that he had been

stalking her.

There's zero evidence of that.

It's not true.

It's, it's bad sportsmanship.

It's bad sportsmanship.

Were there any other memorable moments between jurors and you guys or your client?

Going back to, we had such a good group.

Um, I mentioned like they may have driven home worrying about their verdict.

This group did not feel that.

Yeah.

Like they told us after they recounted what prosecutor had said, they said, we like told

him, no, sir.

You know, you, you state have the burden and the evidence that you presented us presented

us was not enough.

So like they stood up for themselves when the prosecutor tried to shame them for their verdict,

which was awesome.

Good for them.

He corners them and realizes he's in the wolves then alone.

Yeah.

Yeah.

Good for them.

Exactly.

The alternate juror actually, um, gave Max her business card and asked if Max would pass

it along to client because she was so upset about how he was treated by everyone involved in

the situation that she wanted to offer him a job to come work for her so that he wouldn't

have to go back to that type of environment.

That's incredible.

Like these people are like salt of the earth people.

Yeah.

This is the golden jury.

It was a golden jury.

Have you kept in touch with this client?

You know, we, we talk, um, by text every once in a while, like when I was trying to get

the mugshot off of the news article, um, when we filed to expunge the record, you know,

he came back to court for that hearing.

Did the record get expunged?

It did.

Yeah.

It was a contested hearing.

The judge ultimately granted the expungement and he very plainly said this was an acquittal.

All right.

Well, good job guys.

And not only a not guilty, but also an expungement.

Yeah.

Not guilty and was never filed.

Yeah.

It's like, as if it never happened, just like a year.

And we'll delete this episode too.

Trauma later.

A year in trauma later.

Yeah.

Honestly.

I think about him like, you know, every once in a while, he's, he's got to live with that

fear that he had that trauma, like that treatment, the way he was treated.

That was the worst thing.

Yeah.

Phenomenal work guys.

Yeah.

Yeah.

Great work.

Great work.

This is the, uh, this is the part of the episode where we ask our guests what we call, um,

the ultimate question.

Why did you guys become public defenders?

We'll start with you, Max.

I think it goes back to when I was a journalist and, uh, you know, interacted with police often.

And I remember this time when there was a shooting where police shot this woman who was having

a mental breakdown and she ran out of her home with a sword in her hand and the police, this

officer shot her and killed her.

And this police spokesman goes when we're, he's being interviewed later that day.

He says the shooting was justified.

And I said, oh, how do you know that?

Did you see it?

Like, were you a witness?

Were you here when it happened?

And he said, no, I didn't see it.

I said, oh, how, well then how the heck do you know that it was justified?

And he said, uh, because our officers only shoot when it's justified.

And I just remember being so aggravated by a comment like that, you know, and that, that

wasn't just like a one-time thing that happened over and over again.

And I wanted, I think I just wanted a chance to like have a forum where I could try to hold

to, to account in a different way.

And I thought I could find that as a lawyer, I guess, as a public defender.

Awesome.

So I worked, like I said earlier, at a private defense firm.

I actually worked there for six years.

I worked there my senior year of college, all through law school, and then for a year,

about a year and a half as an associate.

When I was working at the firm, we took, a lot of our cases were appointed federal cases

through the Criminal Justice Act, uh, panel.

And so we were working with a lot of clients who, you know, aren't different at all from

the current clientele that we have.

It just was in federal court.

And it really opened my eyes about how fucked up everything is.

And I wanted to feel like I could help in some way or make some small difference in someone's

life.

It just felt like I just needed to use my time and energy and resources for something decent.

Yeah.

And you guys did.

You saved an innocent person 15 years on the sex offender registry.

Yeah.

Yeah.

Good work.

Thank you for telling your story.

We really appreciate it.

Yeah.

Awesome job, guys.

Honored to work with you.

Honored to have you on the pod.

Yeah.

We're better for knowing you and working with you, for sure.

Thousand percent.

We'll see you back on the pod with the next NG.

But yeah, just, just really great work.

Thanks, guys.

That'd be great.

All right.

Thank you.

Thank you.

And now you can follow at Another Not Guilty on Instagram, Facebook, and YouTube.

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

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

And guess what?

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

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