All Or Nothing: The Bucket Hat Cat Burglar – When Testimony Alone Decides It All

My client, he told me that he's the one that called 9-1-1. The CW is saying, "No, I'm the one that called 9-1-1." Well, in the radio logs for 9-1-1, there was a note that said that it was unclear whether or not the suspect was still on the scene due to a language barrier. And the complaining witness speaks English. In the body-worn camera, you can see the apartment, the inside of the apartment, nothing else.

Everything is out of place. The bedroom doesn't look like it's been rummaged through, or anything's missing. The only thing that looks out of place is where my client was found bloodied.

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.

The not guilty.

All right, all right. Welcome to another episode of Another Not Guilty.

My name is Dallas Guttman. I'm a public defender in Cincinnati, Ohio.

My name is Rachel McKay. I'm also a public defender in Cincinnati, Ohio. I work with Dallas.

And we have a great guest today. We are here with Felipe. Felipe, do you want to introduce yourself?

Yes. Hi. My name is Felipe Gonzalez, and I'm a public defender in Anne Arundel County, Maryland.

Where is that?

It's like a 20-minute drive east of D.C., about a 20-minute drive south of Baltimore. Not even that.

East of D.C. south. You know what? I'm from California, Felipe, and I just don't know East Coast geography like I should.

Yes. So, I mean, Anne Arundel County is a county that has the city of Annapolis in it, and it's right on the Chesapeake Bay.

Okay. Oh, cool.

So that's kind of where it's at, yeah.

Yes. Okay.

I'm just going to pretend like I know.

Oh, the Chesapeake Bay.

Ah, yes.

We're just this time of year. Mm-hmm.

Felipe, did you go see the cherry blossoms yesterday?

We had a phone conversation with Felipe yesterday, so I know he was planning on doing some type of outing.

Yeah, no, we were going to go to D.C., but there's a lot of tourists, so instead we went to Fort McHenry up in Baltimore.

It was a good time.

That's awesome.

Cool. Great.

After this, I'll Google what Fort McHenry is, too.

Yeah, I'm doing it live.

I promise you, Felipe, I know some things.

Just nothing you've talked about so far.

We're about to get more into our lane now.

Well, it's the battle that inspired the Star Spangled Banner.

Oh, I know it well.

So, Felipe, you're a public defender?

Yes, I'm a public defender, yes.

How long have you been a public defender?

I just hit eight years.

Great.

Okay, Felipe, so we have a very interesting case today.

Why don't you tell us what the charges are?

My client was charged with home invasion, first-degree burglary, armed robbery, robbery, first-degree assault, second-degree assault, reckless endangerment, and theft.

Whoa.

My God.

That's a lot of charges.

Yeah.

You know when you get, you can see the piece of paper that your client's charged with, and you can see kind of like the progression of the night, like an OVI, a hit skip, a seat belt, a speeding, a red light.

You're like, okay, I see what happened here.

That's kind of what that sounds like.

Into the OVI, into the resisting, into the...

Oh, okay.

Into the searches.

Into the searches.

You hit something.

No!

All right.

So we have a lot of charges here.

Tell us a little bit about how you first met your client.

I read the statement of charges, and, you know, shortly after the case was assigned to me, and kind of read it, and I was like, oh, that's bad.

Because the state's theory of the case, or what they thought had happened, was basically that my client, at like 2:15 in the night, scaled the exterior walls of an apartment building, all the way up to the third floor balcony.

Went in through the sliding glass door, and then got a knife out of the complaining witness's kitchen, and then went to their bedroom to rob them.

Just the statement of charge, I didn't have any discovery.

But just looking at it, I was like, well, that's bad, because they found him, and the police found him in the complaining witness's bedroom.

And the complaining witness said, yeah, that's the guy that robbed me, or tried to rob me.

So I was like, oh, I don't know how we're going to figure this one out.

But I go see the client.

They bring him into sort of like the attorney booth so we can talk, and they had to bring him in a wheelchair, because in the process of whatever it is that happened that night, the complaining witness used a knife and stabbed my client through the leg.

Later on, the body-worn camera showed that there was a lot of blood in the bedroom.

But my client had been stabbed so badly, he had to go to the hospital for a couple of days.

They had to do surgery on his leg.

So police found your client there at the, you call him complaining witness, at the complaining witness's house.

Yes.

They get there, complaining witness opens the door, says, hey, he's still here, he's there, and they go into the bedroom and they find my client on the floor in a pool of blood.

So the state's theory is that your client scaled a wall, broke into someone's house, grabbed one of their knives, the complaining witness then took the knife and then stabbed your client.

Right, so the state's version was that the complaining witness woke up and was able to, at the right time, was able to rush my client, disarm him, and they struggled and that's how he got stabbed.

Where does the theft come in? There's a theft, right?

There, this became an issue during trial, but items were recovered and put into evidence, property of the complaining witness, it was a watch and like a gold bracelet.

And the state's, you know, the state was saying that, oh, those items that were recovered were recovered from my client, but there was no evidence to show that, to support that.

So we, we argued about that, but they, their argument was that the items, the watch and the bracelet were what was stolen. That was the theft.

Okay. Where does the assault come in?

Well, the assault is the allegation that he had a knife and was threatening.

Oh, and they also, the complaining witness had a very small cut on his left arm that he said was because my client, while holding the knife, I guess my client was upset by the complaining witnesses not moving fast enough to give him property.

That he sort of poke stabbed him in the left arm. And that would have been the assault.

Okay. So client is bleeding on the floor, taken to the hospital and PW has a nick on their arm.

Yeah.

The client's charged with assault.

Yes.

Cool.

And, and the home invasion because he supposedly entered the home with the purpose of committing a robbery.

So what is your client looking at with these charges? What time are they facing?

Home invasion is 25 first-degree burglary is 20.

Armed robbery is 20.

Regular robbery is 15.

Assault first is 25.

Assault second is 10.

Reckless is five.

And the theft would have been over a hundred dollars would have been six months.

Um, but a lot of that would have merged.

Um, especially the rob, the armed robbery, a lot of the lower elements would have merged into the armed robbery.

So I think it would have been the, the home invasion, 25 and the armed robbery, 20, I think is what he was looking at.

How old your client?

He's at the time he's 28 years old.

Okay.

That's a long time for anyone for a 28 year old.

Yeah.

That's a long time.

First of all, how's your client doing when you meet him?

I mean, he, one, he's a, he's a small guy.

I mean, he weighed like maybe 130 pounds, 135 pounds, not very tall, thin.

Um, and when I meet him, he very quickly, he, he, he only speaks Spanish.

I speak Spanish.

I'm a native speaker and I introduced myself and I'm just like, Hey, these are the charges.

And as soon as I'm done sort of explaining what he's accused of, he goes, that's not what happened.

Like he is very clear.

Like that is not what happened.

And I'm like, okay, great.

This is your opportunity to tell me your version of events.

Go, go ahead.

So what did your client say happened then?

So my client's version is that he had been staying at that apartment complex.

So the complex is like, I want to say like four or five buildings that are all, they all look the same, but they're sort of in a circle around the parking lot.

And he's like, I've been staying with my brothers who live in that complex.

I get there after work.

I get there late around nine or 10 o'clock.

I think.

Um, I, I have dinner with my brothers, you know, I shower, we have drinks.

They go to bed once the booze runs out.

And I decided that I was going to see if I could buy more booze from a nearby liquor store, if I could find a liquor store.

And so he walks to where there's a, an intersection where he thinks there might be a place he can buy alcohol, but he sees that it's closed.

So he walks back.

And when he gets back to the apartment complex around midnight, he sees a person, a guy that he has seen around the part of the apartment complex before just like two or three times, but somebody that he recognized and, and says, you know, they start talking in Spanish.

And, you know, the guy sees my client smoking a black and mild.

He's like, Hey, can I have a cigarette?

My client says, I don't have any more, but he lets him have, uh, some puffs of the black and mild.

And while they're talking, uh, my client says, yeah, I was looking for alcohol, but I don't have any.

So I'm probably just going to go to bed.

So these two guys are, they are known to each other then.

Like they know of each other.

It's, it's like, if you cross paths with somebody at your apartment, maybe you said hi, but like, they're, they're not friends.

They're not like, they don't know each other.

They just know that they live in the area.

Okay.

Okay.

Um, but I mean, they both speak Spanish, so they're talking to each other and then the complaining witnesses, well, Hey, if you want drinks or whatever, I have drinks in my apartment, we can hang out.

Um, and if that's cool.

And my client, he's like, Oh yeah.

I mean, he's already buzzed.

He's like, why not?

And he says that at about 12, 15, 1230, they go up into a complaining witnesses apartment, you know, complaining witness invites him in opens the apartment door and they walk in.

Um, and he says that the complaining witness, you know, made drinks.

They had drinks, couple of shots, uh, that he like cut lines.

Uh, and then he invited him to his bedrooms.

Like, Hey, you want to hang out?

We can, you know, watch a movie.

Um, my client at this point is, you know, like, okay, yeah, sure.

He seems like he's just a friendly guy and they go into the guy's bedroom and they're watching the movie.

At some point, my client decides to have a, a black and another black and mild.

So he goes out onto the balcony and complaining witness goes with, and they hang out on the balcony.

Client goes back inside is like, Hey, I think I'm going to go home.

Complaining witnesses.

No, no, just hang out a little bit longer.

Just hang out.

We're having a good time.

Client says, fine.

They have another drink.

Um, and back in the bedroom and he's on the floor playing witnesses on his bed.

And at some point my client passes out or goes to bed, goes to sleep.

And the next thing, you know, at this point, my client, I mean, he's telling me this and he just, at this point, he starts to get very upset.

He doesn't want to look me in the eyes and I'm starting.

I think I know what he's about to say, um, based on everything that he said so far.

And, but I didn't, you know, prime him or say anything to him.

I just, I said, Hey, I get it.

It's difficult, whatever happened, but you got to tell me.

And, you know, he's, he eventually, he tells me that the next thing he remembers, he's being woken up by the complaining witness lying next to him and performing fellatio on him.

That, that his shorts had been pulled down and the guy was performing fellatio on him.

And so my client, you know, hits the guy, pushes him off and says, you know, well, the police are going to know about this is pulling up his shorts.

And that's when complaining witness kicks him or pushes him.

My client goes flying into the closet and he turns and he sees the complaining witness with a knife in his hand, not the same knife that he used to cut the lines, a different knife.

Uh, and they start fighting over the knife.

And, um, at some point my client is stabbed through the leg.

So your client is, is a victim.

Oh, in this case.

Absolutely.

Yeah, absolutely.

That's really tough.

What did you think?

Like, what were you feeling when he was telling you the story?

I was shocked.

It wasn't what I was expecting, but I had no reason not to believe him.

It is kind of like, you know, I don't know, you know, sometimes your clients will tell you stories and you're like, uh, I don't know, but that is so detailed and different than what happened.

Plus it's like, you know, not to use an evidentiary term, but it's a statement against self-interest, right?

You wouldn't really, you don't want to tell people stuff like, yeah, you got sexually assaulted, you know?

And, and I mean, and in the process of like telling his version of events, like, there was nothing that I had seen yet to suggest that that was not possible or probable.

And so, and again, his demeanor while he was telling me this, I really did believe it because you could tell how much he was struggling to have to talk about it.

Yeah.

That must've been really tough to hear from a client and for him to tell you really vulnerable.

Plus after you just meeting him in jail.

Yeah, exactly.

Like here, tell me about the worst day of your life.

Right.

That's kind of hard as a public defender, right?

We're not chosen and we have to like really build rapport really quickly.

And with people who don't know us and just like, Hey, you need to tell me this.

Right.

And, you know, thankfully I do speak Spanish because I don't know if I had been able to do that quickly, if I'd had to use interpreters.

Right.

Or he may not have been as forthcoming if there are two people in the room.

Exactly.

So you are meeting him in jail, talking about what happened.

Um, what's the next setting?

Do you guys do try to do a bond hearing or what's your next move?

I didn't even get into the case until the end of October.

So one of my colleagues did the bail review and the judge at the bail review, um, held him without bond, but they also noted, they were like, you know, there seems to be some, there seems to be a lot more going on in this case.

Just based on the statement of charges and how my client is the one with the life threatening injuries, which I thought was interesting that the, even the judges at that point were kind of like, I don't know, something seems off.

Um, but he's indicted September 15th and then the public defender enters the case, uh, October 30th.

So he was in while the case was pending the entire time.

Yeah.

Okay.

So we're setting it for trial.

What is your pre-trial investigation look like?

I guess we'll start with the discovery.

So I get the discovery.

It's a couple of police officers reports, the detective, the, the, the lead detectives sort of report, the radio calls, the, the 911 sort of logs and a couple of pictures.

And that's about it.

But I don't recall exactly when, but at one point, one of my colleagues and I, we went to the apartment complex to see sort of the layout of the apartments because the, the state's theory, the detective's theory was that there was, um, based on how the exterior of the apartment building was, was constructed.

It had like a concrete lattice work that theoretically you could put somebody's feet and hands and they could scale the exterior.

That was their theory.

Yeah.

Cause scaling an apartment complex sounds crazy to me to the third floor.

Yeah.

Yeah.

Yeah.

It just sounds, it's like, why wouldn't you like home invade the first floor?

I'm not going to do anyone on the second floor.

Yeah.

I'm going to home invade the third floor.

Yeah.

All the way to the left.

Um, and that's what my colleague and I saw, like we, we saw the exterior, like the, the, the ground level, like there's a lot of stuff just laying out there.

And then on the second floor, it's the same thing.

There's just a lot of stuff laying out there.

And then the third floor, we were looking up, you can't see anything up there.

So if that's your target, it seems kind of odd.

And, and the pictures in the discovery, it was the same.

There was just a lot of stuff in the back and it just seems an odd choice for somebody to scale all the way to the top.

Um, and so, you know, we looked at it and the, the gaps in the, in the concrete were not very big.

Um, it just seems not an ideal way to climb the exterior.

Not ideal.

Not ideal.

And not how I would do it.

Yeah.

And, uh, and then we went and we actually talked to my client's family members and, and we're like, Hey, do you remember this day?

And they were like, yeah, no, he was here.

He got off work and we didn't tell them what he said.

We just like, Hey, what time did he get here?

And their version of events lined up with, with the clients.

And they were like, yeah.

Were they willing to testify for you?

No, no, no.

They, they had a lot of obligations and they were, they were not gonna, they weren't going to testify, but everything they said confirmed what our client said.

And, and, and that was good enough for me.

And that was about as much like investigation that we did.

Everything else was just going through the body worn camera and reading the reports.

So that discovery you get could corroborate either story.

So yes and no.

So my client, I don't remember exactly when, but he, he told me that he's the one that called 9-1-1.

And you know, the, the, the CW is saying, no, I'm the one that called 9-1-1.

Well, in the radio logs for 9-1-1, I, there was a note that said that it was unclear whether or not the suspect was still on the scene due to a language barrier.

And, you know, if the complaining witness speaks English and he said everything in English, like, why would there be a language barrier?

Isn't it more likely that the, my client who only speaks Spanish is the one with the language barrier.

Um, so I saw that and I thought, you know what, I think that's, I think that corroborates my client's version, at least him being the one calling 9-1-1.

In the bodyboard camera, you can see the apartment, the inside of the apartment, nothing is out of place.

Hmm.

And in the video of the complaining, like when you see the bedroom, the bedroom doesn't look like it's been rummaged through or anything's missing.

The only thing that looks out of place is where my client was found bloodied.

So I just, I didn't believe that he had been rummaging around.

It's not giving third floor break in.

No, no, no, not at all.

So just to recap, you did a site visit and you saw that it would be difficult to get up to the third floor on this concrete lattice.

And the body war showed that the house or apartment likely was not rummaged through.

And you also got some type of evidence that confirmed or corroborated that your client calling 9-1-1.

Yeah.

And also my client at some point, while he's still in the hospital, he is visited by the lead detective and the detectives like, Hey, like we're here investigating.

Do you want to talk to us?

And my client tells the detective, yeah, I want to talk to you because you need to know that something weird happened to me that night.

Um, but the detective doesn't speak Spanish, so they're using language line and the detective, you know, advises my client like, Hey, like if you're going to talk to me, you need to be advised that you have the right to a lawyer.

A lawyer, a lawyer can be helpful.

And so my client in Spanish is, well, if you're telling me that I need a lawyer, then I want a lawyer.

And so the detective hears that and says, Oh, he said he wanted a lawyer after I asked him if he wanted to talk to me, you know, they have a phrase.

They framed it as though my client wanted to hide something, which is just that my client is unsophisticated and is saying, Well, if you say I need a lawyer, then I guess I need a lawyer.

Right. Yeah. And both are true. He needs a lawyer and he has something to say to the detective because he's been charged and he was sexually assaulted.

Yeah. But I think also technically like the fact that your client said he wanted a lawyer and they stopped questioning him is the right thing to do because you don't want, you know, the opposite of that situation.

Right. And sucks in your case, but is what you want cops to do.

I was gonna say the police officers, my client still volunteered the that complaining witness had invited him to drinks.

Yeah. And the detective called the complaining witness shortly after that and asked him one question basically like, Hey, did you invite him in for drinks?

And the complaining witness said no. And that was it. Case closed.

And that's just it. Yeah. Because where the client is also a victim here, it's a lot easier for the cops to say, Oh, he he asked for a lawyer.

That's that we don't have to do anything further to investigate why this person has life threatening injuries and the complaining witness does not.

Their theory was that the complaining witness got the best of my client. That was it.

This 911 log, you just have the log, but you don't have the call. No. And we subpoenaed the Annapolis police, Annapolis fire, like we issued the subpoenas and they just couldn't find these calls.

Like, is that normal? Like, it's not normal. This should be an exculpatory call if the complaining witness speaks English and client does not. And there's a language barrier on the call. Yeah. And suddenly they don't have the call. That's unreal. Yeah.

No, I, again, we subpoenaed and we called and we never got it. And even like months after the trial was over, I got a discovery disclosure for the 911.

And it was still just the same thing I'd already gotten just the radio logs. Do you usually get the calls?

Yeah. Normally we get more calls than we ever want.

And so in every other case, you have every call ever. And in this case, you only want the call. No call. No call. Yeah, that is crazy.

Was there anything in discovery that was notable to you?

So one of the officers went to the neighbor because the neighbor to the complaining witnesses apartment had ring cameras.

And so their body worn camera showed the ring camera footage at the at about 215, which is when this supposedly happened or when my client supposedly broke in.

And they only looked at 215 to about 245. And in both. So they had a ring camera for the front and the back and both cameras picked up the EMTs arriving, the police on the ground floor looking around.

It captured all that. But they only looked at the 215 timeframe. They did not go back before two o'clock in the morning. And my client, you know, his version was that like, no, I was there invited in at 1230.

So you think it would have shown him go. It was like a neighbor that was a cross. So it was shown him going into the apartment at 1230. Yes.

Did you try to get the rest of that video from the neighbor?

No. By the time we were there, it was erased.

You got it in October, right?

Yeah.

Yeah, there's nothing like a ring camera cross examination or like, was this a residential area? So that house would have had a ring camera. So that house would have had a ring camera.

Yeah, we'll get to that later.

Oh, ring cameras.

All right. And that body camera, does it show the officers showing up to the scene?

Oh yeah, no, the body camera showed the officers arriving, going into the apartment, finding my client, talking to the CW, getting his statements, all that. Like I, and I knew by the time of trial, I had transcribed and I had memorized every single second of all their body worn camera.

Mm-hmm. And the CW's story is so specific and client story is so specific and they are completely different stories. What's CW's demeanor like on the body camera? Does he look like he's just like, like live, like cooking up a like, and then this happened, and then this happened.

Yeah.

And someone took my watch and he throws the watch out the window.

And they scaled the wall.

Yeah.

Oh.

This guy was like Superman. He came in.

I didn't see my gold bracelet.

This guy would be Spider-Man.

No, it is Spider-Man.

My office, we refer to this case as Spider-Man case.

So CW, I mean, he, he definitely seemed like shocked, upset, like he was speaking quickly and you're like, oh, I don't know who this guy is. I've never seen him before in my life.

Like he was sweating and upset and everything.

But I think that's because he had been caught in the middle of a sex crime and-

That'll make you sweat.

Yeah. And then you stab someone.

Yeah.

Exactly. Like they were fighting. They, they were definitely fighting. And so, you know, calling 911, he's probably freaking out. And again, he speaks English. So he's telling all the officers this while my client is, my client is out of it. He, he has lost so much blood. He, I mean, the video of him, they're tourniqueting him and everything. He, he's just not making any sense. He's just begging them to save him.

Hmm. That's hard to watch. Yeah. Yeah. So you get the discovery, you review it, you, you know, go over it with a fine tooth comb. Was there any pretrial motions that you had in this case?

No pretrial motions.

No pretrial motions.

Did anything happen pretrial that was notable to you?

I mean, I told the state at the status conference in November, I was like, Hey, like you should probably ask your complaining witness a few questions about what happened that night. Because the version of that I get from my client is very different from their version, the police's version. And the state's attorney kind of like, Oh, kind of joking. Like what? Let me guess. He has like a shower in the corner of the bedroom, you know, like a drain. Just kind of like, yeah, whatever about it. There's no, they never believed my client.

They, they, they, they, they heard the complaining witnesses version of events. And they're like, this is our version. There's no other way it could have happened. He, here he is. He's in the apartment. He's bloody. It had to happen this way.

And then 10 days before trial, I, I told the state's attorney, I was like, look, I'm telling you, my client is the victim of a sexual assault. Like you need to talk to your CW. This is what happened. And my, the state's attorney was like, why would the CW lie? He, he's, he's a car salesman. He's just trying to make his way through the world.

You know, what? Yeah. That sentence. Yeah. Like listen to yourself, but also like, what was your, like, what was, what were you trying to get out of that? A dismissal or a deal?

Trying to get some kind of, cause the offer I think was to armed robbery and like years of prison, even though my client had no priors. His only prior was like for traffic, you know?

Did you, did you ever seriously consider that offer? Did your client, did you guys have a conversation about it?

I mean, I conveyed the offer. I was like, look, this is what they're offering you. And you're like, I have an obligation to tell you what the offer is. I'm not saying you need to take it, but you know, my client, he said, I did not do any of the things that they're saying I did. Why would I plead guilty to this? And I was like, you are absolutely right. I believe you.

Like, I mean, this is one of those rare instances where like, I, a thousand percent believe that my client was innocent of everything. Not just not guilty. Yeah. Exactly. I was like, like, we have to have a trial. There's no way there's. Yeah.

Of every charge, not the theft, not the assault, not the every single charge.

Exactly.

Yeah. That's how you convey an offer you don't want your client to take. Listen, I have an ethical obligation to tell you this. I'm not, I'm not suggesting you take it.

I just have to tell you ethically. I'm required to tell you. Don't do it.

I'm just saying what they're saying.

And so shortly after I told the state, you know, like, look, this is what my client said happened. And wouldn't you know, just like a day or two later, they tell me, oh, here's some, you know, late new disclosure.

This is what the complaining witness says happened. That, you know, he got off work. He didn't go home. He went to play poker with his friends from, you know, childhood and he didn't get home until 11 o'clock.

And he went straight to bed and never saw my client before that.

That's a different story, right?

Than the original.

Yeah, because so the story that he gave on the night of, he didn't mention anything about that.

He just said, I was sleeping.

The guy came in.

But when the detective asked him a few days after talking to my client, like, what did you do that night?

The CW said, no, no, no.

I got off work around seven.

I went home and was there by nine.

And I had dinner at 10.

I saw my parents leave to go to work.

And then I went to bed at 11.

So he, his whole, he never mentioned, you know, playing poker with the boys until shortly before the trial.

After I told the state's attorney what my client had told him.

Then he's like, I need a better story.

I need to, I need to fix this up.

I need a better story.

And this extra discovery disclosure of a different statement from the CW.

What form does this take?

Is it, were you expecting it?

Is it, like, supplemental at the last second?

Like, what is it?

It was an email.

Just an email, like, hey, RCW, based on what you told us, we asked him and this is what he said.

That is so shoddy.

I hope this finds you well.

Yeah.

Here's some Brady.

BTW, he was playing poker.

So this guy lives with his parents in this apartment?

Yes.

That somehow makes it worse.

Like, what he did.

I don't know why.

It just makes it worse.

Can you clarify, were the parents alleged to have been home?

No.

So the, the States, it's just the complaining witness in the apartment.

The two parents and his 15-year-old brother left to go to work.

They do, like, cleaning overnight and stuff like that.

So they weren't there.

So he can prey on people while they're at work.

That was my theory.

That was my theory.

That's what it sounds like.

So no pre-trial motions.

So now we're going to trial?

That's it.

How does your client feel about going to trial?

So shortly before the trial, I went with him to sort of go over his testimony.

And, and again, I would, I just asked him, like, tell me what happened, you know?

And he went into even more detail, like, and there was no difference in his versions.

Like, he, he answered all my questions.

He could draw a map of the entire apartment complex.

He knew when he went to where, everything.

And, you know, I told him, like, you know, understand, you're going to have to explain

this to, you know, 12 or more strangers, you know, this is going to be difficult for you.

But he, he said, he's like, I will do what I must, you know, just like very, he understood

what he needed to do.

And he was like, I'm going to testify.

I didn't do anything wrong.

And I, I think I prepared him a little too well, because when, you know, you're always

like, just answer the question asked, I'm going to ask you, you know, you just say, and

then I might ask you like, and after that, what did you do?

Or what did you see?

He only answered the question asked, like, what did you do?

He's like, I crossed the street.

That's good though.

We like that.

That's better than the alternative.

Oh yeah.

No, he did not go off.

What, so how did you prepare him for cross then?

I told him that, look, the state is going to ask you questions that are designed to try

to mess you up, trick you, confuse you, get you mad.

Like they're going to say a bunch of stuff and they're going to ask you questions.

You are only required to answer yes or no.

I mean, if you know the answer, just answer the question asked.

Like you don't have to, you know, explain everything.

Like my job is if there's some sort of misunderstanding about what did or didn't happen, my job is

going to be to ask you the questions after they're done.

But again, he was just like, I have no reason to not answer the questions because I know

what happened.

So you were feeling comfortable having your client testify then?

I absolutely, I had no concerns.

I guess he kind of has to, if that's your, if your theory is something that only he's saying.

Yeah.

Yeah.

That's what's so hard about this case is that what they're saying happened, like could

track with the discovery.

And then what, you know, happened is something that's only going to come out through your client.

And it would make total sense when your client said it, but there's nothing in their discovery

to suggest that this is what clients about to say happen on the stand.

Right.

Right.

Like he didn't, he didn't even make the statement to police.

I almost feel for prosecutors in those situations because like, like usually our clients don't

testify, usually the testimony, if it, if it happens is more nuanced or something more specific,

but to have a client get on the stand and say something completely different happened that

also tracks with the discovery.

If I'm the state, I'm like, are you sure?

Now they know how we feel.

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Okay, now back to the show.

So yeah, we're going into trial.

So preparing for voir dire, what kind of, who are you looking for on your jury?

So I try to get as much of a cross-section diverse jury as you can get in Anne Arundel County.

Yeah, what's the county like?

It's probably like 70% white.

I believe it's like 15% black population.

And I guess some smaller percentages is Hispanic, but it's mostly white.

I mean, Anne Arundel is, it's just south of Baltimore City.

So the north part of the county is still very dense, you know, high population, more urban

than the south of the county, which is very rural.

I mean, it's farmland south of Anne Arundel County.

So, I mean, you get a lot of that.

But we also have, like, the Naval Academy.

We have Fort Meade, NSA.

So we have a lot of that and, you know, a lot of attorneys.

So it's, it's...

Sounds like a mix.

It is a mix.

And, you know, I think we're able to get very good juries a lot of the time.

But, you know, sometimes you don't.

How had your voir dire go?

The way our voir dire is done is the judges ask it.

We give them proposed voir dire.

And our courthouse has about 30, it's like 30 questions that they ask for almost all of

the cases that cover all the constitutional issues.

Like, do you know anybody?

You know, the right room remains silent.

All that stuff.

And I usually use those for anything that doesn't have anything very, you know, unique about

the case.

So you don't ask, you don't ask any questions, but you can propose questions?

Yeah.

We actually are currently piloting a program where the attorneys lead the voir dire.

Did the judge use any of your questions?

Yeah.

So I had three questions that I wanted the judge to ask, which was, is there anybody in

the jury who believes that or who does not believe that men can be the victims of sexual

assault?

Are there any jurors that will be uncomfortable discussing issues of a sexual nature?

And are there any jurors who will be uncomfortable discussing issues of a sexual nature, men with

men?

Right.

And it was funny because the judge came out and, you know, said, like, I see the usual

questions that we always see.

And I got to say, Mr. Gonzalez, I was not expecting three of your questions.

Yeah.

Because they're looking at the charges and they're like, wait, what?

Where are we?

I know.

I was curious if I had the right case.

And I had to say, yes.

Yeah.

And the prosecutor's like, what?

The prosecutor's like, oh, no.

Yeah.

And I told the judge, I was like, yes, I want those questions.

And, you know, I feel very fortunate that we got the judge that we did.

We didn't know which judge we were going to get until the day before.

Wait.

So, hold on.

Why don't you know which judge you're going to get until the day before?

Because that's just how we do things here.

So, you just have it set for trial and then they tell you, okay, you're going to this room.

Yeah.

So, you know, I know the trial date is going to be on a Tuesday, Monday afternoon after

three o'clock.

We go on the court website and try to see who the judge is going to be.

Whoa.

That gives me anxiety.

So, you can't counsel on trial tax.

Of course you can't counsel on, like, how the judge is going to be with evidentiary rulings.

You can't plan any of that.

What if you want to do a bench?

It's the same with the bench?

Yeah.

You just kind of have to wait until...

Well, how do you know if you want to do a bench or not?

You can't...

You got to prepare for both.

I'm sweating.

I'm sweating out.

Get me out of this Zoom room.

Whoa.

And Anne Arundel, we, at the time, I think we had 12 judges.

So, you could have gotten anybody.

Whoa.

That blows my mind.

You know, it's wild that, like, every time we talk to somebody from a different jurisdiction

or a different state, there's, like, a new wild thing.

It's so interesting.

We've only practiced in Ohio.

Yeah.

And so, that's, like, very normal to us.

And so, when we, like, hear other, we're like, whoa.

Like, we talked to some woman in Texas.

Texas always comes through.

The juries decide sentencing, too.

I heard that episode.

Yeah.

That blew my mind.

Right.

So, did you have any moments in voir dire that were...

That stuck out to you?

Oh, I also asked that if anybody in the panel would speak Spanish because I wanted to make

sure that if they did speak Spanish, that they would only rely on the interpreter's interpretation

of what was said.

Interesting.

Because, I mean, I grew up in South America, and so, and I traveled other countries that speak

Spanish, and, like, it is not all the same.

There is a diversity of the language, and so I wanted to make sure that there wouldn't

be any misunderstanding about what was said by the interpreter.

Where did you grow up, Felipe?

I grew up in Chile.

Cool.

So, yeah, voir dire, no issues, and like I said, the judge, I was glad that we got this

judge because this particular judge, they were the sex crimes prosecutor, and I figured

they would be much more willing to understand or believe my client or what I was positing

was what happened, that they wouldn't just dismiss it.

Right.

So they'd be more open to your, to overruling objections from the state if you were trying

to get into something, or maybe better in sentencing if there was some type of, if there wasn't

a conviction.

Right.

I just figured that they would, they wouldn't discard my client's version, that they would

take it seriously in a way that the state had not up to this point.

Yeah.

The judge, I think for that reason too, will be more open-minded as to the question of

relevance.

Exactly.

Yeah.

I do think it's pretty despicable that the state dismissed your, your client's version

of the story.

Most prosecutors that I know at least are, you know, they want, they feel like they're,

the victims are their clients.

And, you know, obviously in this case, it just shows that there's this one track mind where

it's like a defendant is a defendant and a victim is a victim.

And that there's no two ways about it.

Correct.

This office does a lot of that.

They're always talking about how they need to represent victims and everything.

And the entire time I'm thinking you have a victim and you're prosecuting them.

Yes.

So did you, did you use any strikes?

It was a 10 and five strikes case.

What does that mean?

So we had, because the maximum penalty is 25 years, we are, the defense gets 10 strikes.

The state gets five strikes.

Whoa.

And yeah, normally it's four and four.

So for anything under 20 years, I think.

Yeah.

Anything under 20 years, it's four and four.

Anything over 20 is 10 and five.

And anything where the penalty is up to life, it's 20 and 10.

Wow.

That is so, it blows my mind because like, that's just a procedural technicality that we

connect to justice.

We're like, oh, this client has more on the line.

So it's really important that they truly feel represented by a jury of their peers.

And then you go to a different jurisdiction.

That's not a thing at all.

And it's just like, yeah, we're like, it happens this way because it's justice.

It's just arbitrary.

And then you like cross the state line and we're like, no, we do it this way because it's

just like, it's so arbitrary.

But that's fascinating that the number of strikes correlates to the maximum penalty.

Yeah.

And that's by law, like an actual statute.

In the end, did you like your jury?

I did.

I did.

I, they, I mean, no spoiler alert.

I mean, they went our way.

Um, yeah, thank God, I was on the edge of my seat.

I really was, but, uh, I, I, I, I think we had a good jury.

Was the jury receptive to the conversation on, can men be sexually assaulted?

Yes.

Yes, they were.

Um, they, they didn't even stand up.

Like there was nobody in the jury pool that said that that would bother them or that they

would have a problem doing it.

Like, they were very just open to that idea and yeah.

Good.

All right.

Then let's talk about openings.

Um, tell us about the state's opening first.

The state's opening was pretty short and standard.

Just, you know, basically said, okay, he's selling cars.

He goes to play poker with his friends, goes home, goes to bed and, you know, client tried

to rob him.

And it's crazy that they're going with the poker thing.

Like, did they not watch the evidence?

I, I, I didn't have a problem.

I was like, look, if they want to, if they really want to go with this, they want to do

it.

That's fine with me because they're just gonna, they're going to get impeached and stuff

like that.

So I was fine with it.

All right.

Tell us about your opening.

Mine was short too.

I, I, um, basically was like, look, ladies and gentlemen, the state wants you to believe

this version of events.

That is not what happened.

This is what happened.

And I gave my client's version of events and didn't, you know, mince words at all.

I said, my client met the guy, he was invited in, they had drinks, he passes out, he wakes

up and the guy's performing fellatio on him, which is why they had a fight and everything.

And I just said it.

Cause I mean, what, what benefit would it be to not tell the jury that that's what's coming?

Yeah.

No, that's a good opening.

What did they react at all?

I mean, that is, that's as a juror, you're like, whoa, wait.

Yeah.

You just heard two completely different stories in opening.

No wonder what they were thinking during the state's opening.

They're like, why did we talk about sexual assault on a man?

They're like, wait, what?

The jury's also like, am I in the wrong room?

Why did it, why was it so weird in the beginning?

And now we're talking about a robbery?

And so I, I told him, I was like, look, you're, you're going to hear the evidence.

So just do, just do me a favor, pay attention, keep an open mind and just use your critical

thinking, you know, listen to what you do here and see, but also think about what you're

not seeing and hearing.

And at the end of this, like, you're going to find my client not guilty.

Like, there's no way you can find them guilty, basically.

Um, and that was it.

All right.

So state's first witness, who do they call?

They call the complaining witness.

Um, he, you know, takes the stand and he just, again, gives his version of, you know, he, he

works, he's a car salesman in the local Annapolis area.

He got off work around seven.

He goes to play poker with his friends that he's known since childhood.

Um, like 10 minutes away.

They play poker to like 11 ish.

He goes home, gets home and has some dinner and he goes to bed.

And the next thing he does is wake up when he says that he sees the door to his bedroom

open.

And it's my client walking in with a knife in his hand.

Uh, and on his hand, he has a sock and is holding the knife with a sock hand.

Uh, and he climbed up the, he scaled the wall with a knife with a sock on his hand with

a knife.

No.

So the state's version is that my client who is not only capable of climbing these walls

and is, it must be a dedicated, you know, cat burglar, which is a word, which is a term

that used to describe my client, a cat burglar.

Um, yeah.

Have you heard of that?

No.

Is that mean like you're a cat and a burglar?

Does that mean you steal cats?

I think it's like an old night.

I don't understand which one the adjective goes to.

Is it an acronym?

It's like, no, it's like an old timey way of describing people who like break in by climbing

and stuff like that.

Oh, okay.

Exclusively on third floors.

Yeah.

And, um, you know, but he's such a dedicated like climber and robber, but he needed to go

into complaining witnesses kitchen to grab the knife that he was going to use for the robbery.

So that kind of doesn't make a lot of sense because if you, if you're going to rob somebody,

wouldn't you bring your own weapon rather than depend on whatever materials?

Yeah.

There's no BYO.

Hope they have a gun laying right by the door.

Hopefully this house I'm breaking into has weapons inside.

And, um, and the state at some point, I mean, at some point the state was like, you know,

this guy, he's in, you know, all black, you know, he's, he's wearing the typical thief,

burglar getup, all black.

But my clients wearing like shorts, black shorts, a white bucket hat and the black shirt that

he's wearing has this like very large white, like drawing or design, which kind of isn't

what you would expect.

Like it, no, it just didn't make any sense.

Yeah.

It wasn't like the all black.

So, um, can you imagine someone breaking into your house in a white bucket?

Like, are you lost?

This guy's a cat burglar.

So, so on direct, it was just basically what the state had been saying the whole time that

that anything that different, he said that my client, you know, sock in hand with the knife,

he pokes him and then he somehow with the other hand is able to unclasp the bracelet that

is on the complaining witnesses wrist.

And it's the kind of one that you need two hands to like hold and open.

He's like, no, he did it one handed.

He took it from me.

And then he started rummaging.

This guy's a cat.

Yeah.

And he started rummaging through my bedroom, uh, looking for things.

And, and it wasn't until my client supposedly whipped out his cell phone to take a picture

of the complaining witness of the complaining witnesses.

Like, I'm going to rush him and take the knife away.

And fight him and stab him in the leg.

That story makes a lot of sense.

That makes a lot of sense.

CW is saying that client in the midst of all this tried to take a photo of him?

Yes.

That he took out a cell phone and stood over trying to take a picture of the complaining

witness.

Like a selfie?

This guy's never watched like one cop show in his whole life.

He does not know what a home invasion robbery would look like.

Like he was taking pictures.

Is that right?

And he unclasped my bracelet with one hand.

That's the thing, right guys?

That's what people do.

It's just, a lot of stuff is happening that doesn't make a lot of sense.

So let's talk about your cross then.

It was mostly just, okay, talk to us about this poker night that you did.

And so he's like, yeah, I did it with this one friend of mine.

That's where they did it.

And I was like, who else did you do it?

He couldn't name a single person.

I was like, these are your friends from childhood and you can't name them from your poker night?

And he's like, he couldn't just make it up like he was making everything.

Well, yeah.

He could have been like, Sharon was there.

Yeah.

And Felipe Gonzalez.

Oh, wait, that's you.

And judge so-and-so was there.

Wait.

And so on redirect, they were able to like refresh his recollection with like a text chain or something like that.

And he said like, oh, one of the people, one of the people had his very same name.

I was like, I'm sorry, you can't even-

We had clients' name?

No, the CW's name.

I mean, sorry, PW.

I was like, I'm sorry.

Oh, yeah.

One of your friends from childhood has your name and you can't even remember that name?

Like, come on, man.

So, and he, you know, said like, yeah, and then we left.

I left around 11 after we played poker.

It was, you know, and I go home and I go to sleep, you know, and I was like, okay, well, do you remember having a conversation with a detective?

And he was like, yeah, it was, and it was a few days after.

He's like, yeah.

But he eventually had to like admit in front of the jury that like he had never mentioned the poker night prior to like a week before trial.

Actually, he, what he had told the detectives was that he got home at nine, saw his parents, that they left at 10 and he had dinner.

He changed that entire like evening between when he got off work and when 11 o'clock, he changed it completely.

Did he give any type of explanation?

Like, well, I lied to the cops initially because yada yada, I didn't want my parents to be mad or something.

No, he didn't.

Just, he's like, yeah, I said that.

And I was like, okay, you know, great.

So nothing further.

What else?

I, um, I asked him, you know, isn't this what actually happened?

And just, you know, asking him questions about my client's version of events.

And I was like, you performed fellatio on my client while he was asleep without his consent.

And he goes, what is that?

And I was like, fellatio.

He was like, I don't know what that means.

And I, and I was like, did you give him a blowjob?

And he was like, oh, no, I would never.

It's like, okay, dude.

I'm always like, I don't know.

I'm always so torn about whether or not to bring up like the alternate story to the prosecuting witnesses or the complaining witnesses.

Like, you know, they're going to say no, you know what I mean?

So I don't even know if it's worth it in cross, but it sounds like you've got to give him a chance to react.

Yeah.

But I, based on how he was like answering the questions, I don't think the jury really liked him.

I don't think they found him all that credible.

So, um.

Well, he's not.

No.

That's probably why.

But during, during complaining witnesses testimony, they played one of the officers body on camera.

So you could see like a layout of the entire apartment.

And during that, they got to the part where the officer enters the bedroom where my client is dying on the ground.

And my client, that was the first time he had actually seen himself from that night because he had blacked out prior to that.

And he immediately started breaking down and crying.

And we had to take like a 30 minute recess.

After, after he had a chance to, to like catch himself and, and, and calm down, like I explained, like we're going to, there is a possibility that you are going to see this again.

Or you might see other stuff and whatever happens, man, just like try to keep it together.

Don't look if you don't need to like, like just like, I, I got this, but like, um.

I feel for your client.

That's, that's really traumatizing.

Oh yeah.

All of it.

Yeah.

Yeah.

And there, there's kind of no more powerful image for the jury to see painful as it is of your client seeing himself in that moment.

Yeah.

I was a little worried about it, but in the end, I don't think it, it affected the jury all that much.

Yeah.

And I mean, oh, so the, the, the complaining witness was talking about how like, oh, I would never have alcohol.

You know, I don't drink.

My parents would disapprove of it.

But in the pictures from the body worn camera, you could see liquor, uh, an alcohol bottle in his bedroom.

Yeah.

Like this guy, he's like, oh, he scaled the wall with it and put it there before he took my stuff.

And, and, and so.

This guy's not thinking anything through.

No.

Be, be a better liar.

The state did some redirect, but you know, oh, your parents, um, they don't approve of you drinking alcohol.

Like the redirect, I actually was like, this guy's kind of asking questions that are good for me.

Cause it's showing why the complaining witness might come up with a narrative that is the one that we have.

Yeah.

Yeah.

Like my parents are going to disapprove of me, like sexually assaulting people and drinking in their house.

So I gotta make some stuff.

Yeah.

Exactly.

Like your mom wouldn't want you to rape anyone, right?

I don't know.

That's why I made this whole thing up.

Um, who's your next witness then?

Or not yours.

Who's the state?

Who's the state's next witness?

The state's next witness is one of the friends, the, of the complaining witness.

It's the one where they played the poker game.

Um, oh, so he got, he got his friend to commit perjury.

Yeah.

He got, he got a friend to go up there and say, yeah, my friend, it was me and a bunch of other

guys.

We played poker and he left at 11 and yeah.

Would he, did he remember this guy's name?

Yeah.

Right after.

Oh yeah.

They were there.

McKay, would you commit perjury for me?

Would you, if I, what, if I asked you to be a witness?

Yes.

Okay.

But we have to first decide what names we're naming of the other people.

Okay.

Yeah.

Yeah.

Of course they'd be like, uh, I don't remember who was there.

Uh, Dallas Ann.

I don't know.

I don't know what did she say.

Can I get a read back of that transcript?

Anyway.

Um, so, so this person's, you know, just completely perjuring themselves.

The guy testified for five minutes.

What was your cross?

Just, you know, what time did the guy leave?

And the, the friend did do him a solid cause he said, oh, it was sometime between 10 and 11.

You know, trying to give him as like broad a window as possible.

Yeah.

And I was like, wow, good for you.

So yeah.

10 at the earliest, 11 at the latest, and it's a 15 minute drive.

Okay.

Thanks.

But whatever.

So yeah, he was, he was, he was up and down five minutes tops.

I mean, what do you really do with that?

Like there's, it's, if it's all a lie.

Exactly.

Not much.

Yeah.

I wasn't sweating it.

All right.

So who's, who do they put up next then?

The next, and the last witness for the state was their lead detective.

All right.

The big guns.

The big guns.

And this, this detective had been sitting in the courtroom for the entirety of the trial.

Um, you know, but they didn't call a single one of the first responding officers.

They didn't call a single one of the EMTs.

They didn't call anybody else.

Um, yeah, that's kind of crazy.

Like that.

They only have three people for an, a home invasion, armed robbery, you know, a charge

that carries charges that carry more than, would you say like maybe 45 years total?

I mean, they're on, they're only putting three people on that kind of blows my mind.

And the detective, the detective comes in and I've known of this.

The detective from when I started as a public defender, a case that I had and in the body

worn camera, you can see him like harassing my client in like an alley in Annapolis while

another cop prevents the friends from like trying to like help their friend or whatever.

Um, and ever since then, I've had a, had a problem with this particular officer, but he really

thinks highly of himself.

He, he's wearing a turtleneck and chain with like a suit.

Wait.

Yeah.

Yes.

What?

That is the outfit of someone who really thinks highly of themselves in court, turtleneck and

chain.

I think my favorite part of this podcast is when people describe the outfit of the lead

detective.

It's always something crazy.

It's 12 out of 10 every time.

You know, turtleneck, chain, and he's got like a jacket.

I can't remember if it's like, like a suit jacket or a blazer, but it's, it's one of those.

And he's wearing like the tightest golf pants and he, he walks up, takes the stand.

Is this his big moment or something?

Yeah.

And, and his demeanor is, you know, just too cool for school.

You know, he is, you know, just like a slow cadence and he's got like a gravelly voice.

And so they're like, what is your job as, you know, lead detective?

He's like, to pick up the ball and run with it.

Oh God.

So cringe.

Like just be normal.

That was an actual thing he said.

You did a really good impression there.

That was really good.

We're going to do it for the whole testimony.

You took me.

I got the, yeah, I got the full picture.

I was transported to the courtroom with that one.

Then what did they ask you?

And so the, the state's just asking like, you know, what is, you know, you're the lead

detective.

What did you do?

Like, tell us about your investigation.

He's like, oh, I got the call.

I went to the crime scene.

I looked at the apartment.

He's like, yeah, looks like an apartment.

He went into the bedroom.

He's like, yeah, looks like a lot of blood in the apartment.

You know, he went outside, looked at the back and just sort of looked at the concrete lattice.

And it's like, yeah, somebody could maybe scale that, you know, in theory.

And that was it.

Like, it was, I swear to you, it was the most bare bones.

My mind is blood.

This, I feel like a kindergartner could do the same type of investigation.

At some point.

There's a wall.

There's some blood.

This is an apartment.

There's a crime.

Exactly.

Crime has been committed.

Dust off hands.

Signs happening.

My job is done here.

I've carried this ball.

I've picked up this ball and I've, and I've run, whatever the quote was.

They were like, and what'd you do next?

He's like, I can't talk about that.

Yeah, exactly.

Well, you're on the stand.

At some point, the state's attorney tried to get the detective to testify about things

that other officers saw and, or did.

And I objected.

And like, we go up to the judge and the judge is like, yeah, it sounds like you're trying

to introduce a lot of hearsay.

And he's like, well, he's the case detective.

He could do that.

Wait, was it this prosecutor's first day?

No, no, no.

I've had this issue with a lot of other prosecutors where

they'll, this theory is that if one officer sees it, like that knowledge is passed on to

like all the other cops involved.

It's like imputed.

They act like course of investigation is a hearsay objection.

Yeah.

It's like, and many judges are like, oh, okay, course of investigation.

But what else is a hearsay exception is if you're wearing a gold chain, you can say

whatever you mean.

Yeah.

And the, the judge did not let the detective do that.

She, she was like, no, you're not going to do that.

For her.

Yeah.

Yeah.

Um, and the reason why they were trying to do that is because one of the officers recovered

items, right.

That were in the bedroom.

Um, you know, the, the complaining witnesses, watch and bracelet and the client and the complaining

witness.

What was like, but the complaining witnesses, watch and bracelet was in his own bedroom.

Yeah.

So, so they pull out as state's exhibit, you know, in an evidence bag is the watch and

the bracelet.

Like, Hey, do you recognize these?

And he's like, yeah, that's my watch.

That's my bracelet.

You know?

And they're like, okay, great.

It's an, it's an evidence.

But then they were trying to get the detective to say that those items were recovered from

my client without any sort of explanation or testimony about how those items were recovered.

So we don't know if it, like they were trying to say he got it from, from the defendant.

He got it from the defendant.

It was like, you don't know that they, there were so many items in the bedroom.

Like, you don't know if the cop just like picked it up because it was close to my client.

If it was near my client, it was somewhere else.

We just know that it was recovered, but we don't know how.

Right.

And, uh, that's what they were trying to get the detective to say.

They wanted him to say like, no, they got it from his person, but they couldn't.

And that's exactly how he would have said it.

Oh yeah.

Yeah.

Um, and so what was your cross like of this detective?

So I basically asked him, I was like, you, you, you knew about the ring camera footage.

And he's like, yeah.

And you saw the, and you've been in court.

So you saw the, the, the, the body worn camera that shows that they only went to like

two 15 in the morning.

He's like, yeah.

Did you bother to look at, to go back and try to see more footage?

And he was like, oh, I went back.

I left the card and they never got back to me.

I was like, okay.

All right.

Uh, he's like, if it didn't happen in the moment, I didn't do it.

Yeah.

I'm busy.

Um, I left a card.

I left the card and nobody got back to me.

I'm like, okay, thanks.

I'm going to start saying that more.

I left a card.

They never got back to me.

He, uh, I asked him, like, did you measure the, like the gaps in the lattice work?

Did you put shoes in there?

Did you do anything to like, see beyond just, it could have happened as far as the scaling?

And he goes, no, like looking at me, like I was crazy for even suggesting it.

And he, he goes, and I was like, so you just, you just thought, oh, it's possible that that's good enough for me.

And he goes, well, you know, there are certain people like rock climbers that can climb and they have special shoes that allow them.

And I was like, did you find any shoes like that?

And he was like, no.

I asked him, but you knew that my client had an alternative version and he's like, yeah, I looked into it.

And I was like, and you looked into it.

How?

He's like, I called the complaining witness.

And he told me it didn't happen.

Right.

And he was like, he told me it didn't have a case closed, you know?

He's like, I left the card and they never got back to me.

Yeah.

So that was it.

That was that?

And he comes off the stand and the state rests.

All right.

So the state rests and then you put your client on.

He came off the witness stand right around lunch.

So what we did is we advised my client of his fifth and then we broke for lunch.

So the judge advises him of his?

No, I advised.

You just advised him?

Yeah, advised on the record.

We go to lunch.

Oh, so you guys do that on the record.

If your client is going to testify, you advise him of their fifth amendment, right?

Right.

Yeah.

And he's been in a wheelchair the whole trial.

Yeah, whole time.

So we come back, do motion for judgmental acquittal.

It's denied.

We readvise him.

He says, yeah, I want to say everything that I've been trying to say since the beginning.

And so he's ready to go.

Yeah, he has his day.

Like, that's to me, I don't know.

I mean, I know this ends in a not guilty, but he's so vindicated from that.

And Jerry comes in, he's in the witness stand, and we're off.

And I just asked him, you know, from the beginning, like, how long had you been staying at that apartment complex?

When did you first get there?

When did you first get there?

Like, how do you know these people?

And, like, through his family.

And he just told, step by step by step, the progression of that night.

From the moment he got there after work, with his family, walking the streets, looking for a liquor store, coming back.

His conversation with the complaining witness, and how, and no point did he, like, trash the complaining witness.

He was like, yeah, the guy was really nice.

He was very friendly.

I was, you know, I was convinced.

I went to his apartment.

But at no point did I break and enter.

At no point did I, you know, do anything.

Or did he do anything?

I didn't think anything wrong was happening.

The state on cross of my client made a, tried to make a big stink about the fact that, so my client had one black and mild that he had been smoking and another black and mild that he had not smoked and that he was saving for later.

And the complaining witness was like, hey, do you have another cigarette that I can have?

And my client said no, because he didn't want to give him the second one.

And on cross, the state's attorney made a big deal.

He was like, you lied to him about how you didn't have another one when you did.

You lied from the beginning.

So damning.

They're only impeachment.

Someone doesn't want to share a cigarette.

So, okay.

And my client, you know, he, he explained like, I remember what floor.

I remember the, the apartment room number.

And I remember where the, he like described in detail the, the layout of the apartment.

The.

Yeah.

Because he wouldn't know the apartment number if he went in through the window.

Yeah.

And he, um, just, he, he described the, the liquor bottle and like the process and like where the guy got the knife.

He described everything in detail.

He explained, you know, that he went onto the balcony, that he stood and walked around while smoking, you know?

Um, he, he said the movie that they were watching, which when I asked him very, at the very beginning, he's like, yeah, we were watching a movie.

And I was like, what movie were you watching?

He said, you're not going to believe me when I tell you.

I'm like, well, just tell me then.

The movie was Titanic.

Um, which I was like, okay, that seems like not the kind of movie I would expect.

The two guys to be watching, but okay.

Right.

Yeah.

That should have been his first.

As tragic as the story is, can you imagine all this actually going down in that apartment with that soundtrack?

Oh my God.

Yeah.

Getting stabbed in my heart will go long.

Oh no.

It's not on my bucket list.

God damn it.

But, but he testified, he did testify.

He's like, yeah, we went into, to the complaining witness's bedroom and the movie was playing and it was like at the part where the boat is starting to sink.

Like he, he like.

That's like an omen.

He like knew where it was.

Yeah.

Right.

Um, and he, you know, he smokes the cigarette.

He's, he says, I'm thinking I'm going to go home now.

The complaining witness is like, no, stick around.

Like we're having fun.

Just hang out.

And he says, yeah, I went back in there and I laid on the ground and I passed out.

I asked him and what happened next?

And he, he collects himself and he very like calmly looks at the jury and he says, I woke up and the guy was sucking on my penis and like my shorts were down.

He was lying next to me.

He was masturbating next to me.

Like, and he's like, I hit him.

I, I was trying to get up, pull my pants up.

I'd said, you know, we're going to fix this through the police.

And as I'm trying to get out, that's when he kicks me or pushes me and he attacks me and he's holding the knife and he's just, it's a harrowing story.

He's talking about how the guy is like holding the knife, trying to press it into his chest and he's holding on to like trying to prevent it from going.

He's like, I, I lowered it down.

It was going towards my stomach.

And then the guy twisted the knife and it stabbed me in the leg.

Like, Oh my God, you're a poor client.

That's just, it sounds so terrible.

And then, and also being charged and also having a jury trial and also being in jail.

Yeah.

Like the injustice for your client is disgusting.

And just disgusting.

You know, he, he, it's not clear exactly when in the testimony, but client says that he is the one that called 911.

And again, like the, the radio logs show that somebody called and there was a language barrier.

And the only person who would have a language barrier would be my client.

Could you get that in and trial?

No.

So the state got that in because they introduced the law.

It was one of the first things they introduced in evidence.

I was like, Oh, you, you want to do, do the work for me.

All right.

Thanks guys.

So when your client is looking at the jury and telling them, you know, in detail how he was attacked and sexually assaulted, are they reacting at all?

Do you, are you looking at them or are you kind of focused?

You could hear a pin drop.

It, it, like they were paying attention to every word he had to say.

He testified as to why it is that he asked for a lawyer, um, from after his conversation with the detective.

And, you know, he, he said, I'd never climbed the walls.

I never did a crime.

I was invited in.

I did nothing wrong.

And, and that was it.

Like, and he, he, his, his testimony on direct, I think was about an hour.

Like he was on there for a minute, um, talking.

So you did talk a little bit about cross and how they tried to impeach him, but, um, how, how was the, the cross with your client?

Cause it's through an interpreter.

Yeah.

So my client, very earnest guy, like you ask him a question, he's just going to tell you yes, no, or why, like, this is what I did.

And a lot of the questions by the state were like attempts to trick him, you know, like, oh, you say you did this, but isn't it actually this?

And my client would just be like, and my client would just be like, no, no.

At one point, you know, the state was trying to like confuse my client by asking a lot of like double negatives or like, would it surprise you?

Would it not surprise you to know that nobody else didn't find or smell like all sorts of stuff?

And why can't they just try a case?

Just try a case.

Just try the case.

If it's bad, it's bad.

If it's good, it's good.

But it was, it was funny.

Cause I'm like, I'm listening and I'm like, these questions don't really make any sense.

Like they're terribly phrased, but you could see the interpreter struggling and trying to like interpret decently.

And so my client would just kind of sit there and wait and the interpreter would not use the exact same tone.

So instead of this kind of like, oh, you lie, they would just, they would just be like, it was like a neutral tone.

So my client would just say, no, I don't understand.

So yeah, it was like my client, it really didn't, the cross-examination did not hurt him.

Like they're like, oh, you, you knew which room number it was, but you don't remember your, like your brother's address.

And he was like, well, I know the street name and I know his room number, but I don't know like the building number.

It's stuff like that.

That it's just like, okay.

Like he doesn't have a hundred percent perfect memory, but he does remember like the parts that matter.

Like I understood what the state was trying to do, but it just, it didn't happen.

Well, they didn't have much.

I mean, I think it's very difficult to cross on something that's not your theory at all.

Right.

It's there's, you know what I mean?

Like it's, it's just, you don't have that much to go on.

Yeah.

They're just looking for live inconsistencies.

Yeah.

Yeah.

Yeah.

Not to like, you know, apologize for them or anything, but I can't imagine.

That'd be justice for the state.

That's why we brought you on here.

They should have their own podcast.

When do we get all the fun?

It's also called another not guilty.

Only they're pissed.

Um, so defense rests.

So we go into close.

Who closes first?

The state?

Yeah.

So we went over jury instructions.

We didn't get through all of them.

So we came back the next day.

Um, so we're now on day three.

We're on day three and you're closing day three.

Yeah.

So we're doing jury instructions.

Uh, we, we, we got the self defense instruction in.

That was the one that I wanted.

Um, and so we were good on that.

And which charges would that affect?

It would have affected the robbery, the assaults, the armed robbery.

Um, I wanted it in because I, my client had said that he hit the complaining witness, but he did it because the complaining witness was sexually attacking him.

Um, and I, and I knew I was going to say that in closing.

The self defense instruction is applicable anywhere.

There's an allegation of force.

So under the state's narrative, like there, there really wouldn't have been a self defense claim because then their narrative, our client broke into the home.

But in my client's version, that never happened.

I wanted self defense in because I wanted to cover or protect my client because I didn't want any jurors thinking like, oh, I believe the client, but he did say he hit the guy while he was performing fellatio.

Yeah.

You know, I wanted to make sure so that I could say the only reason my client hit that guy is because he was being sexually assaulted.

Um, you know, it was, it was more of a, like covering my bases.

I, but I, my, our version was the state's version never happened.

All of these charges are, are nonsense.

Um, but I, I, I still wanted it in.

And so state does their closing basically they're like, you know, believe the complaining witness, you know, reasonable doubts need to be reasonable.

Um, a summary of the state's version, you know, don't leave your common sense at the door.

They always use that one.

Like they're saying reasonable doubt needs to be reasonable after they just had a CW testify that client scaled three stories in a white bucket hat.

Like, how would you be able to see the next rung if you have a bucket hat, like logistically?

So then you're close.

I use the metaphor that I learned from a colleague.

It's the, uh, the frog in the box where like, oh, you have a frog.

It's in a shoe box.

You put a fly in the box.

You close the lid.

You leave it for an indeterminate amount of time.

You come back, you open it.

Fly is gone.

Okay.

You could reasonably believe that the frog ate that fly.

Right.

But what if you look and you see, oh, wait a second, there's a hole in the corner of this box that's big enough for the fly to just kind of walk on through.

You might have a doubt about whether or not that particular frog ate that fly.

And then I said, ladies and gentlemen, the state's case is full of holes.

Uh, and then I just started listing them.

And that's good.

I might use that.

I mean, yeah, it worked, but you know, I started with like the police investigation or lack thereof, you know, like they're only talking to the one guy who speaks English.

They never got my client's version.

They never looked at the ring camera for 1230 in the morning.

You know, it's this one detective who does one phone call to the CW and kind of looks at the lattice work and there's no follow up whatsoever.

I talked about, um, the 911 call that, you know, there's a language barrier.

I just talked about all the things that the police did not do that they could have absolutely done and, you know, show them the pictures about like the alcohol bottle in the, the CW's room.

The guy who says that he never has alcohol, never, you know, touches alcohol, um, talked, uh, highlighted the differences in the versions of the CW, you know, with the poker game, without the poker game, all that stuff.

Um, and, you know, the state in their closing, you know, they had said, you know, this, you know, defendant, you know, if you don't believe his version of events, he has to be guilty.

Like, well, obviously, but, but then it's, they're like, he has every motive to lie.

He has every reason to come up with this narrative.

He's been, you know, making it up the whole time.

And when I'm up there, I'm like, he has every motive to tell you the truth.

This, he has been victimized.

He has been, you know, not helped and he's trying to explain his version of events.

Like he has every reason to tell you the truth.

That's his motive to tell you the truth.

Um, and by that same logic, they have every version or every reason to lie because he sexually assaulted someone.

Exactly.

Um, I mentioned that we didn't hear from any of the responding officers.

We didn't hear from any of the EMTs.

Um, I mentioned the knife.

So the state had a picture of a knife that they said was the knife.

My client testified and said, no, that's not the knife.

And the picture of the knife, it's like a long, like almost like a fish knife.

Um, and you look at it, it has no blood on it whatsoever.

I'm sorry, but if this is a knife that's been used to poke one guy in the arm and then another person through the leg and it is squeaky clean.

I just, I have some doubts that that is the weapon in question.

Especially if there's blood everywhere.

Exactly.

Everywhere.

And so I, I told the jury, look, my client told you the truth.

The complaining witnesses version is not true.

It's, he panicked.

He didn't expect my client to wake up during the sex crime.

And this is what he did.

He attacked my client and then, you know, recovered enough, you know, to like not stab him again.

Um, but he made up a lie, uh, to, to, to sort of protect himself or, or to like not get in trouble.

Um, and I just said, look, my client was very credible.

He gave you every possible detail of that knife.

So, you know, find him not guilty.

That's the only proper result is for him to be not guilty of everything.

Didn't state rebut.

Yeah, it was whatever.

They didn't, the only thing that really bothered me is that they had a picture of the balcony

from the outside, you know, and it had like the floor mat and it had two footprints on it.

Now, my client had already testified, you know, that he had been smoking on the balcony or whatever.

But the, what the state also did is they took a picture of my client's shoes, like from one

of the body worn camera or like one of the evidence photos or whatever.

And then through whatever program on like the next slide of the PowerPoint, superimposed the shoes

over the footprints without any testimony, any expert, any, anything.

And I immediately objected.

It was like, they are, and you know, we are like, absolutely not.

And you know, the judge is like, I don't think you can do this.

And the state is just like, why not?

We do it for like tattoos and stuff.

And I'm like, absolutely not.

Um, like, I don't even know if those shoes like have the right.

And the state even said, like, I mean, the treads don't match.

I'm like, what are we doing here?

Right.

Yeah.

That's why.

You know, that's.

And, and I must've been.

Like, that's like, when it, when at any cost type of, yeah, that's not right.

I must've been really, really heated.

Cause even the judge was like, Hey, let's, let's bring the temperature down a little bit.

I was like, absolutely not.

Yeah.

You bring the temperature down.

So yeah.

Uh, the objection was sustained that, that, that was stricken and everything else.

But, um.

What did they say to the jury to cure that?

No, they just said like, don't consider that.

Like, it's not, that's not something you should consider.

Don't consider that clip art.

Yeah.

Yeah.

Don't, don't consider that.

And, and, and that was it.

How did you feel after you closed?

How did you feel about your case?

I felt that we had done as good a case as we could do under, you know, everything that

had happened.

And how was your client feeling at the end of the trial?

I looked over, um, I mean, he was just writing down the Lord's prayer, um, you know, in Spanish.

And I'm just like, Oh my God.

You know?

Yeah.

That's kind of, that's heartbreaking.

Yeah.

Yeah.

That's so heavy.

And, um, and so, but I talked to him and, you know, he's just like, you know, it's in

God's hands and like, yeah, we'll, we'll just have to wait and see, um, what happens.

Yeah.

Mm-hmm.

So jury deliberations.

Yeah.

They had questions.

They did.

So at like 440, we get called back and, uh, the, the prosecutor had left at four o'clock

and had a different prosecutor stand in, uh, which.

Wow.

He really cares about his case.

Yeah.

The judge was a little annoyed.

Yeah.

He left at four cause it was four.

He just left and you know, the, you have to go to the gym.

He's like, it's four laundry.

It's four.

It's like, I got, I got to get, I don't get paid enough to stay past four.

Can you imagine if the defense was like, it's four?

Oh, absolutely not.

So they, they had a question.

There was one note with five questions.

They were like, did the state stipulate to like, where the evidence in the bag, so the

watch in the gold chain, what, is there a stipulation to where that came from?

What is, there was like a, a writing on the bag that wasn't very clear.

Like, what does this mean?

And they asked, can you clarify the self-defense instruction?

Can we be deadlocked on an individual charge, but not on all of them?

And where were the keys found?

Like, was there an evidence ledger?

That kind of stuff.

And so I did not know how to like interpret all of those questions.

I wasn't sure if that was good or bad, but.

I don't love the, can we be deadlocked on one and not all?

Yeah.

That's scary.

Cause you're like, what did they hear?

Yeah.

Yeah.

That, that was the one I was kind of like.

Did you end up answering the questions?

I know a lot of times you just are like, no, go back and figure it out.

It was pretty straightforward.

Just continue your deliberation.

You have what you need.

Just.

All right.

All right.

Let's talk about the verdict.

So they come back with a verdict.

What are you feeling?

I remember thinking like, maybe they're going to split the

verdict, you know, maybe they're not going to, I don't know.

But, but at the same time I was like, no, this is an all or nothing case.

They either believe my client or they don't.

So we're either going to get all guilties or all not guilties.

And it really is going to come down to what are the first one or two

verdicts.

Yeah.

They call the case foreman and they just start down the roll.

Do you find them guilty or not guilty or guilty of home invasion?

Not guilty.

And, you know, I, I, I'm just, you know, breathing, but at the same time,

you're just like, Oh, I just got all these other counts we got to get

through.

Yeah.

Did your client react to the first one?

No, no reaction.

You know, and, and so they're going, you know, first degree burglary, not

guilty, you know, armed robbery, not guilty.

And at that point I'm starting to think, Oh, there is no way that they're going

to find him guilty.

And so I like turn, I, I look at him and they're still saying not guilty, not

guilty.

And I'm telling him like, Hey, like you were winning.

Like you, you, you've won.

Like this is, and they finally called all of them and they were not guilty.

He's across the board and, um, you know, I'm, I'm explaining to him what that

means.

And, you know, he starts, you know, he, he finally starts crying.

Wow.

I'm crying with it with him.

Um, the, the jury is thanked for their deliberation and they are excused.

And then for a while, it's just me and my client, like in the courtroom by

ourselves with the clerk, he was just relieved that it was over, that he was

relieved that the jury believed him.

Um, yeah.

And yeah, did the CW ever, did they ever investigate the allegation of the sexual

assault?

Did he get in trouble?

Absolutely not.

Absolutely not.

To this day.

They never believed my client before.

They're never going to believe him.

They never looked into the client and, uh, into the CW.

I mean, there's no doubt in my mind that, you know, he, he raped my client and I, whenever

I go into the Annapolis area, like I see the dealership and I like relive that trial.

Yeah.

Yeah.

Yeah.

Yeah.

And he's just out there.

Yeah.

You know, getting away.

Living his life.

Who knows how many other people he's tried doing this to or has done it to.

Yeah.

And it, and it does like, you know, obviously this person is likely to become one of our

clients one day.

So I do have compassion for people.

Um, but it's this like mishandling of the situation by the state that creates these situations

where people learn that they can use the system against other people and it, there won't be

consequences for them.

Right.

Do you, have you kept in touch with your client?

Do you know, is there any followup with how he's doing today?

I, I don't know because I found out later when I got a phone call from an

immigration, uh, public interest firm that what happened is rather than my client being

released, he was held by, by ice and was moved to, uh, a detention center, uh, under

ice custody.

And for these accusations and talking to the, and so I, I made sure to like tell the attorneys,

I gave them all the discovery.

I, I gave them audio of the trial and explaining like, no, like he was acquitted of everything

because a jury believed him over somebody else.

And they were talking about different kinds of visas and what would be needed in order to

do that.

And what they would need would be an affirmative sort of declaration from either the Annapolis

police detective, uh, which the immigration attorney told me that they talked to that detective.

And when they explained, you know, what they were trying to do, the detective just kind of

like laugh at them on the phone.

I'm sure that's the last person who's going to have the humility to own that the wrong

person was charged.

And then, um, they reached out to the prosecutor and the prosecutor basically said, if you try

to press charges against the complaining witness for, well, you know, what my client said had

happened to him, like, we're just going to file perjury charges against him, which makes

no sense.

Um, but, but I mean, it just shows the willingness of the state to like, to, to not concede that

maybe possibly they made a mistake.

Um, and so I, I, I don't know.

I, I tried keeping in touch with the attorneys, but, um, you know, I haven't heard from them.

So I, I have no idea.

You know, I feel like there's a lot, like sometimes with not guilties, it's like at what

cost, right?

Like the not guilty is great.

It's wonderful, but there's so many collateral consequences that our clients have for just

having contact with the system that it, it's can last a lifetime, even though they were found

not guilty.

Yeah.

That is just a harrowing, not guilty.

And it's tragic.

The outcome.

It's still tragic.

Well, thank you so much for the paper telling us the story, um, you know, and telling us your

client's story.

I really appreciate it.

This is the part of the show where we ask our guests what we call the ultimate question.

Why did you become a public defender?

When I was in the military, when I was in the Navy, like every morning we had to cite the

sailor's creed.

And part of it involves like, you know, I'm going to defend the constitution and, you know,

and support it.

And I said it every morning, having no idea what the constitution says, nothing really.

And, uh, you know, after I got out, I was going to college and learning about, you know,

like what the constitution is, what it says.

And, um, I was like, oh, wow, that, that really is important.

And, you know, learning about like the civil rights period.

And as, as a freshman, I was like, wow, lawyers have a lot of, have a role to play in making

a fair, just society.

And I was like, I'm going to go to law school.

So like, as a freshman, I knew I was going to go to law school thinking I was going to

be a civil rights lawyer.

And then, uh, I go to law school and I got a clerkship with the public defender's office

in Maryland, in Anne Arundel County.

And, you know, I was like, oh, I'll try it out.

You know, give it, give it a try.

And on the first week I was like, I love this.

This is incredible, you know, meeting clients, seeing, you know, going over the reports and

everything and just falling in love with the work.

And, but like, I love being a public defender because of cases like this, where my clients

have been accused of something and it's totally wrong.

Um, and somebody needs to stand up for them and, and, and represent them.

Um, like, so I've had so many cases where the state just wants to say that my clients are

the worst people.

They're doing terrible things.

And that is not the case.

And, you know, somebody just getting to, to, to try to make this a fairer, more just society

one case at a time.

Um, is, is why I do it.

I, I, um, I can't imagine doing anything else.

It's, it's how I, how I got here.

I representing people, um, keeping the state from, you know, just locking people up.

Um, I cannot imagine doing anything else.

Yeah.

There's no job like it.

Yeah.

I'm so glad your client had you.

I think of situations where same facts, same allegations, same charges.

And client has an attorney who can't or won't try the case, can't or won't come prepared.

A judge that doesn't know the rules of evidence or won't apply them.

And just tragedies happen.

Yeah.

Yeah.

Yeah.

Yeah.

Thank you so much for sharing with us.

Really appreciate it.

It was great having you on the show.

Thanks for having me.

Yeah.

Honored to talk to you.

Phenomenal case.

Yeah.

Thanks.

Yeah.

That case is insane.

Yeah.

But keep up the amazing work.

It sounds like you have, um, a lot of pots still on the stove.

So we look forward to, we look forward to hearing from you soon.

Yeah.

We're not guilty.

On another NG.

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

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