Mind Your LGBT's & Q's – When Bias Becomes the Evidence

Here at Another Not Guilty, we appreciate your support. Don't forget to subscribe or follow us. And please visit our website at anothernotguiltypod.com. Without further ado, here's this week's episode of Another Not Guilty.

What the hell? I go, you're gay, right? And he says, yeah. And I said, what is this hate crime allegation about?

This witness got really upset because he didn't like the grilling that I was doing. And sometimes I get kind of excited and I start grilling people and I can't stop.

I said, well, isn't it true you were having fellatio performed on yourself? And he said, you know, I don't remember.

And I looked at the judge and I said, well, I have no further questions.

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

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

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

In an unjust criminal system.

With a deck stacked against us.

Another not-guilty.

Okay.

From, what's that? Wayne's World?

Wayne's World.

Okay.

Remember? Remember that?

Five, four, three.

Another not-guilty. Another not-guilty.

Another not-guilty.

I'm Wayne.

And I'm David.

Here for another not-guilty.

And today, as always, we have an awesome co-host, Miss Allison.

How are you today?

Hello.

I'm great.

Thank you.

Thanks for having me.

I think this is the second or third time you've been a host.

Huh.

You know, I'm not sure.

Yeah, yeah.

You need to do it more often because, I mean, you did episode 10 with Jimmy, and a lot of

people loved having you on the episode.

Really?

Yeah.

Jimmy thinks it's him that they love, but they really loved you.

Ooh.

Yeah.

Ooh.

Well, I'm back whenever you need me.

Okay, great.

And we have a guest today with another not-guilty.

And if there's anybody that says they have another not-guilty role, it's this guest.

She is a superstar in our office, always rolling out the not-guilties, one after another.

JBG, what's going on?

Hello, guys.

The notorious JBG.

Notorious.

Who's trying to disguise her voice until she starts laughing.

Yeah.

Then everybody will know exactly who I am.

Okay, JBG, thanks for being on our show today.

Thank you for having me.

Share your not-guilty with us.

What case are we talking about today?

So, I want to talk to you guys about a case that, for me, was really fun.

You know, we deal with serious felony charges, but occasionally you'll get a case that once

you take it to trial, it's actually kind of fun to do.

Right.

And this was one of them.

I want to talk about this particular case because your fabulous co-host, Allison, was quite

instrumental in helping me with this trial.

Oh, okay.

Yes.

She was my behind-the-scenes co-counsel.

So, it was pretty awesome.

All right.

So, the charges were, count one was a robbery, penal code 211.

Count two was a 245A1.

That's assault with a deadly weapon.

And there was a hate crime allegation attached under penal code, I believe it's 422.75.

And was the hate crime on both charges or just the assault?

The hate crime was attached to, I believe, both counts.

Okay.

So, clients looking at strikes.

I mean, these are serious charges.

Yes.

Okay.

Yes.

All right.

And the victim's gay.

Yes.

Yes.

The victim in this case is gay.

So, your client doesn't just rob anybody.

He robs gay people.

Right.

Right.

Okay.

I don't always commit robberies, but when I do...

The person's got to be gay.

It's gay.

Yeah.

All right.

So, what are some of the prosecution facts?

All right.

So, police report facts.

The alleged victim is coming out of a bar and he is on a street.

I believe it is Los Angeles street between 5th and 6th.

This is downtown LA.

And he walks up to two guys that are on that street.

And all of a sudden, he is attacked by three men who jump out of the shadows.

And he is beaten with a metal pipe.

And while he is attacked, one of the men is saying something to the effect of, "I'm tired

of this gay shit in my neighborhood.

Get the fuck out of here with that gay shit."

He walks up to two guys.

Yes.

And then three separate guys come out of the shadows?

Yes.

Okay.

Yes.

And he gets beaten up.

And at some point, my client is there giving him stuff back.

So, while he is being beaten up, his wallet had been pulled out of his jean pockets.

Because the guys kind of pocket checked him too.

Okay.

All right.

So, his wallet had been pulled out.

His keys had been pulled out.

But maybe like a couple of dollars.

And my client, after the three guys attack him, is there giving him his stuff back.

That's the police report that he's giving his stuff back?

Yes.

So, the police report says your client is separate from these three guys.

No.

My client has been included in these three men.

Oh, he's one of these three guys.

Because the victim says, "Hey, that guy right there, he did this to me."

And so, my client was arrested.

Okay.

So, he's one of three guys that jumps out, beats him.

Somebody says, "I'm tired of this gay shit."

But even in the police report, it says your client was giving the stuff back to him.

Yes.

Once the police arrived, I guess.

Yes.

And I think that was a part of the body-worn video.

Okay.

So, I'm going to say that's the police report.

It's like the discovery.

It's part of the body-worn video.

Okay.

And I believe that came out at the preliminary hearing as well.

All right.

So, you get the case then at some point.

Yes.

Right at the beginning.

You didn't do the arraignment, right?

You get the case.

It's set for prelim.

What's going on at that time?

All right.

So, this case was set for preliminary hearing.

And at that time, I was in another trial.

So, your wonderful co-host, Allison, who is like my co-counsel in almost every trial that

I do, and a very good friend of mine, went in and did me a favor.

And she went to go and talk with my client and just let him know that I wasn't able to

do the trial and continue the case.

So, she was able to interview him and talk to him about what was going on.

Do you remember this case, Allison?

Yes.

I do, actually.

Because, you know, a lot of times when you're standing in for one of your colleagues, you

know, you're just, you got your own shit to do.

So, it's kind of like, hi, sir, my name is Allison.

I'm standing in for your lawyer.

They're in trial.

They're great.

We're just going to set this date for as soon as they're done.

And, you know, the client's like, okay, cool, you know, this and that.

This client did not feel that way.

It wasn't quick and easy.

It was not quick and easy.

And so, sensing that that was the case, I sat down with this gentleman and figured, you

know what, you seem like you have a lot to say.

Okay.

And one of the first things that stood out to me was, as we heard, the hate crime allegation

was that the victim in the case was gay.

And when I first met the client, he was wearing light blue jail jumpsuit, which signals to

me that he's being housed in the K6G ward.

Right.

Which means?

That he's chosen to be or identifies as preferring to be housed with the gay population.

So, when I sat down with him and saw that, I was a little perplexed because usually when

somebody is accused of committing a hate crime, it's against another group, not a group that

you belong to.

So, we had a quite animated at length discussion just about that.

Because this client was very proud and out gay.

You know, whatever other matters that I handled for Miss JBG that day, I remember at the end

of the day, you know, giving her back her files and being like, oh, and by the way, pay attention

to this one.

I totally believe him.

JBG, do you remember this?

Yes, absolutely.

So, Allison hands me the files and she says, dude, you gotta look at this one.

And I was like, okay, okay.

So, I kind of actually, actually, when she said that to me, I was like, I think probably

in the middle of pulling off my shoes because that's usually what's going on when I come

from upstairs.

The first thing.

I actually sat down that night, even though I was in trial, another case, and I read it.

And when I finished reading it, I said, God, this is such an interesting story.

This has got to be true.

And that even has got to be true, but what they're saying happened in that police report

is not how this happened.

This didn't go down like that.

So, I finished up my trial.

God, not guilty.

Not guilty.

Okay, great.

Of course.

And I go see my client.

I see him in light blue, as Allison had described earlier.

And I go, what the hell?

I go, you're gay, right?

And he says, yeah.

And I said, what is this hate crime allegation about?

I don't understand.

He says, I know, I know, you know.

So, I find out he's gay.

I'm perplexed by the allegation.

I sit down.

I talk with them.

He tells me what he eventually testifies to.

Okay.

Which is the following.

So, he says that he happened to be riding his bike down Los Angeles Street between 5th and 6th.

And he sees the victim sitting on the corner behind a blanket.

But he could tell that the victim was giving somebody a blow job.

Okay.

And there were two guys sitting there.

So, he was giving these guys blow jobs.

And then, when he saw that, he saw three guys jump out of the shadows and start beating the crap out of the victim who was screaming.

And my client says to them, hey guys, stop that.

What are you doing?

Don't do that.

Right?

So, then, client rides away and client encounters the police.

Someone called the police.

Not sure who.

Client walks up to the police and he says, hey, hey, these guys are over there on the corner fucking and sucking and fucking and sucking.

And, oh, yeah, the cop says, well, someone was just robbed and beat up over here.

Do you know anything about that?

He says, oh, no, no.

I didn't do that.

I saw that.

But I didn't do that.

He's upset about the fucking and sucking and he keeps telling the cops.

He says, that's nasty.

That's nasty.

So, wait.

Their client, he goes to the police not to report the ass kicking, but to report the blow job in the corner.

Absolutely.

Which, I'm thinking, that's odd.

Because I would have reported the ass kicking.

Right.

My client is homeless or was homeless at the time.

Something he testified to.

And he didn't want to rat fink on anyone who had used violence.

Snitch.

Snitch out.

Sorry.

Snitch on anybody who had used violence.

And he recognized the guys who had done it.

So, he didn't want them coming after him.

You think maybe him reporting the fellatio was his way of alerting the cops to it?

You know, I never thought of that.

Maybe so.

That's what actually I felt like totally occurred to me in the way that you just said it right now.

Oh, okay.

Because I could be wrong here, but I feel as though we didn't know that those were the words that he used until we got the body worn video.

Yeah.

I think his characterization was more just like, I flagged down the cops.

But we didn't know that that's what he described until later.

Oh, okay.

So, we're just thinking, oh, if you just rob somebody, why would you then claim to go flag down the cops?

So, I think you might be spot on.

Yeah.

Like, maybe he's just like, we need police, but I don't want to be a snitch.

Right.

Fools are getting down on the street.

I don't know.

See, this is why she's my co-counsel.

Right.

Yes.

Absolutely.

Okay.

So, yeah.

That's a great point.

Maybe that was his way of doing it.

Yeah.

Okay.

So, then what happens next?

So, at some point, my client heads back over with, he stopped by the police.

All right.

They stop him.

They go, wait a minute.

And they hook him up immediately.

And they separate him from the victim.

But they bring him back over there.

Because they kind of want an ID, I guess.

And the guy is kind of still looking for stuff.

The victim, he's still looking for stuff.

He can't find his keys.

He's looking and looking for his keys.

And then he says, that guy right there.

And he points at my client.

He says, that guy's one of the guys that beat me up.

And my client says, nah, man, I didn't beat you up.

I was trying to, I was giving you your stuff back.

I was giving you your stuff back.

He's like, yeah, the stuff you took from me.

He was like, no, I was giving you your wallet back.

I was giving you something else he had.

I think like a couple of bills or something like that.

I was giving that back to you.

He's like, no, no, no.

It was you.

You did it.

You beat me up.

You jumped out.

I'm saying this to my client.

And so, and this is on the body warm video at this point.

Okay.

So, and this kind of bleeds into the story.

How bad is the victim beaten?

He had a couple of cuts on his face and he got punched in his face a couple of times.

And he says he was hit with a metal pipe, but we don't have any pictures of any bruising to his body later.

We don't have him going to seek medical treatment.

We don't have any proof of that.

So, one of the guys that the dude was performing fellatio on.

Right.

He was standing over with the victim.

This guy speaks Thai, but he speaks a little English and he has this thick accent.

And so he's standing over there and he's pointing at my client.

You beat him up.

You beat him up.

This is what he's saying.

Right.

And my client's fussing back and forth with the two of them.

And the cops are just kind of standing there trying to keep them from talking to each other.

Right.

So, then my client was arrested.

And what's the race of everybody?

So, my client is a black man.

Okay.

The alleged victim was white.

Okay.

And...

The witness, this is Thai.

The witness, he's Thai.

Okay.

Yeah.

He was a Thai prostitute.

Preliminary hearing.

Right.

I start asking the victim.

Hey, this is David.

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Thanks.

Well, so what's going to be your strategy at the prelim then?

So, my strategy at the prelim is to try to get the victim to admit that he was doing something.

And I don't know how bad this is going to sound.

But I wanted him to admit that he was doing something that made somebody think he was gay.

And let me tell you why.

According to the police report and according to his preliminary hearing testimony, he says,

I walked out of the bar and I walked up.

I saw these two guys and I just said hi to them and I was attacked.

And I thought to myself, now, if you're just standing on the street talking to two guys,

why would someone think you're gay?

Right.

That's ridiculous.

You had to have been doing something that would make somebody think you were, the people who

attacked you think that you were gay.

There's no way because what my client testified to later on, and I told you about this already,

is that he saw them having sex on the corner, basically oral sex on the corner.

So my strategy was to try to get him to admit that at the preliminary hearing.

Not to embarrass him, but just tell him to admit it.

Right.

And just to corroborate what was going to come out as my defense.

So he starts out at preliminary hearing by testifying that he, you know, he went to the bar, a couple

of bars.

He had, I think, two to three drinks at some point during the preliminary hearing.

I go, well, what kind of drinks did you have?

And he tells us and I said, how much of each drink did you have?

Okay.

And did you drink anywhere else?

Oh yeah, I drank at home too.

And I said, so now we're talking four to five drinks, right?

Yeah.

Okay.

And you just walked up to these two guys and you're just having a conversation with them.

Right?

Yeah.

Yeah.

That's it.

I said, so I said, so you weren't flirting with them.

Well, yeah, I was kind of flirting with them.

What kind of flirting were you doing?

I mean, questions like that.

This witness got really upset with me at prelim because he didn't like the grilling that I

was doing.

And sometimes I get kind of excited and I start grilling people and I can't stop.

So he was, and we got into fights on the stand.

Okay.

I was agitating him.

Yeah.

And so the more I agitated him, the more I would, you know, kind of puff up and I'd get

worse.

Cause now I'm just like, okay, well, if you want to fight me, I'm asking you simple questions.

Like how many drinks did you have?

Why do you have to fight me on that?

Or, you know, how far away were you standing from the person who beat the hell out of you

with the metal pipe?

Come on.

And he just was, he's just getting really, really, really upset.

I shouldn't laugh about that.

I know.

Let's see what happened next.

I asked him a couple of questions about how close he was to him when he was, you know,

doing, he was flirting, but I didn't ask him the ultimate question because I, I was afraid

of what his answer was going to be.

And this was preliminary hearing.

And I thought that I would do other things to try to figure it out.

What were you afraid that was going to happen if he said, cause here's your opportunity to

see what he's going to say, right?

Isn't it sometimes better to find out at the prelim, what the witness will say, as opposed

to at trial when it's a surprise in front of the jury?

Absolutely.

It's always better to do that.

And normally that's what I do.

I ask my really, really horrible questions at prelim so I can figure out what the answer

is and figure out how to deal with it.

But in this particular situation, I just didn't do that.

And I can't really tell you why, other than to say that I was afraid of his answer.

Well, and I think at that point it was clear that he wasn't going to admit it in that setting.

Right.

I mean, he's already trying to say he's just talking.

He's already testified to that.

He's kind of barely admitting flirting.

He's minimizing.

So you're not going to get the yes that you want.

Right.

You know, and I think that that was also clear to you.

So if you're not going to get the yes that you want.

Then just move on.

Why let him know what your last card is?

Because again, that's me hinting to the prosecutor what I'm going to do at trial.

And I never do that.

OK.

It is always going to remain a mystery until we're all in it together.

So after the prelim, did you do any prep work before the trial then?

All right.

So, yes.

Well, I am married to a defense attorney and I consult with him.

He was also he's also my silent lead counsel.

My case is co-counsel.

And I'm telling him about this case.

And actually, for all of you out there, because he is my husband, I can talk to him about the case.

Because one, we work together.

Two, there's marital communications privilege.

So there.

Anyway.

So I'm talking to him about the case.

And so anyone who is about to call the state bar police.

Yeah.

Don't even think about it.

She's got her defense lined up.

GBG don't play.

She don't mess around.

So I'm talking to him about this case.

And so you're so you're pillow talk in this case.

Of course.

Yes, absolutely.

And I say to him, I go, first of all, he's gay.

And I'm surprised the prosecutor hasn't figured that out yet.

He comes out in this light blue jail garb.

So and I, of course, I'm not going to say to him, hey, you know, take this allegation away.

I'm like, no, no, no, no.

We're going to put it all in there and see.

See what comes out in the wash.

Right.

So pretrial, I am, first of all, going to prove to the jury that my client is gay.

OK, that was my number one thing in this case.

And now, listen, now, everybody in podcast land, it is not the burden of the defense.

The defense does not have the burden of proof.

However, the way that I like to try cases is I like to prove stuff.

I want to show that certain things are true.

So one of the things I wanted to do was prove to the jury that my client was, in fact, a gay man.

OK.

And so what I did was find two of the people that he had had relationship with.

And so I was able to get both of those witnesses in.

Any other pretrial work?

My co-counsel, Allison, went with me to the crime scene and we took dozens of pictures.

And I like to go to the crime scene just so I can get a feel of what was going on and where everybody was standing.

And, you know, just just so I can picture it in my mind when I am asking questions.

Hey, it's your buddy Dave from Another Not Guilty.

And boy, do I love hearing about not-guilties.

If you or someone you know has ever been involved in an NG, either as a defense attorney, prosecutor, judge, juror, witness, defendant, clerk, bailiff, who knows, whatever.

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Thank you.

Once again, that's another not guilty pod dot com.

Okay.

Now, there was a 911 call that came through.

This is part of my investigation.

And I was able to find that caller because what he described was several people being out on the street when he heard someone screaming at the top of their lungs and a bunch of people scattering.

He actually, according to what he was telling the 911 operator, he actually saw what was going on.

Oh, as he's perceiving it, he's telling the 911 operator.

But he was he was really far away, but he could see that people were scattered out on the street.

He could hear somebody screaming.

He couldn't tell if they were being like he couldn't actually see if they were being attacked, but he could hear the screams.

He saw somebody riding on a bike.

Okay.

Oh, good fact.

You know, it was I was pretty excited about that.

And I found I was able to find him.

All right.

So it sounds like you're ready for trial.

You know, you're not negotiating the case.

You get sent out for trial, right?

Yes.

Okay.

Get sent out to trial to the judge that I've done a number of trials in front of.

Is that a good thing or a bad thing?

Oh, it's great.

It was just fine.

Okay.

And let's just say that at some point during this trial, I heard calliope music in my head.

What music?

Calliope music.

Oh.

Oh.

Oh.

That.

All right.

So here's what happens.

All right.

So we pick a jury, right?

Any special issues that volunteer that you did with the jurors or?

You know what?

I think I talked to them about credibility.

I think I talked to them about things that affect their perception of an event.

Oh, let me back up for a second.

Okay.

Because the victim kept telling us that he had had certain things to drink, right?

He had had alcohol and alcohol affects your perception of an event, right?

Or your lack of sleep or your emotions, stress, whatever.

All those things affect your memory and the perception of an event.

So I asked the jurors about things like that.

What do you think affects your perception or memory of an event?

And they told me, oh, alcohol, lack of sleep, you know, all the things I want to hear.

I also asked them if there was anything about me or my client that would cause them to judge this case unfairly.

I asked them that if hearing certain words would offend them, curse words, words dealing with one's sexuality.

Basically, do you like me?

Are you going to listen to me?

That type of thing.

When you gave your opening statement then, did you just lay out your whole defense or just say keep an open mind?

My opening statements usually are pretty bare bones unless I know exactly what's going to happen.

But with this case, because we never know what's going to happen during trial, right?

And that's one of the things I always tell the jurors, you know, the prosecutor just got up here and he told you what he thinks is going to happen.

But I'm telling you that it's not going to happen the way he says it is.

That's what you said in your opening?

I say that in almost all of my openings because it's true.

It never happens the way that any of us want it to go, right?

And I said, but I'm confident that by the end of this trial, you're going to find my client not guilty.

And so we go from there.

So he puts on his first witness, which he had a problem finding.

OK, so this guy, it's the Thai prostitute.

So he says that he was standing somewhere near the corner talking to the victim and another there was another man with them and they were just talking and flirting.

And then all of a sudden, three men, including my client, jump out and start beating up the victim.

He kind of meandered a little bit.

So I just it was all over the place.

Did he say where he went afterwards?

Or he said that as soon as they started beating up the victim, he ran because he was going to go to the police station to make a call.

So that's what he did.

He jumped up and he ran and he explained where the police station was in relationship to where they were.

And he said that he was a good friend of the victims.

And that's essentially what he testified to.

And he identified my client.

OK, yeah.

And then so on your cross-examination, what did you do then?

So my cross-examination and this is where the calliope music starts.

OK.

I asked him, sir, you said that you were running.

You jumped up and started running immediately when the three men started beating up your friend.

Right.

He says, yes.

OK.

So how far away were you from him?

How far away did you run from them?

He says, well, I ran all the way to the police station.

I said, OK, well, you said that while you were running, you turned around and looked back and saw that your friend was being beaten.

Yes.

How far away were you when you turned while you were running from this scene when you turned around and saw them beating your friend?

This man stands up on the witness stand and he runs towards me.

Oh, like in front of the jury?

In front of the jury.

And the bailiff in the courtroom jumped up and the judge starts screaming at the Thai interpreter.

Master interpreter, tell the witness to sit down.

Tell him to sit down.

And I'm standing there with a very calm demeanor, laughing hysterically in my head.

Because at that point, I was like, this is a shit show.

Did that startle you, though?

No.

Well, yeah, it was weird.

How close did it get to you?

I'd say from where I am.

We're like five, what, three feet away?

Let the record reflect four and a half feet.

Thank you, Your Honor.

Yes.

I was just like, wow, this is crazy.

This dude just got up off the stand and started running toward me.

I'm not sure why.

I guess, I think he was trying to demonstrate to me what it looked like.

Right.

Because he kind of, he was running and he kind of turned his head behind him to show me what

it looked like.

So do you think maybe the interpreter, like, did not ask the question you were asking?

Or I think maybe I asked a shitty question.

Never.

To be honest.

Well, you know, it happens.

It happens.

But it got lost in translation.

Right.

Let's just put it.

I am laughing hysterically in my head.

What are the jurors doing?

I kind of peeked at them a little bit.

They're just kind of like, tittering and leaning back and like, what's going on?

They just, you know, it was funny.

It was hilarious.

So did you continue your cross-examination then?

Yes, I did.

Okay.

So what I asked him was, well, isn't it true that you were performing fellatio on your friend

and another man who was on the corner?

And he said, no, no, no, no, no, no, no.

I was not doing that.

No, no, no, no, no, no.

Okay.

Of course he's going to say no, right?

Right.

And so I said, all right, now I have no further question.

So after that, who else did he call?

Well, I'm just going to get right down to the star of the show.

Let's do it.

The victim.

All right.

Let's hear it.

So this, this was the fun part.

So first of all, the victim comes into court and he sees me and he says, Hey, Miss JBG,

you look pretty today.

And I looked at the prosecutor and I kind of chuckled to myself.

Cause I was like, what's going on over there?

Later on, I found out he wanted me to be nice to him.

And I was like, I'm not going to be mean to you.

This is going to go well.

Don't worry about it.

All right.

So he testifies during his testimony.

It had changed just a bit from the preliminary hearing.

Cause at this point he tells us that he had like six or seven drinks.

And so I'm like, that's not what you said at the prelim.

And that's not what you said.

The police report.

Actually, I don't even think he talked about what he had to drink at the police report.

And so he recalls, he recounts what happens.

He says like, yeah, I was just saying hi to my two friends on the street.

And I got attacked with a metal pipe.

And they tried, they pocket checked me.

They robbed me.

And, you know, and then her client, JBG's client came and he stole my wallet.

And then he took a couple of, he took my keys and a couple other things that he had on his person.

Now, by that point I had had, I had the body worn videos.

And so I knew a little more than what he was saying on the stand.

Right.

All right.

So he just recounts his, his version of it, but he says a few things that are a little different from the preliminary hearing things that I'm going to come back and impeach him with later.

Right.

Just to show that either he's lying or he's just had too many drinks.

Right.

Doesn't remember what happened because what alcohol affects your perception and memory or recall of an event.

All right.

So I get him on the stand and I say, so you're at this bar.

Why are you at the bar?

Oh, well, you know, I was just hanging out with some friends.

I had just broken up with my boyfriend.

So at this point I'm like, he's drowning his sorrows and in a, in a drink.

Right.

I asked him to describe in detail everything that happened and he described it.

And I asked him to tell me where was everybody standing when this happened?

You know, just, just basic stuff like that.

And then I get to the ultimate question because at that point it didn't matter what he said.

If he said no to this, if he, if his answer to this question was no, it didn't matter.

If the answer to the question was yes, it was gravy.

Right.

Right.

And I asked him, isn't it true that you were performing fellatio on, and I finished the question and the prosecutor objects and the judge sustains it.

And I go, what's that?

What's that?

What's that about?

Oh, you rephrase counsel.

Okay.

So then I said something to the effect of, again, isn't it true that you were standing, that you were on the corner and you were performing fellatio on a light skinned black man and the person who just testified on your behalf earlier.

And he said, no, I said, okay, I said, well, isn't it true that you were having fellatio performed on yourself by this light skinned black man and the person who has to fight earlier.

And he said, you know, I don't remember.

And I looked at the judge and I said, well, I have no further questions.

And I sat down.

So now you take what happened.

Well, the memory that I have was from walking in and maybe it predates these two questions because you asked your first question about fellatio.

And the witness pauses, like a major pause, kind of like, hmm, what do I say here?

And the judge turns to the witness and says, sir, do you know what fellatio is?

That's right.

And the witness says, oh, yes, I know.

Yes, that's right.

That's right.

Because I believe the judge thought that the pauses had to do with him not understanding the lingo that Miss JBG chose.

Not the fact that the witness was like, do I lie?

Do I tell the truth?

Right, right.

And then I also believe at some point there was the question as to how often this has occurred.

But I did the prosecutor ask that.

Because I think once I asked my question and he said, you know, I don't remember.

I don't know.

I didn't have any further questions.

And the prosecutor jumps up to try to save his witness.

Right.

And so he starts asking, well, you know, well, has this ever happened before?

Yes.

Yes.

Yes.

And so he's digging himself and even, I mean, he's digging himself a grave at this point.

Because the takeaway is that the witness has had so many sexual encounters on the street that whether it happened that day or not, hard to say.

Right.

And so at some point he even told the prosecutor, I can't remember if I was going to take, I think I asked, they asked me to go back to the apartment with me, is what he said, too.

So then I just looked up at the sky and I said, thank you, God, because that's all I needed.

Just that, that right there.

Right.

Because that just shored up my defense.

Right.

At that point, this complete, this will completely corroborate my clients, what my client testifies to.

Right.

Right.

So.

And the fact, I mean, you have good evidence that the person's pretty intoxicated.

Did he admit he was intoxicated?

Absolutely.

Yeah, he did.

He said, because at the preliminary hearing, he said, oh, I was a little buzzed.

Right.

Nah, dude, you were three sheets into the wind.

Yeah, you're drunk and heartbroken.

Right.

I mean, like when you're like going out because you just ended a relationship.

Right.

That's not the night you're taking it easy.

No, you get fucked up.

I mean, just straight up.

All right.

So go ahead.

Now it's your turn, right?

So it's my turn.

Okay.

So I put up the 911 caller.

Okay.

He described a person being attacked on the street by a couple of guys.

He described a man screaming.

He described a group of people gathered around.

He described someone riding around on a bike.

He described the man who tried to get up.

He described that other people were just watching.

Standing there watching because there were people who were just watching.

Yeah.

The victim didn't remember any of those people.

And so that's what he testifies to.

All right.

The next person that I call to testify is one of my client's former lovers.

And I have to say that listening to them, when I met with them, with my, my silent co-counsel

who helped take down the notes, they were hilarious.

I mean, just, they, they were so funny.

The jurors were laughing every time they said something.

They're not laughing at them, but just kind of like laughing with them.

Like they were comedians.

Okay.

Okay.

So, I mean, you call them up and you're just, you're just doing a basic, like sort of direct

examination.

Do you know this person?

Yes.

How do you know him?

Because he's my ex.

Okay.

Yes.

And I asked, yes.

Do you know this person?

How do you know him?

Well, and it came out that he had, that both of them had had relationships with him while

they were in jail.

The, oh, the witnesses were in jail.

Yes.

So I had to have them ordered out from state prison.

Oh, they're both serving.

Okay.

Actually, actually one of them was ordered out from state prison.

The other person was, was already in county jail on something else.

So I had to have them both ordered in as witnesses.

I also asked them character questions.

Right.

About my client as well.

I was like, besides the fact that you were in this relationship with him.

And then I asked both of them, I said, I said, would you call this, what type of relationship

would you call this?

And they both said this was a homosexual relationship.

That's what they said.

Well, I'm biologically male.

I identify as a female, but this was a homosexual relationship.

So I had both of them.

They both said it was no issue.

And then what's, what's, what's the prosecutor been like throughout the trial anyways?

So the, the prosecutor who tried this case, as I said before, I actually have a great

amount of respect for him.

He's a, he's a decent, he's a decent lawyer because he's a, he's a younger lawyer in their

office.

He's going to be really good.

Right.

The further along he gets in his career.

He wasn't like some prosecutors I've been up against who didn't see it coming.

You know, he didn't see what happened ultimately coming, but he was on it.

So with the two witnesses who were my clients, former lovers, he said, you know, I'm going

to ask you something very sensitive right now and I don't want you to take it the wrong

way.

And one of the witnesses goes, just give me the hot dog without the chili.

And the jurors cracked up.

They were cracking up.

Yep.

All right.

So he gets through his cross examination of them and they both.

Oh, I also was able to get out what the process is to get classified a certain way in the

jail.

All right.

So because I, that was another thing.

I'm sorry.

Right.

Back it up.

Investigation purposes.

I was like, who am I going to get to testify that there is a very rigorous process that

people have to go through in order to be in the gay dorm in men's in the jail, because

there is a process.

Yes.

And so I just had one of them testify to and one of his former lovers.

And I found out that they are given like a 300 question test.

They have to know all the gay terminology.

They have to talk about how many different relationships they've been in.

I mean, it is quite rigorous.

And if you're lying, they can tell.

The jail, the people who work in the jail can tell if you're lying about being gay.

Yes.

Because I mean, dude, if you had to go to jail, wouldn't you rather be, some people would

rather be in the gay dorm, right?

Right.

Because they think they're not going to get beat up or whatever, which is not necessarily

true.

But that's...

I mean, and isn't it nicer actually?

That's what I've heard.

I just think that the people that are in that dormitory are nicer to each other.

Right.

Okay.

Right.

And you're not dealing with gangs.

You're not dealing with, you know, enemy territory and that kind of stuff.

Right.

You're not dealing with any of that.

Okay.

So there is a very rigorous test that has to be passed.

He passed it.

I was able to get that out.

Okay.

So I was happy about that.

All right.

So yeah.

So how do you get that out?

Like through what evidence, like what witness testifies to the rigorous process of getting

housed into the gate?

Just one of his ex-lovers.

Oh, so the ex-lover testifies to it.

Yeah.

Okay.

And I thought I was going to have an issue with getting it in, but nobody stopped me.

So I was like, hey, come on, he can testify to it.

He's, or excuse me, she is in jail there.

How's there?

So she would be able to tell you, you know, what to do or what she had to go through.

And wasn't there some issue about the prosecutor asking about them having relations while in

custody?

Because that is technically a crime.

Ah, yes.

Because I feel like that came out on cross, not on direct.

Yes.

I think your direct was just focused on establishing that your client had, you know, a sexual relationship

with a witness and that your client, I guess, to validify when your client testifies being

housed in the K6G dorm.

Yes.

But I think on cross where things got a little sticky was the talk of whether or not they

engaged in a sexual relationship in custody.

Yes.

The absolute, the absolute.

Thank you.

That's absolutely right.

So I objected because I didn't want the jury to know that it had happened in jail.

Oh, their relationship occurred in jail.

Yes.

Both relationships happened while they were in the jail.

So when I told you that earlier, that was something that had come out through all the

testimony.

Right.

It didn't come out through direct.

Okay.

I had just said, hey, you guys were in a relationship together.

Yeah.

You guys had sex.

But then the prosecutor brings out the fact that it was in the jail.

Right.

Because I didn't want the jury to know about that.

But it came out anyway.

And was the prosecutor, like, was his intent there to try to make some sort of, I mean,

I know we've all heard the term gay for the stay.

Like, was he trying to make some sort of argument like your client wasn't really gay?

He just was gay in jail?

He may have been trying to do that, which is what I kind of anticipated.

That's why I wanted to ask the questions about what do you have to do in order to be classified

a certain way in county jail.

That was very smart of you, Miss JBG.

All right.

So the two witnesses, the two ex-lovers testified.

Yes.

And what was the next?

So the next person to testify was my client.

And what he did was take the jurors on a journey through what he did that night

and what brought him to Los Angeles Street between 5th and 6th.

Okay.

So he told the jurors that, first of all, he wanted to find a place to charge his phone

because he was homeless at the time.

And so he had to do this thing where he'd go to a certain liquor store and they'd let

him charge his phone up.

When he charged his phone up, he then decided to text one of his friends because he wanted

to get a little booty call that night.

Okay.

All right.

So he's riding, he starts riding around in the general area looking for this guy, this

friend.

He says he makes it to 5th and 6th and he stops and he speaks to some person that he knows

on that street who I wasn't able to locate.

And he talks with him for a second.

Then he continues riding.

And as he's riding by, he sees the people having sex on the corner.

And he said it was the victim and the Thai guy and the light skinned black dude.

They were having sex on the corner.

And he didn't really say it.

I mean, he didn't say anything out loud to him because he's kind of just wanted to

mind his own business.

But then he started to protest because he saw three guys jump out and start beating

them up.

And he heard them say, we don't want this gay shit in our neighborhood.

Now I have to back up for a second.

Another thing that I had one of his lovers or both of his lovers testified to was I said

earlier, his character, his character for peacefulness.

Okay.

And during trial, if someone is being charged with an act of violence, you can put on evidence

to show, no, actually, they have a character for peacefulness and they would never do something.

You know, it's not in their nature to do the thing that they were charged with.

And so both of them, both of his lovers testified to that.

You know, he stood up for the gays in the jail because I ended up coming out.

He wouldn't let people beat me up.

You know, he's very protective.

All those things came out during their testimony.

All right.

So he's doing his protesting by client by riding by going, hey, stop that.

Don't mess with them.

What's going on?

Stop fucking with him.

And he goes and he parks his bike somewhere on the block.

Right.

And he comes back and he sees there a woman, a couple of men, and he testifies that it was

a woman and two men that jumped out and did this.

Oh, okay.

And there was a woman that had walked by with an umbrella and she got in on the action

and everybody was screaming at the guy because he was, you know, sucking dick on the corner.

Okay.

So that's what he described happening.

And then he said he starts walking away because he sees the police coming.

He starts walking toward the police.

He gets to the police and this is all recorded on a body warm video.

He says, they're over there fucking and sucking on the corner.

Fucking to suck it on the corner.

So, of course, you know, Diego's why, you know, on cross.

Yeah.

Why is that the first thing you decided?

And I mean, that's your worst fact here, right?

That's the worst fact I had.

If your client is just trying to get some help, why is that the first thing he says?

Right.

Right.

So he did testify.

He says, I got up to the guy after they beat him up.

And before I talked to the police, I went over and I started helping him pick his stuff up.

So I'm picking up his wallet.

I'm handing it to him.

I'm picking up.

He had some money.

I handed that to him.

A couple of other things.

He was very earnest when he testified.

And there wasn't a crack in his veneer.

He's one of the best witnesses that I've ever had.

Really?

I mean, he won the case for you.

This isn't even, you're not guilty.

This, he, he was, he was wonderful.

All right.

So now it's time for closing, right?

I have to back up for a second because when the victim gave me that manna from heaven,

his answer, I came home and I said, husband, you will never believe what happened today.

He says, what?

What happened?

And I told him that the guy said he didn't know or didn't remember.

And he said, whoa.

And I said, yeah, I was really excited about that.

And I said, so, you know, in my closing, I want to kind of say something about that.

I'm going to say like, who the hell doesn't remember whether or not they were giving somebody

a blow job on the corner?

Who, who doesn't remember that?

Listen, JBG, you, you can't do that.

You might offend somebody in the jury.

And I go, nah, I have to ask that question.

I have, that is the, that is the whole reason why this case is going to trial.

Because I knew that he was doing something out there that made, you know, I knew that he

had to have been doing something that would make somebody jump out and do that.

Not only that, if you don't remember whether you're giving or getting a BJ, how is it that

you remember who beat the crap out of you?

So, so I was like that, that answer is like the fucking pinnacle to the entire case.

And I said, I have to say it.

I got to do it.

So, he says, well, I don't know what you're going to do.

I said, well, you know what?

I said, I'm going to say it.

So, you better figure out a nice way for me to say it.

Because I'm going to say it.

So, that was his job.

To say it with the victim, right?

Yes.

Okay.

Yes.

Because I had to argue it to the jury.

Of course.

So, in my closing argument, I have this formula that I kind of stick to.

And sometimes I change it around depending on whatever's happening in the case.

But I made my arguments about the inconsistencies of the witnesses who testify.

I tell the jurors, look, we talked about this in voir dire.

What affects the memory or perception of an event?

You guys told me it was alcohol.

You guys told me it was emotional stress.

You guys told me it was, you know, whatever the case may be.

You heard this guy testify that he had just broken up with his boyfriend.

Oh, that's going to affect the way that he sees an event.

You heard this guy tell you that he had, what, three, four, five, six, seven, eight drinks?

I don't know.

You heard him say that.

Oh, you know that's going to affect his memory or perception of an event.

So, and I just went down the line, okay?

Couldn't remember if he had oral sex on the street that night.

How many times do you have to have had oral sex on a public street

before you can't remember if you did it on a particular night?

And I asked the jurors that, and I looked at them in each of their faces.

I can tell you, for me, it's never.

I can tell you that a thousand times, and I'm sure the answer would be the same for all of you.

Okay?

Then, how drunk do you have to be to not remember having oral sex on the street in public on a particular night?

Right.

For those of you who drink alcohol, I'm sure you have your answer.

I know mine.

But I can tell you that even if I had too much to drink, I can remember for sure that I didn't do that.

Right.

Just said, if he can't remember doing something like that, how is he going to remember who beat him up?

How is he going to remember what happened that night?

How can you trust what he said?

You can't.

So, therefore, you got to throw this all out.

All of it.

They haven't made their case.

You have reasonable doubt.

Something along those lines.

Right.

Are the jurors laughing at all during your closing?

Oh, they laughed.

They laughed about some things.

Absolutely.

Absolutely.

Any objections from the prosecutor, or is he just letting you fly?

Nope.

Oh, there was nothing he could object to.

Judge is cool the whole time?

He was quite entertained, let's just say.

Okay.

So, he got not guilty.

Yes.

Talked to the jurors afterwards.

You talked to your client.

I did.

I'm sure your client was happy, right?

He started crying.

Started crying.

He started weeping when they came back with the verdict, which kind of choked me up a

little bit.

And I was very happy with the outcome.

So, that was.

So, he went home a free man.

He went home.

He went home to wherever that is.

All right.

Yeah.

Good job.

Well, and I feel like this is sort of an interesting case compared to, you know, your

usual ANG cases.

Because, I mean, what happened here is still tragic.

I mean, whether, you know, they're doing it on the street or not.

I mean, it really sounds like the victim in this case was a victim of gay bashing, you

know?

Oh, absolutely.

And you know what?

Yeah.

What happened was serious.

Right.

But it was like nobody took that extra step to look at who was being held responsible.

Right.

And I think that's maybe where the issue was here.

You know, it's like this conclusion was jumped to because you have this homeless man.

And, you know, I think homeless, the homeless population is very vulnerable, but also sort

of dehumanized.

Absolutely.

So, is this the right guy?

Well, who cares?

He's homeless.

This was a tragedy because he did get beat up.

This man got beat up by some assholes, but they were not my client and nobody took the

time.

And I think that was part of my closing argument too.

They did a shitty investigation in this case.

They didn't take the time to figure things out.

They were just like, oh, you're here.

You're here.

You're here.

Oh, you're going to jail.

Oh, wait.

There's keys in your pocket.

It must have been you.

It must have been you.

Well, what could the cops have done then?

I mean, they take your client to the scene.

I mean, it's not like the cops.

So, the cops are sloppy and what?

What could they have done?

They could have, for instance, taken the keys that they found in my client's pocket and gone

and checked the doors to check the apartment door to see if it was that apartment.

Or even had the witness himself identify.

I mean, you know what?

I know what my keys look like.

Right.

Well, no.

They believed him.

He said, those are my keys.

Oh, the victim did say that?

Yeah.

Yeah.

And I go, well, no.

Why are you just going to automatically believe that?

Did your client say, no, those are my keys?

Yeah.

Yeah.

He said, no, those are not your keys.

Those are my keys.

Did the victim live close by?

He lived within a mile radius.

Okay.

So, that's an easy investigation that could have been done.

That's super easy.

A quick yes or no answer.

Super easy.

That essentially would have made or sunk your case.

Super easy.

See, the thing I love, nah, I'm being facetious when I say I love this, but the thing that

police officers do, and I'm going to say these are the less experienced police officers

do, or the non-detectives, they pick who they think is good for it, and then they try to

mount all this evidence to make sure it fits, instead of looking at all the evidence and

see who it points to, right?

Because we know, like, it was that movie Murder on the Orient Express.

It was about Hercule Poirot, right?

That detective.

We haven't watched it yet.

Oh, well.

But you can talk about it.

But Hercule Poirot, he's a famous detective.

My husband doesn't let me see movies.

Oh, wow.

My husband loves movies.

Anyway.

Your husband edits this podcast, and no one's going to hear your screams.

No one's going to hear your cries, honey.

Help me.

Help me.

Help me.

But what I was saying was, Hercule Poirot is a very famous detective, because what he does

is, he's a French detective, and what he does is, he gathers all the clues, and he tries

and he tries to figure out from the clues that he has, who did what.

And people are so blown away by that whole concept.

And it's like, dude, that's just great investigative work.

That's the way the job should be done.

That's how it should be done.

And so these, you know, this dude, one of the officers had been on the force for like a

year.

And his partner was somebody who was just waiting to go home every night, because he had been

on the force for a while.

So they didn't care.

I got these bums out here.

I got these two gay bums.

Three.

I got two gay bums and a prostitute.

Fuck it.

I'm just going to arrest somebody and go home.

So JBG, last question.

Why did you become a public defender?

So I listen to you all's podcast all the time.

And every time I hear that question, I kind of think about it.

Think about what I would say if I was asked to be on the show.

Oh, that was actually really sweet.

I totally do.

And one of the reasons, well, first of all, I wanted to be a lawyer ever since I was 10

years old.

And my dad asked me when he said, why do you want to be a lawyer?

I said, because I want to help people.

Because at 10 years old, that's what I thought lawyers did.

All right.

So at some point, I'm interviewing with the DA's office.

Yes.

Yeah.

I actually clerked for the DA's office, by the way.

While in law school.

Dun, dun, dun.

Aw.

Yes.

Because, well, we won't go down that rabbit hole.

Anyway, so I clerked with the DA's office.

And I interviewed with the DA's office.

And they asked me why I wanted to do this job.

Why I wanted to be a DA.

And I said, you know, because I'm really interested in why people do things.

And that was a horrible answer, because they don't care why people do things.

And I realized that...

During the interview, did they say that was a horrible...

Or were they just...

No, I just...

I kind of knew that...

I was like, ooh, I probably shouldn't have said that.

But that's how I actually felt.

And I wanted to be a public defender anyway.

So it was kind of like, you know, it just kind of came out.

Right.

But I'm interested in why people do things.

I don't think that there's anyone out there who is pure evil.

I think that everybody on this planet who finds themselves in our system.

We're not going to say justice system, but in the criminal system.

The criminal system, as Nikhil would call it.

Something's happened to them in their life.

And I just feel like so many of our clients are...

They're indigent.

They're mentally ill.

I want to help people who are voiceless and who can't fight for themselves and who would have nobody...

Who have no one else to do it for them.

That's what I want to do.

I've been told by people that I have a huge heart.

And I have a very soft spot in my heart for the homeless.

I mean, it breaks my heart to see it.

All right.

Well, thanks for coming on the show today.

I appreciate it.

Thank you for having me.

I'm so excited.

Thank you.

And I think we'll be having you back again.

Oh, thank you.

I don't see how we wouldn't.

I know.

We kind of...

I already know it's going to happen.

So, thank you, JBG.

Thank you.

Okay.

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

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

And guess what?

We have another Not Guilty story coming your way next week.

Because we public defenders fight injustice every single day in the American criminal system.