The Wimbledon DNA Cross – When a Rookie Defender Serves an Ace

Doctor, knowing all of these things about all of these problems, maintaining preservation of evidence, maintaining the scene, all of these things that have come out, you agree that the results of your tests are, I don't know if I use the word, invalid or some verbiage to say that it just doesn't hold up.

And rather than just give me a yes or no, she totally blew my mind by actually answering, saying, based on all of that information, had I known it, I would not have recommended that these samples even be tested.

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.

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

My name is Dallas Gutman. I'm a public defender out of Cincinnati, Ohio.

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

It used to be on a day-to-day basis, but now it's like we see each other in the courthouse every once in a while because McKay moved divisions.

She moved up in the world not that long ago.

Dallas did too, but we moved laterally in different directions.

I guess so.

Is that possible?

We see each other, but in different capacities.

So this is our main time to catch up.

Don't worry, listeners. We still see each other. We're still besties.

More importantly, we're here today with Jared out of New Jersey with a crazy not-guilty, pretty complicated case.

Jared, do you want to introduce yourself?

Sure. My name is Jared Weiss.

I'm an attorney operating a solo practice in primarily Union County, New Jersey, which is about 25, 30 minutes outside of New York City.

New Jersey is a wonderful place.

We are more than just Sopranos and tomatoes.

When you say tomatoes, I mean, I don't think of tomatoes when I think of New Jersey.

Yeah, honestly, me neither, but I did let it ride.

Do you mean just like Italian tomato sauce?

No, there is some notoriety for Jersey tomatoes.

And as part of our publicizing how wonderful we are, we talk about Jersey tomatoes and Jersey corn.

And people apparently think that's a big deal.

All right.

Well, on that note, let's get into it.

Sorry, I didn't know we'd start talking about vegetables.

Now New Jersey is going to be known for tomatoes, corn, Sopranos, and Jared.

Jared, are you a public defender?

So I'm a pool attorney, which means that I have a private practice.

I'm a solo practitioner, and I am appointed through the PD's office in conflict cases, messy cases, multiple defendant cases.

I also do work as a public defender in our municipal courts and have been doing that for the entirety of my practice, which is almost 19 years now.

They handle those cases on a local level with no jury, judge bench trials for everything, and those are on a town-by-town basis.

But the case we're on today is a felony, right?

Absolutely.

A big one.

A big one.

So tell us about the charges.

So we have a two-defendant case with an indictment that contained 18 counts, eight counts of first-degree robbery, nine counts of conspiracy to commit first-degree robbery, and one count of unlawful possession of a weapon for a BB gun.

You said that it's two defendants.

Is your client charged with all of those?

Yes.

Okay, so they're both charged with 18 counts each.

The co-defendant was not charged with the gun, but for the robberies and the conspiracies, they're identical.

Did you say a BB gun?

Yes.

What?

A very, very frighteningly looking BB gun that if you didn't know any better, you would have thought was a 9mm.

What is the vulnerability to jail time your client has?

What's your client facing here?

Life.

If each first-degree count carries a mandatory minimum 10 years up to 20, so multiply that out by 8 for each first-degree robbery, it's a life sentence if he's convicted and given consecutive terms.

And that 9th count, that conspiracy, can you say more about that?

The way that the case was presented to our grand jury was that each robbery had both the official act and that it also had a conspiracy to commit robbery, that my client and the co-defendant conspired to commit that particular robbery.

Then there was a global conspiracy count that said the two of them conspired to commit all of these robberies.

What does the state have to prove to convict your client of those charges?

It's a theft with threat of force and either use of a weapon or a simulated weapon.

Use of a weapon or a simulated weapon.

Yes, so that would include if you're wearing a hoodie and you have your hand in your pocket or you're holding your hand and your phone and it creates the impression that a reasonable person would think that it was a weapon.

It is a simulated weapon that elevates it from a second-degree robbery to a first-degree armed robbery.

So it definitely includes BB guns?

Yes.

Especially ones that look similar to 9mm.

So this is a first-degree armed robbery?

Yes, all of them are.

How did you get on this case?

The robberies occurred in the beginning of 2021, so we were still coming out of COVID.

And I had been doing this pool work for a few months, and I was doing shopliftings and drug possessions.

And I got a call from the deputy saying, we need you on this new case.

The client is in custody.

He surrendered himself.

It needs to be assigned.

We're happy with the work that you're doing.

Are you interested in getting involved in what they called a beast of a case?

And I said, do you think I'm ready for this?

Because I didn't know if I was ready for this.

And even now, I'm not sure I was ready to take it.

But I said, if you're comfortable and you think that we're good to go, then I'm going to say yes.

So let's talk about your first meeting with the client.

You get on the case, right?

They ask you.

They say, hey, we want to put you in.

And you say, are you sure?

They say, you've been training your whole life for this, Jared.

It's your moment.

Now you've got to meet the client.

So do you go – is he still locked up when you meet him for the first time?

Yes.

And it was definitely a put-me-in-coach-I'm-ready-to-play sort of moment.

Yeah, that's what it feels like.

Looking back on it, yes.

Yeah, and you know what, Jared?

I'll tell you this, not just because it's not guilty, but you were ready.

Okay, you were ready.

Get Jared off the bench.

So the client had been arrested and had been released under our version of bail reform.

He was then charged after the fact with all of these robberies based on subsequent investigation.

He was taken into custody by surrendering himself to law enforcement.

And the first meeting that I had with him was on Zoom from the jail.

Was he initially locked up on something different?

The night of the eighth robbery, he was arrested along with his co-defendant and his co-defendant's then girlfriend.

They were incarcerated and charged with possession of the BB gun,

which at the time they thought was a real firearm.

He was then released and he was out.

And then he was charged with all of these robberies after the fact, probably about a month later.

Okay, and your first meeting with him is on Zoom.

So what is that like?

What is he feeling after being charged with 18 counts?

One of the things that I learned very quickly in meeting him was that he was the strong silent type.

He was never a talker.

He was never chatty.

He was very straight and to the point.

And I say that he was as respectful and polite and courteous as could possibly be.

Almost hit every moment of the three years that I've known him.

And it was just like, am I going home or am I sitting?

That was his first question.

Yeah.

Sometimes I think it's easier to talk to those kinds of clients about the charge and about how serious it is.

Because you don't feel like you have to sugarcoat anything.

Like you shouldn't anyway.

You know, some clients you have to handle a little bit more delicately.

But I appreciate the clients that you can just be super real with.

And they understand what you're talking about without getting too emotional.

Yeah, and he was a little older.

So he's in his early 30s.

He had one prior felony conviction from a few years earlier when he was probably in his mid-20s.

So he definitely had more maturity than perhaps some of the 18 and 19-year-olds that we see.

He had a young child that had just been born.

He was employed.

He had a very supportive family.

But his primary concern right from jump was, am I going to sit here or am I going to be able to fight this from home?

Did he ever get out to fight the case?

Somehow, I was able to convince the judge that he was not a flight risk, that his criminal history was limited.

That the proofs against him were not overwhelming.

In fact, that there was serious questions with some of it.

And that he could be released into the community on monitoring.

And he would come to court.

And he would follow pretrial release conditions for home detention.

Wait, so you fought eight aggravated robberies from the outside?

To start, yes.

For the first eight months of the case, he was on the street.

Okay.

He was on home detention.

He was coming to court.

We were still kind of picking up the pieces from COVID.

So, the courts were very, very scattered.

And there was a backlog.

And his case was considered brand new.

So, it did not move fast at all.

His co-defendant was helped.

He was incarcerated.

And that did keep things moving.

It probably would have moved even slower.

But for the fact that his co-defendant was in custody.

And what was his relationship with the co-defendant?

It was his cousin.

I want to talk about what were the allegations against your client?

There were multiple jurisdictions involved.

Three different towns.

They all border each other within this county.

Eight separate stick-ups.

Gas stations, 7-Elevens, a liquor store, a hair salon, over the span of approximately three weeks.

There was an investigation that ultimately led to the identification of a car that they believed

was involved in more than one of these.

And they issued a bolo, a be-on-the-lookout, throughout the county.

And on the night of the eighth robbery, law enforcement found the car parked in a gas station.

Not a gas station that had been robbed, but just a gas station.

And called in the entire universe, who then swarmed the vehicle and arrested and identified my client, the cousin, and the cousin's girlfriend who the car was registered to.

And that was the first, that's the initial reason that your client was in jail, because of the BB gun?

Correct.

And then when they went through the investigation, they put more charges on him, basically.

Correct.

They had suspicions from the moment they pulled him out of the car that he and at least some of the people in that car were involved in these robberies.

They weren't necessarily sure who and for which ones, but that some of these occupants were involved because this car was found at least three of them.

What did he say about the charges?

He was not necessarily inclined to share much in the way of details.

He just wanted to know what they had against him, what we had to combat it.

So it was never a discussion about, hey, I have an alibi for this thing, or this is all a big misunderstanding.

Like, none of that ever happened.

He just didn't want to go down that path.

And I figured out pretty quickly that if he didn't want to go down a certain path, just don't, because you were just going to kind of hit a wall.

So at this point, what do you think about your case?

I was absolutely taken aback at the amount of material that was being thrown at me and trying to digest it and sort it all out required just a lot of time.

Because it was multiple dates, multiple towns, multiple places.

There are multiple reports from each town.

And trying to organize it took forever.

And staying fresh and staying up to date on which one was which and which thing happened at which offense and which time was something that I had to keep doing up to and including the trial.

And when you say the amount of information, are you talking about discovery?

Yes.

What kind of discovery did you get?

So I got standard police reports written from at least one, if not two or three officers for each case.

Because they were in different jurisdictions, every town obviously has its own way of report writing.

So they all looked a little different.

They all said things a little differently.

But then there was body-worn camera of every officer at every scene.

How many hours of body-worn do you think that you watched on this?

Dozens and dozens of hours.

Now, by the end, I was able to skip and accelerate some of the review.

You've seen one robbery investigation.

You've seen them all, right, Jared?

There were pieces of body-worn camera that were huge in this case, but there was a tremendous amount of footage that was unnecessary or superfluous.

And on top of the body-worn camera footage, it was also the surveillance footage from seven of the eight stores, along with cameras from street poles and other affixed city CCTVs.

What parts of the BWC were huge?

One of the issues that comes up during the trial has to do with evidence recovered on the night the vehicle is stopped and evidence is found in the trunk of the vehicle.

And what law enforcement was able to do quite fortuitously for them was enter the vehicle based upon the smell of marijuana.

And the timing couldn't be worse because New Jersey, in 2021, decriminalized and made recreational marijuana illegal.

And as part of the decriminalization law, the new statute said police could no longer use the odor of marijuana by itself as a basis to enter the compartment of a vehicle.

Oh, must be nice.

I love that.

Now, we have all kinds of new reasons.

I know.

Tomatoes, corn, sopranos, and you can't use the odor of marijuana to search.

They find new reasons now to search the car.

Oh, yeah, yeah.

The furative movements have never been more noticeable.

And the law changed on February 22nd of 2021.

And this search occurred at 10.50 p.m. on February 21st.

No.

The day before?

An hour before.

God damn.

Was it a traffic stop or were they at a gas station already?

They were in the parking lot of a convenience store at a gas station where they were just loading up on gas.

And some narc called in.

Someone saw that car and the next thing you know, they brought the entire department and surrounded this vehicle at gunpoint, pulled everybody out, and miraculously detected the odor of burnt and raw marijuana.

Always.

Add on to all of this, how much marijuana do you think was recovered from the actual car?

0.0 grams.

Close.

Half a gram.

In multiple places.

Like, when you aggregated it, it was half a gram.

So that's like nothing.

It's a little leaf here and a little stem there.

So that was – so, sorry, I got a little sidetracked.

You had asked about the discovery and –

So you said some of the BWC was huge.

And so it was –

Yes.

That – the search of that car was huge.

Correct.

And we used it at a motion to suppress, which was denied.

But it also came out at the trial because it was brought out that the officers who were conducting the search of the vehicle had first been ones to pat down my client and his cousin and the girlfriend.

But the officer who did the pat down and who started going through the inner compartments, the glove compartment, the consult, the seats, looking for the marijuana, was doing it without gloves.

And he then expands his search to the trunk where he finds some clothing and he finds this BB gun in a bag.

And accidentally or otherwise, he decides that he's going to go through this trunk and start touching all these items and removing these items without gloves on.

And that was a tremendous piece of evidence that we used at the trial.

And they were trying to say that your client's DNA was on them.

And I guess we'll get into this later.

But your argument was that it was a tainted piece of evidence.

Yes.

The word that I used probably about 75 times over the course of testimony and closings was contaminated.

Oh, I like that.

That gets in people's heads.

Everything was contaminated.

Yeah.

I thought it was a great word.

It is.

And it was intentional.

I was like, I'm just going to keep using the word contaminated until someone stops me.

What else did you see on the surveillance?

What did the surveillance show?

Crystal clear.

No audio, but perfect 4K video.

That didn't show much because in every one of the robberies, both individuals are fully masked.

There is never at any time an ID made of either one.

You see one individual holding what purports to be a weapon.

The other individual goes to the register, removes cash.

And in one instance, I think lottery tickets.

And they're out of the store in less than three minutes from start to finish.

So each instance involves two individuals.

That's consistent?

Yes.

And they're wearing standard clothes that late 20s, early 30s males would be wearing.

We're talking about track pants, hoodies, sweatshirts.

One thing is, there's nothing remarkable.

You got to be comfy when you're committing a robbery.

You can't be wearing jeans or anything too restrictive.

Mobility is key.

It's in my handbook.

Yeah.

Wear comfortable pants.

Exactly.

All right.

So they're identifiable as male, but that's it?

It's two males?

Two males.

Okay.

And when the car is stopped, there's three people in there?

Yes.

It's client, cousin, and cousin's girlfriend?

Correct.

Who's the car registered to?

Girlfriend.

Girlfriend.

Okay.

So were they saying that girlfriend was like a getaway driver or something?

I think at first they thought she was an active participant.

Okay.

Was she charged with anything?

She was charged with the gun initially, and she was detained on that gun initially, like

everyone else was.

Because the car is registered to her and the gun was found in the trunk?

So all three were charged with the gun.

All three were charged with marijuana possession.

But no one was charged with a robbery or any other offense at the time that the car was

stopped.

Was there anything else?

Was there any other type of discovery that you got?

Body mourns, surveillance, pictures from license plate readers.

The DNA came much, much later, but eventually I got a whole lot of DNA evidence, and much,

much later I got these reports from a police officer proclaiming himself as an expert in cell

phones.

So in that sense, they're getting the cell tower data just as technically kind of some form of public

information and without a warrant for a search?

They did end up having to get warrants based on none of them giving consent for the extraction.

And what does that cell data show when you get it?

The data comes in different forms.

It shows both calls, text messages, and on one of the phones, not my client's, use of cell phone

data.

So when your phone is just running in the background or you're using Instagram, you're using cell

phone data as long as you're not connected to Wi-Fi.

So it's going to hit towers in the general vicinity of where you are, and the cell phone carrier

is going to keep a record of it.

And eventually you can get raw data in the form of a log that shows dates, times, and places,

as well as GPS coordinates for the closest tower to where the phone would have pinged off of.

It's not closest necessarily geographically.

It's closest as in which tower had the strongest signal.

Did the data show your client near the places that were robbed at the time that they were robbed?

For four or five of them, his phone is not being used and is nowhere near anything.

For a couple of them, yes, it is in the general vicinity of these robberies.

However, as we found out later, it was all done in very close proximity to where he lived.

And how close are these locations to each other?

A couple miles.

So even though it's three towns, we're not talking about a large geographic proximity

between where all of these took place.

Maybe seven, eight miles, if you were to draw them in a circle, for all of them.

So you could be home on your phone, not on Wi-Fi, and your phone could ping off of a different

tower at any time.

Correct.

So you were saying that although his phone pinged near some of the places that were robbed,

he could have been home at the time.

Exactly.

Because one of the things that the expert had to concede was that just because a tower is

geographically close to a location does not...

First off, it doesn't mean you're there.

It just means a phone is there.

And it doesn't mean that your phone is hitting off of that tower.

It just means that your phone is using the best way to connect, which may be a tower separate

from what's the closest one.

Okay.

And we'll get into that a little bit more when we talk about the trial.

So after you have gotten all this discovery, how do you feel about your case?

I want to know what the plea offer is.

So not good?

Is that not good?

Was there a plea offer?

Yes.

What was it?

The initial offer at my client's arraignment was a 20-year sentence for multiple first-degree

robberies and a conspiracy.

Compared to life, I mean, that's a long time, right?

But compared to life, it's less.

So what are you advising your client?

At the very beginning, it was made clear to us that these plea offers were contingent, meaning

either they both take them or neither of them gets to take them.

How does that work?

Can you say more about that?

The prosecutors in this jurisdiction and others here locally say,

We control whether or not cases are going to get severed, whether or not cases are going to proceed against one defendant against as opposed to another.

And typically, the only time cases get separated and contingency is broken is when one defendant agrees to testify as a state's witness or give a proffer or a statement against the other.

So how does that work constitutionally?

Because your client has a constitutional right to a trial.

They have a constitutional right to know the state's offer.

And they are allowed to plead guilty if they choose to plead guilty.

And so is the caveat just that the state's offer itself is contingent on, I guess, the consent of the co-defendant?

He has a right to plead, just like he has the right to take the case anywhere he wants it.

But the sentence recommendation is contingent.

If he wanted the 20, and that number did change over time up to and including during jury deliberations.

Like it got better?

It got better.

Wow.

It got better during jury deliberations.

That's messed up.

The only way he could take a number at any time up to and including jury deliberations was if both of them agreed.

Did he want to do a plea?

There were discussions about numbers, but they were very short, primarily because his co-defendant never wanted to accept any number that was in double digits.

So in this case, you quickly realized that the co-defendant did not want to plea.

And so after that kind of dissolved, now you're going to trial.

So what are you thinking about your case?

To say I was overwhelmed is probably the understatement of the millennia because a couple things that happened.

We litigated this motion to suppress unsuccessfully.

We went through five attorneys for the co-defendant, including his trial attorney.

This attorney is someone who is kind of a legend in the county, has been doing this for 40 some odd years.

And he was asked to come in at the very last minute.

So the trial started in October.

He was appointed in August.

Wow.

With all that discovery.

Yes.

Did he even review it?

Some.

I think.

I don't want to throw him out there like that.

No shade.

No shade.

He's a busy man.

No, no, no.

The man is a legal genius.

If I walked into a big pile of shit, he walked into a city-sized pile of shit.

Yeah.

In being told, here is all of the material.

You have two months to learn it.

So he really relied on you then, I'm assuming.

In terms of background and knowledge of the case, I knew it better than everyone because we had gone through two judges.

We had gone through three prosecutors and the co-defendant had gone through four prior attorneys.

And the whole time, it was just me.

Yeah.

You're the only consistent thing in this world.

Just Jared.

Just showing up every month.

Just show up every month for the status conference and say, what's going on, everyone?

And at that point, had the judge set a hard trial date, like, hey, this is not going to continue it again.

I don't care if you fire your attorney.

I don't care.

I don't care what happens.

This is going on this day.

Yes.

Okay.

So that's why he's locked into that timeline.

Yes.

And because they were incarcerated, there is a requirement that they be tried within a certain time.

That time can be extended by either court order or by consent.

But eventually, it gets to a point where they just can't hold you any longer.

Your client gets locked up pre-trial again.

Yes.

Why does your client get locked up again?

He gets arrested on another robbery.

Oh, okay.

Are you, do you represent him on that one?

I am assigned to that one as well.

Okay, but that's not, that's not related to this one.

Correct.

While on home detention, it's alleged that he goes into a pharmacy and commits another

armed robbery with a knife, not a gun.

But he is, again, arrested.

I could have given two shits about the other robbery.

Because in the scheme of things, it meant nothing compared to the monumental task of trying the

eight robbery case.

But it unfortunately led to him being taken into custody.

And that's where he remains throughout.

So coming into trial, as far as pre-trial litigation, there was the motion to suppress.

Were there any other motions?

Did you consider a motion to either sever the charges from each other and or sever client from

co-defendant?

There was never discussion about severing the defendants.

There was discussion about moving for severance of the cases into individual blocks.

The judge who had the matter first, who was subsequently reassigned, and then the new judge who took

over at the very end and then took the trial, were not going to sever it.

And my co-counsel and I talked about it.

And he said to me, and I accepted his wisdom on this, was, I don't think severance is the way to go.

But I think a case is only as strong as its weakest link.

And from what I'm seeing, there are problems with several of these cases that if we can point those out, maybe the chain starts to just collapse.

Yeah, that's a scary call because you got a lot of charges there that could make your client look bad.

But I think your co-counsel's right, though.

If there's a lot of issues with one or two of the charges, then the whole thing could unravel.

Was there anything else you did to prepare for trial?

This was going to be my first jury.

This is a crazy first jury.

I know. Can you imagine? Oh, my God.

This is wild.

My first jury was like a simple OVI.

This is insane for a first jury.

Go, Jared.

Raise your hand if you've never done a jury trial after 18 years.

That would be me.

You were like, listen, I'm getting my jury experience come hell or high water.

Give me the hardest case ever.

I'm doing it.

I'm going to figure out a way to do it.

Good for you.

And part of it was not the idea that I couldn't do it because I tried dozens and dozens of cases in a variety of different courts.

I just never had 12 people sitting in a box staring at me.

Well, what were you worried about?

Like what was the what were you anticipating going into your first jury?

Oh, I thought I was going to have a seizure or some sort of nervous breakdown in front of them and some sort of inability to communicate, inability to connect with them.

And the idea that somehow I'm going to have to put on a performance to a jury was as overwhelming a thought as could be.

Yeah.

You took on a lot for your first jury.

The co-defendant litigation.

What happened with that motion to sever?

I wanted to be with co-counsel in the sense of it was a safety net.

So if we were going to go into this, going into it with someone with that experience, even if he didn't necessarily have the same knowledge of the file, somehow that dynamic was going to mean that between the two of us, we were going to put forth a good presentation.

Was there a concern that the defenses were divergent, that your defense would be it was the co-defendant?

It did come out at the trial in limited form that the proofs against one were not the same against the proofs against the other.

Who was worse?

The co-defendant.

The difference being primarily the car is registered to his girlfriend and the cell phone data for his phone included data, whereas my client's cell phone carrier did not have records of data use, just phone use.

You mean like text messages and calls and like specific things that people said?

Just the existence of the phones and then the locations that were being used to pin off the towers.

The co-defendant's phone was pinging towers just from data use.

And we did have a pretrial motion during jury selection as to the admissibility of this data on the co-defendant's cell phone because his Instagram was logging something continuously for every second of every minute of every day that they were claiming these crimes occurred.

That's so crazy how you could be tracked by your phone.

I mean people just don't think about it.

We use them all the time.

They're in our pockets and they're such a valuable tool for the government to surveil us.

And it's so easy for them, at least here, to be able to get all that data because the phone carriers, even though they don't keep it indefinitely, they make it readily available to law enforcement as soon as they get the subpoena or the warrant.

So unless the phone is powered down or is in airplane mode and not connected to any sort of internet connection or data stream, it's going to ping.

Every time you open Facebook, anytime something's running in the background, it's pinging.

That's good to know.

For anyone listening to this podcast who's thinking of potentially committing a crime.

Leave your phone at home.

Just leave your phone at home.

Put it on airplane mode.

Yeah.

And do your thing.

Agra.

Wear comfortable pants.

Oh, yes.

That's all the advice we have for you.

Yeah.

Comfortable pants.

Leave your phone at home.

Is there anything else you did to prepare for trial?

I started prayer.

A meditation practice.

Went back to church.

I definitely started trying to project into the world the idea that, number one, I could do this.

So trying to eliminate that self-doubt that has permeated me for 44 years.

But I was trying to at least convince myself, even if it was baloney, it's like, you got this.

You can do this.

You're going to be able to get through this.

You are going to get this.

And you're going to do a good job.

Yes.

You have a really tough case to work with.

And maybe this was the perfect case to try.

I appreciate that, Jared, because I think on this show, I haven't heard that much.

But I don't think people talk about that that much.

Like how scary this job can be because, I don't know, it's just a lot.

It's very vulnerable.

Being in front of a jury is vulnerable.

The fact of feeling like you have your client's liberty and life in your hands is vulnerable.

There's, at least for me, a lot of anxiety leading up to trials.

I do the same thing.

I do, like, I'll envision the jurors saying not guilty, you know.

And I go through, like, what I call a trial psychosis.

Like, I really go through it when I'm in a jury.

I think a lot of people can relate to that.

And probably in a bench, too.

They're just so much shorter that it's over quicker.

And I appreciate people being open about that because it is very scary.

And I had no problem telling the world, like, I'm scared shitless, but I'm going to do it.

I'm going to make this happen.

What are you feeling like the day before trial?

Panic, but also anticipation in a good way.

Like, we're ready.

We've done everything we need to do.

Let's go.

How's your client feeling?

Stoic.

Stoic.

So the whole time, you're really not getting that much feedback from him.

He is asking questions.

He has reviewed everything.

He has taken notes.

He has written things down.

He's pointed things out that we had missed.

He definitely raised some things that were developed as far as trial strategy.

But he was never the one, as I said, that I would just sit with and we would just talk.

So we had developed very quietly a very trusting relationship where he felt comfortable that he knew I was doing what he needed to do.

Because I never at any point said, you got to take a plea or you need to turn state's witness or we need to gang up on the co-defendant and convince them to take a plea.

It was just, if this is the path that they're bringing us on, we're going to be ready for it.

Yeah, I think clients trust that more.

I think the ball just kind of has to be in their court.

It's their life.

We were ready.

We still had to litigate some of these pretrial issues.

But going into jury selection, I was most panicked about who I actually wanted to have on this jury.

Okay.

So what kind of jurors are you looking for?

I had no idea.

I had no idea.

I had no idea.

This is your first voir dire too.

So like, how do you prepare for voir dire for the first time?

Like, what are you, what's your plan?

My plan was to ask as many colleagues and people that I trusted in my circle, from their experience, good and bad, what did they find to be the best type of juror for a particular type of case?

And what was the feedback you got from that, that recon mission?

You want smart people.

You want people that are going to dig under the surface and not just accept a police officer just because they're a police officer, that sort of stuff that we all see and is now kind of commonplace.

We knew there were going to be a lot of witnesses.

I was looking for people that I knew could still could stay attentive because I was afraid of sleeping jurors, sleeping through all the good stuff that I knew was going to come out later.

Right.

We had a problem just based on the amount of time that we knew this trial was going to take.

How long did it go?

We had nine days of testimony plus a day for summations and the jury charge.

And it took three days to pick a jury.

Okay.

And they deliberated for three days as well.

What's that, two weeks?

I'm not good at math.

Because our court meets or our juries meet on Tuesdays, Wednesdays, and Thursdays only.

So from start to finish, this took almost seven weeks.

You said seven?

Seven.

We started in mid-October and we didn't finish until the Monday of Thanksgiving.

That's hard because it's like, especially if you are, maybe once you're in it, you're not like as stressed, but you're just like, can we just power through this and be done?

Back to voir dire.

First, let's talk about the state's voir dire.

We do things very differently from many of the jurisdictions that I hear on the pod.

voir dire is entirely directed by the court.

Entirely?

I've heard of this.

Yes.

Yes.

There is a questionnaire given out to the jurors.

When they arrive, they are pre-screened, but they are given a 20-question questionnaire.

And each juror is brought up to a table that's set up next to the bench.

And the prosecutors, defense attorneys, the judge, and the prospective juror are all sitting at that table.

So you don't ask any questions?

We're allowed to ask follow-up based on their answers.

To the questionnaire.

Do you have an opportunity to kind of expand on any of this or just ask questions?

We can ask for clarification.

We can ask for clarification.

We can ask them to get into some more detail.

But in terms of actual individualized follow-up, no.

Did you feel based on that process that you knew who you were talking to as jurors?

Not even close.

Yeah.

These were just strangers.

It's hard with attorney-conducted, Vaudeer, to know who you're talking to.

We're only given that bare minimum to start.

And there's only a very, very small amount of expansion upon what's contained within the questions.

So you're just going on vibes, right?

Totally.

Total vibes.

And when you don't have any vibes to compare them to, you're just like, I think you're good.

I don't know.

There were a ton of people that were excused by consent based on the amount of time that we told them it was going to take.

Did they estimate seven weeks?

We had estimated six.

Well, if I'm a juror, I'm like, no, I'm not doing this for six.

Yeah, what percent of people were like, yeah, I'm cool for six?

85% of people got out just based on the schedule.

Yeah.

And then you're left with people who are like dying to be on a jury who are dangerous.

Which is bad.

They want to convict someone so badly.

And I totally forgot to bring this up before in terms of funny things that happened during this case.

Guess who gets a jury notice to appear on my case?

My sister.

No.

Really?

And I went, yes, obviously it's a coincidence and there's no way you're going to be on the panel, but you're going to have to come in.

They're going to make you sit because I'm not going to call you out in the middle of 50 other people.

Wait, why wouldn't you?

Why wouldn't you be like, judge, listen, 100 people back is my sister.

Just let her go now.

I alerted the judge in advance and I said, that's my sister in the last row.

And she goes, all right, we'll bring her up in a little bit.

So this wasn't like a sibling rivalry thing where you're like, no, if I have to be there, you have to be there.

I'll tell her when you get up.

Okay.

That's great.

Yeah.

And how's this judge?

Have you had experience with this judge before this trial?

Yes.

She was relatively new to the bench and relatively new to criminal.

However, she was a former PD and I think we were her second jury trial.

So it was my first, her second, at least as a judge.

So she was generally a friendly judge?

She was wonderful.

Good.

It is nice when you get that from a judge.

Why was there three judges?

We never got to the bottom of this.

There was only two.

Oh, two.

Sorry.

Why were there two judges?

Just routine reassignments.

They can be reassigned essentially at any time for any reason.

So no judge had recused themselves off this case?

No.

Did you like your jury at the end?

No.

But my co-counsel did.

Okay.

And I thought, if he knows and he's cool, then I'm going to be cool too.

What made you not like them?

We had too many individuals who were older, who had prior jury service, and just gave off,

at least to me, the impression, even if they didn't concede it, that cops were going to

be forthright.

So that's it for voir dire.

Next is opening.

So talk about the state's opening first.

They tried to keep it short, but you couldn't keep this kind of fact pattern short.

Yeah, no way.

Because you had to talk about eight different events.

Yeah.

So it was long and tedious, and not to say it was unimpressive, but it started me nodding

off.

Yeah, it's probably boring.

I mean, I just think you got to keep jurors engaged a little in the beginning, because they

haven't heard anything.

And is the state's theory just quantity?

They're just like, where there's smoke, there's fire?

We're just going to pound as much onto you, and you're going to have no choice but to just

put these two gentlemen at the scene of each of these locations.

And despite any holes or missing pieces that may come up, you can only come to the conclusion

that it's them, and it's them for all of them.

And is there any differentiation in the theory of prosecution between the co-defendants?

Are they saying they both did all of it, everything together?

Yes, they both did everything together.

The co-defendant being the one who holds the gun, and my client being the one who goes into

the register.

Every time?

Every time.

All right, let's talk about your opening.

So I actually went last.

Oh, right, because there's three people.

So your co-counsel went second.

And did you guys coordinate?

Were you like, what are you going to say?

Yeah, did you coordinate a theme?

Or were you like, oh, that's good.

I'm going to say that.

You're just scribbling notes during his opening?

Not guilty.

That's a good one.

I was doing no contest, but that's way better.

We did for closings, but not for openings.

And his opening, I think, is the same opening that he's probably used for 40 years.

Shorter, much more succinct, and direct.

Yeah, I think that's smart.

That's a good approach to opening, I think.

Okay, now you.

I have no idea what I said.

No recollection of it.

I ended up going up there with a legal pad that had six or seven bullet points.

Couldn't tell you what they were.

Couldn't tell you what I said.

Couldn't tell you how they responded to it.

I was just trying to stay on two feet.

I was trying not to have a mistrial declared at opening.

I know that it wasn't good because I had a sheriff's officer say to me afterwards,

like, that wasn't so good.

Oh, man.

What do they know?

Take it back up.

How about they back up?

Yeah.

Can I beat him up for you?

Yeah.

Name names.

I was trying to get some reassurance for myself.

That was the wrong guy to go to.

And it turned out he was the wrong guy to ask.

I think the exact phrase he used was, I've heard better.

Oh, come on.

Just lie.

And they said that it did come through more so as the trial went on.

But at the beginning, I was very apprehensive and it came through that way.

Well, you know what?

Give yourself credit because that's your first time in front of a jury.

Yeah.

Really.

Like, you're not really doing voir dire in the same way other people do voir dire, which

is performing to a jury, basically.

I mean, I guess other people.

That's how I do it.

So, yeah, I think, you know, there's a lot riding on that moment.

Of course, you're going to warm up into it.

Yeah.

And you can't win a plea and you're trying this case and you pull up.

So, there.

Opening's done.

Rocky Road.

We got through it.

Got through it.

How many witnesses are there in this trial?

45.

Whoa.

Oh, my God.

No wonder it was seven weeks.

There were 41 states witnesses and four defense witnesses called by co-defendant.

All co-defendants.

So, you called no one.

I called no one.

Is it important to go through every single witness to tell the story?

Absolutely not.

So, who are we going to talk about now?

Who are the heavy hitters?

Let's do a roadmap and then we'll go into it.

For every single case, the state called a victim at least two police officers.

So, just for that, you had 25.

Holy moly.

Jesus.

Then you had the experts.

So, you had the cell phone expert, the DNA expert, the crime scene unit, the chain of custody experts on the DNA,

the license plate reader, the license plate reader, it totaled up to 40.

If you boil it down, only maybe four or five of them actually mattered.

So, let's talk about that four or five.

And we're not talking about every single alleged robbery individually, right?

We're talking about them kind of as a whole and the issues with the state's evidence.

Yes.

Okay.

Cool.

So, who in this overview did the state call first?

DNA expert was first.

If we're using that pair down.

Yeah.

Just based on the way that they could line up their witnesses, everything was scattered.

Okay.

So, we were bouncing from one robbery to another depending on the day.

So, we would have a victim from robbery number three, a police officer from robbery number six, a detective on robbery seven and eight, all in the same day.

Why would they do that?

That sounds like the dumbest way to try a case like that because you're just going to confuse the shit out of the jury.

And it did help us.

I think they had no choice.

Oh, because of availability?

Availability.

I think in a perfect world, they would have called everyone for robbery one, everyone for robbery two, maybe interspersed in some of the others.

But they couldn't do it that way.

So, in your prep, are you just ready to go on 42 people and it's just Russian roulette who takes the stand?

We made a request at the very beginning and our trial judge said it was more than fair that we needed to know day before, before we left for the day, barring extraordinary circumstances, who the intended witnesses were for the following day.

You're not like first question is like, who are you?

Right.

Which case are you here for?

And what's your relation to this case?

Yeah.

That's hard.

All right.

So, how did you eviscerate these witnesses?

Yeah, let's talk about how you eviscerated the DNA expert.

So, we knew that the samples had been contaminated by the officer who had gone into this car at the time that my client was initially arrested.

And we played his body-worn camera earlier so that the jurors could see him going into the car and actually touching everything, pushing everything around, and reaching all over the place.

They had brought the crime scene unit person in already.

They had brought in the tech from the lab who was responsible for getting the samples prepared and brought over.

But it really wasn't until the DNA person herself came in that we really started to make things happen.

This person works at our county's lab.

We actually have our own forensic laboratory for the county.

And she is the person who comes in on every single DNA case.

And she reads from a script.

And everyone knows what she's going to say, except me, having never seen her.

Everyone in the whole county knows what's going to stick, except you.

Except me.

I know who she is.

I could pick her out of a lineup.

But I couldn't necessarily tell you what she was going to say.

So the victims, the quote-unquote victims, we call them prosecuting witnesses, and the police officers, they testified to the surveillance and the body-worn camera.

Yes.

And this DNA witness is here to link the clothes that the jury saw in the surveillance video to your client because they were found in the trunk.

And we saw that on the officer's body-worn camera.

Yes.

How did she testify on direct?

Robotic.

Very scripted.

She's a professional witness.

She's probably testified hundreds of times at this point.

So she'll say, I'm given a sample.

I'm given the sample from the suspect.

This is what I do in terms of feeding it into the computers.

This is what the results spit out.

And these are why I come to the conclusions that I come to regarding why I believe that the DNA that's found on these clothes matches the DNA that's taken from the defendants.

Okay, so that's why she was there, to say the DNA on the clothes is the defendant's DNA.

Correct.

Okay.

So to the question of contamination, is that something that you're getting in through her?

Or is that something that you're getting in through the officers?

And then kind of connecting to her testimony about what could contaminate something when she doesn't have a reason to fight you in the moment.

I had brought it up intermittently through some of the witnesses that were all being called out of order.

So it came up with that officer about why he didn't have his gloves on.

It came up with the crime scene unit when they started removing everything from the car later to then identify it for analysis and for inventory.

Because that person also didn't have gloves, the person who did the prep to get it to the lab, all of them were asked questions about preserving evidence, maintaining the crime scene, not allowing contamination to affect the results.

So it had come out very intermittently, but it was out there in the world.

And it wasn't until the expert came in that I finally had the chance to say, what is this contamination going to do to your testing?

Yeah, so let's talk about your cross.

Co-counsel crossed her first and talked about transference and talked about DNA not having a date on it and some of the basic stuff that I think DNA experts are subject to by way of cross that they can't say things with certainty.

They're just excluding other contributors.

And I get up there with her and get her to accept all of these facts, which she claims to have not known, not known that all of the items had been touched by people not wearing protectants.

She says, I wouldn't have known that no one would have told me that I wouldn't have even asked.

When I get a sample, I'm under the belief that all steps to maintain the integrity are kept and I am going to base all of my results working under that assumption.

And they kept trying to object on speculation grounds and it kept getting overruled because I said, judge, I'm asking this person a hypothetical.

She may not know it, but I'm going to tell her what we've already heard and I'm going to ask her about it.

And it was as quickly overruled as could be.

And I was allowed to bring up all of this other testimony that had come out so far from these other witnesses and get her to now realize that those samples were tainted.

She agrees.

She agrees the samples are contaminated.

And at this point, you know, you have that feeling when you're crossing someone and you're rolling, you're unstoppable.

Yes.

That's the best feeling.

Like, am I winning?

Is this happening?

My God.

What's happening?

She's looking at me and the jurors are looking at me and they're doing the ping pong that you hear about, but you would, but in my case, had never seen.

Not the Wimbledon cross.

I just asked her point blank, doctor, knowing all of these things about all of these problems, maintaining preservation of evidence, maintaining the scene, all of these things that have come out.

You agree that you agree that the results of your tests are, I don't know if I use the word invalid or some verbiage to say that you're just, it just doesn't hold up.

And rather than just give me a yes or no, she totally blew my mind by actually answering, saying, based on all of that information, had I known it, I would not have recommended that these samples even be tested.

Boom.

Whoa.

The golden cross moment.

Everyone froze.

And it was one of those, did you really just say that?

Did that actually just happen?

I'm going to sit down now.

Yeah, you got to get out of there.

And say that I'm done for the day.

Like, I don't need to ask any more questions of anybody today because she just said that.

Did the prosecutor, like, flip the state's table?

The prosecutor is someone who I have worked with for years and someone who I respect very highly.

But to see the look on her face when that happened, when I sat down, I just, she was dumbfounded.

She just didn't know what to do.

Was her redirect consequential at all?

Unremarkable.

Yeah.

The damage was done.

Who was your, who was the next witness then?

One of the detectives who designated himself the lead detective with regards to two of the robberies that occurred in the same town at two different 7-Elevens.

What did he testify to on direct?

He came in to testify as to a statement that he took of the girlfriend, the co-defendant's girlfriend,

regarding the vehicle that was seen at all of these seats.

And he took a statement from her and obtained information to put him, meaning the co-defendant, in possession of that car at various points.

How is that statement coming in?

The statement itself wasn't coming in because she was still coming in because she was still coming in to testify.

But we knew that he took the statement of her and he was asked what other things he did as part of his investigation to ultimately bring into the pot the idea that these two robberies are connected to the other robberies that are being investigated.

Through the car?

Through the car.

And that was the purpose of his direct?

Yes.

They did not anticipate his direct being of much substance.

What did you cross him on?

The fact that he took this statement of this co-defendant, meaning the girlfriend who had been charged and whose charges were ultimately dismissed.

In that statement, she sought counsel after being Mirandized and was continued to be questioned.

That's interesting.

So how do you use that on the trial level?

So that is a motion issue, typically, where you would ask the court, you'd move the court to suppress that statement because it was taken unlawfully.

But your clients don't have a right to suppress that statement because it's not their statement.

So how did you use that at the trial level?

During the cross-examination of this detective, he denied continuing to question her despite the Miranda declaration.

He said it never happened, that she never invoked her right to counsel, and they finished the interview, and she went back to her cell.

And we knew that that just wasn't true.

And I didn't know that he was going to outright lie, but in this instance, he just denied that it ever happened.

So the way you're using this, then, is for credibility.

Absolutely.

And that's a testament to you and your level of preparation, that with that quantity of evidence, you know and have access to every detail to catch the most random lies.

Because of all the impeachable moments you're expecting from a cop, it's a pretty random thing to lie about.

And so you know the discovery well enough, which your co-defendants, your co-counsel essentially, no discredit to him.

But I'm guessing with the amount of time he had to prepare, was not able to catch details that nitty-gritty that you were able to cross an officer on live because you just knew that wasn't true.

So this officer had retired since taking the statement.

He comes into court, and I didn't know that retired law enforcement could continue to carry.

But this guy comes in with what looked to be the largest handgun ever built, strapped to his side, wearing a long brown trench coat, leather trench coat.

What?

Yeah.

It was something right out of a movie.

He already made himself look like an idiot.

Yeah, that was it.

It was the icing on the cake.

Yeah.

He comes in like some kind of dapper Don with this brown trench coat, a large firearm, and sits there as if he is the world's greatest law enforcement officer ever.

What?

I have a logistical question.

If you're wearing a trench coat, and you have a gun like that, is it you're strapped like on the outside or like on the inside?

His coat was opened big enough that as he walked, it flailed in the back, and you could see it from the side.

He definitely walked down the hallways of his house to see how that would look.

Yeah.

To make sure the gun would be visible to the jurors.

He was like, babe, can you see this gun?

Is that it for this witness?

Yeah.

Okay.

Who's next?

The cell phone expert.

Cell phone expert.

The cell phone expert.

Okay.

So let's talk about the cell phone experts direct.

Very much anticipated because we had already had a pretrial motion hearing on the admissibility of him trying to testify.

Okay.

And he had already been determined to be qualified as an expert.

Oh, so you did a Daubert hearing.

Or is it Daubert in your jurisdiction?

It is now.

It wasn't until last year.

Okay.

So there was a very short hearing in which he had testified previously, and very undramatically, he was found to be qualified as an expert to give opinions on cell phones.

Okay.

And cell phone site towers.

Cell site towers.

I had all of this cell phone data.

There were calls.

There were maps.

There were diagrams that he relied upon, and he had ready to put up on the projector and point to different places where the crimes occurred and where the pings came from.

This is what he testified to on direct.

Yes.

Okay.

And he went one by one by one by one, crime to crime to crime, and he had to acknowledge at the pretrial hearing and during his direct testimony that my client's phone is not pinging to towers for the vast majority of these.

Either the phone is not being used, the phone is off, the phone is in the microwave, the phone was left at home.

Whatever it may be, there's just no proof that the phone was anywhere near any of these places.

But there was, for the co-defendant, and there was calls on three out of the eight.

Three out of the eight where my client's phone was in the vicinity of where the robberies occurred.

It pinged to a tower that was in the vicinity where the robberies had occurred.

Yes.

Okay.

And for five of the eight, it's exculpatory, like it shows he wasn't there, or you just don't have enough info?

Not enough info.

There's just no data.

Okay.

Okay.

Five of the eight, no data.

Three of the eight in the vicinity, but don't know exactly how close.

Yes.

Was that the long and short of his direct?

Yeah.

He went through a PowerPoint that he had put together that had maps using the Cellhawk software where he imports the data from the cell phone carriers, and it spits out images that pinpoint the tower's location at various points.

And we had gotten a very favorable pretrial ruling that his original report used these, like, semicircles that he put on the map, and he color-coded them.

And it was determined that these were just arbitrarily sized circles.

But they gave off the image that that was the range of where your phone would be in relation to the tower.

So he just used, like, MS Paint to, like, color on a map.

And you were like, no, no, no.

No.

A little word art.

Because I got him to acknowledge that these were just arbitrarily made by him, and he tried to hide behind, well, it's just for visual aid.

Like, I agree with you that this circle doesn't show the actual range, but it's a better way to visualize it.

And I said, no, it's just a better way to confuse the jury and make them think that the phone is located within this half circle.

Did they disclose the PowerPoint that he used in trial to you before?

Yes.

Okay.

Yes.

Because we had all those maps, and one of the things that happened as a result of this pretrial hearing was that he had to redo the maps.

Okay.

To remove the circles, which turned me into public enemy number one.

Yeah.

This man hated me.

Good.

Because I made him work the weekend before his vacation making new maps.

Yes, Jared.

To remove the circles.

Yeah.

And I said, yeah, you're going to remove the fucking circles.

Doesn't sound like it'd be that hard.

I mean.

Yes, you're just.

I didn't think it was that hard.

You just press, like, you know, control Z or whatever.

That's what I said to the prosecutor.

Take the circles off.

I said to the judge.

I said, how hard could it be to take the circles off?

So, he did.

He went through the direct exactly as expected.

They did try to short circuit it by getting all of those things out on direct to talk about the limitations in the tech.

So, that way, the juror weren't going to have some kind of false impression of what this technology represented.

Right.

They didn't want you to look like you were the star of the show again.

But I had another plan.

All right.

Let's hear it.

Let's hear that cross.

I made my own map.

I had all the data from the cell phone subpoena records.

I had the locations of the towers and their latitude and longitude.

And I had Google Maps.

So, my assistant and the attorney who I share space with, the three of us, spent a couple hours making a map.

And on that map, I pointed out where towers were.

I pointed out where my client lived, where some of these robberies occurred,

and where towers were in relation to his residence and various points within the community.

Okay.

The state had this.

There was no secret.

They said to me, "How are you going to introduce this?"

I said, "Well, let me worry about that."

I said, "I'm going to tell you, detective, that the locations that are marked on this map are taken from this material that you gave me from the cell phone carrier.

And tell me if this is an accurate document, an accurate depiction of the maps.

And he went and started flipping through.

And then eventually he just gave up looking and he's like, "Yeah, it looks good to me."

Yeah, he's like, "Yeah, it looks good to me."

Yeah, he's like, "Get me out of this."

Wow.

He's like, "I'm supposed to be in Florida."

I'm getting in trouble.

And he went and essentially laid the foundation and authenticated my map as being correct.

And your map showed that the tower was close to the 7-Eleven or wherever, the places that were robbed, and your client's house.

Yes, exactly.

Okay.

Did you get him to testify that the tower could have pinged at the house or the robberies?

Yes, exactly.

And then the tower was close to the 7-Eleven or wherever, the places that were robbed and your client's house.

Yes.

Okay.

Exactly.

Did you get him to testify that the tower could have pinged at the house or the robberies?

Yes, he had no choice, based on the tech and based on what he'd already conceded, that it was just as likely that my client was sitting on his couch watching friends, as opposed to being at the 7-Eleven or the liquor store or any one of the other places that were the subject of the robberies.

Wow.

Got him.

Let's go, Jerry.

That's great.

Yeah, you've gotten some very powerful cross out.

Yeah, this is like movie, like final question, shut down.

But also we're, we're picking the, you know, we're doing the highlights here, right?

So in between all of these things, it's just like the, the not.

Yeah, we are doing the ESPN top 10.

We're leaving out the not top 10.

Absolutely.

Because there were a ton of witnesses that weren't crossed at all.

Yeah.

No questions.

One question.

And, and for the victims, it was just a repeat.

Like, you don't know who these people are.

You can't identify, you were never shown anyone, you never saw anyone, you never did anything.

Yeah.

So thank you very much.

Have a nice day.

With that map, was that like a Hail Mary?

Or were you expecting to get that far to the final question?

So like, I'm sure you make your map.

It's like homemade.

You're not thinking this cop's going to authenticate it.

State objects.

That's expected.

What was your prepared response to their objection?

I was planning on saying that it was going to be used for demonstrative purposes only.

And after he went through all of those questions where he admitted the accuracy of it, I moved to admit it into evidence.

Admitted.

Admitted.

And the state didn't object.

Wow.

If they can admit, you know, made up maps.

Yeah.

So can you.

You know, it's a fair trial process.

They can look at his map and they can look at my map.

Yeah.

We're all making maps.

Okay.

Who's the next witness that we're eviscerating?

The last one was one of the victims.

And this was the owner of a beauty salon that was one of the first two or three.

I think it was number two.

The second robbery.

The third robbery.

I'm sorry.

The third robbery.

Real quick.

Did they ever find any money on your client or anything?

Yeah.

What's the recovery here?

Nope.

They found $300.

And on the night of the last robbery, the alleged amount stolen was in excess of $2,500.

And when they got arrested, they found $300.

Where?

In their wallets collectively.

Okay.

$300.

So this owner of the hair salon was a character in a hair.

She came in, didn't want to be there, just made it very clear.

Like, I'm here because I was subpoenaed.

I have no choice but to be here.

I'll say what I got to say and I'm getting the hell out of here.

We love those.

I'm just here so I don't get forthwith.

Yeah.

Please don't issue a material witness warrant for me if I don't show up.

Yeah.

So she comes in and testifies, just like all the other victims do, that two people come

in.

One of them is armed.

They demand money.

In this instance, there were customers.

And the customers were seated in the chairs.

And their purses and wallets were also taken.

Okay.

Philosophical question.

You're getting your hair done.

Okay.

Theoretically, it's halfway done.

The beauty salon gets robbed.

Your purse gets taken.

Do you continue with the service or do you go back later and get your hair?

You continue, right?

You're like, well, I don't have any money to pay you, but can you at least finish cutting

the rest of my hair?

Yes.

I say yes.

Yes.

Yeah.

Okay.

Yeah.

All right.

I'm assuming that didn't come out at trial, but that's a burning question for me.

You may have had to wait for the police to finish doing their interviews and whatnot, but I presume

that they did finish their treatment.

Not to sidetrack us too much, but okay.

So they got their purses stolen and wallets stolen.

Yes.

Yes.

And she says as part of direct that officers came.

She pointed out to them the doors where there was entry and the doors where there was egress

out into the street.

Now there's no surveillance footage of this offense.

This is the only one of the eight where there's no internal security system.

So all of this is just coming in through her.

And she said that the individuals were wearing gloves.

Every single one of the robberies, both individuals are wearing blue rubber gloves.

And she says that on the way out, she could see them ripping off their gloves and tossing

them out as they're making their getaway.

Now, the day before the detective who had gone to that crime scene was asked about looking

for forensic evidence and other things on scene and saying he didn't find anything, but she's

now saying that they took off their blue rubber glove and it's right there outside of the

store.

I get up there to just do a real simple cross with her.

And I said, so that was a bright blue glove.

And you told the detective that came to the scene about the blue glove.

She goes, oh, yeah, I pointed it out to him.

Yes.

It's another detective that I can now say, not only do we have one dumb detective, now

we got two.

It just it undermines the credibility of the entire investigation.

Right.

Yeah.

No.

Yeah.

Especially when the theory is that the quality is only as good as the worst.

Just case.

Exactly.

Yeah.

I think I think it puts a question in the mind of the jurors.

Like, well, if they didn't see a bright blue glove or they didn't follow up with this tip

that would have pointed directly to either these people or someone else, then what else did

they fuck up?

Exactly.

Yeah.

And that's a good thing to put in their head.

And that was the last of the big witnesses.

Let's talk briefly about the defense witnesses.

Was there anything notable with them or?

They were four of them were brought in.

I'm sorry.

Three of them were brought in to establish that the co-defendant was a regular visitor to this

area.

These defense witnesses are really more towards the co-defendant's case then?

All of them.

There were no defense witnesses for me.

So it's been 45 witnesses, six or seven weeks of testimony.

How do you feel going into close about your case?

I had somehow either delusionally convinced myself or real realistically convinced myself

that we had a fighting chance.

Well, it sounds like realistically.

In hindsight, yes.

But in the in the moment, because all of these things that happened intermittently and sparsed

between other damning testimony, like some of the surveillance footage is tough to watch.

Yeah.

Because you see that gun being pointed, you see people standing there looking petrified,

you see people running into the street, you see this car, this very, very non-conspicuous

two-door red Mercedes hardtop convertible.

Not a red Mercedes hardtop convertible.

How do we skip that fact?

You need a better getaway car than that.

Whoever did these robberies, if you're listening.

Let's go with like a black Nissan Sentra or something.

Yeah.

It was the most noticeable car.

It's the middle of winter.

It's parked in snow.

So there's street cameras that shows this red car.

So parts of me were like, I have really, really good stuff here.

And I got some great stuff out from these people.

But did I crack it?

Are they just going to say, yeah, all right.

He pointed out some fucked up stuff going on here, but big picture, they got enough.

So I'm hammering back and forth.

And it luckily worked out that we finished testimony on a Thursday afternoon at like 2.30, 3 o'clock.

Oh, so you had a few days to kind of chill.

So we had the weekend.

So we had the long weekend going into the following Tuesday for closings.

All right.

So let's talk about close.

First, the states close, right?

No.

Oh, OK.

So another way that New Jersey is just all out of whack.

Defense closes first.

There's no rebuttal closing.

Oh.

Close first and no rebuttal.

Defense closes one, two.

State closes.

That's it.

OK, I guess it makes sense.

The state is the states is the rebuttal.

Sure.

Well, I guess that's better because, yeah, either way, state goes second and now they don't get two tries.

Did your co-counsel close first?

No.

Oh, you did.

I did.

OK.

Because my confidence at this point had incrementally gone up.

And I said, you know what?

I've been living this file now for three years.

I think I've done pretty well for myself.

I'm going to close first.

Got you.

You're like, I'm a seasoned jury vet at this point after seven weeks of trial.

Collectively, you've done more weeks of jury than anyone in that room.

Yeah.

Well, yeah, let's talk about your clothes.

What did you, how did your clothes go?

Although I was objected to twice and sustained midstream, I thought it went fantastic.

Walk us through it and tell us about the objections.

One was by accident.

I said something that didn't come into evidence that I thought did.

That was and everyone knew it wasn't intentional and it wasn't so critically damning that it would have led to problems.

So that was an easy one.

The second one, I said something about the role of jurors and the day before I had gone out for lunch and saw a sign on the door for a high school production of 12 Angry Men.

And as stupid as it sounds, I went home that night before and watched clips on YouTube of 12 Angry Men of all of these guys in shirts and ties with their own ashtrays, sitting in a room that looked like it had no ventilation with a cloud of smoke and yelling at each other about guilt or innocence and reasonable doubt and proof and everything that we want them to be thinking about.

And I said, folks, how many of you have seen the movie 12 Angry Men and a bunch of them put their hands up?

And I don't know why I did this, but I said, did you like it?

Oh, like expecting them to answer and like engage me.

Think you like it?

It's a good movie.

And and the judge without objection said, hold on, we're not doing that.

And then I just picked up from there.

But it was organized.

It was hitting all of these points as hard as I could hit them without it coming off as over the top.

All right.

Those two objections weren't so bad.

They're not terrible, but you don't want to be objected to during summation.

I've been told that's a no, no.

Makes you human.

It's OK.

Yeah, that's on them, honestly.

And compared to what we got later, I think I don't use the word dazzled, but I definitely had their attention the entire what turned out to be an hour.

I have no idea for an hour, an hour.

It's a lot to go through.

Yeah.

I mean, a lot of a lot to sit through, but, you know, a lot to a lot of information to summate without a break, without without water.

Nothing.

What about your co-counsel's clothes?

Put everybody to sleep.

Yeah.

Put everybody to sleep.

And he knew going in that I was going to hit all these things.

Yeah.

We planned this one so that way he knew where I was going.

He knew which pieces he wanted to emphasize for his client that were different than mine.

The witnesses that came in on his case and the other arguments he was going to make regarding the phones.

And what about the state's clothes?

It took two days and three hours.

Wait, for them to close?

Yes.

Like close, closing in general, but their clothes was two days and three hours?

It took three hours over the course of two days.

That's so long.

Oh, my God.

We started Tuesday morning.

I did mine.

I did.

My co-counsel did his.

We broke for lunch.

The plan was to come back and start up with the states right after lunch.

There was some kind of security issue and we were delayed starting.

The state said, we're fine.

We're going to be able to finish.

But she wanted to show all of the clips from the various incidents and go through again, one by one by one, each one of the eight robberies.

That does eat up a lot of time.

A lot of time.

And they were sleeping.

Literally.

There was a couple of naughty heads.

Yeah.

And there was me who was also.

Yeah.

Yeah.

The judge, maybe.

I was nodding off.

Yeah.

Kind of a relief, though, for you.

Right.

Because, like, your job's over.

Mm-hmm.

Yep.

Yeah.

But I did the head bob.

A couple of bob.

If it was me, I would, like, do a fake head bob just to show the jury how boring it was.

Just, what?

Then by Thursday, you guys were done?

Yep.

So she finished Wednesday morning.

We do our jury charge after summations.

And then they went out to deliberate appointment to stay.

All right.

So the jury has it.

How do you feel?

I was on top of the world in the sense of I made it through.

Yeah.

It's an accomplishment.

I made it through.

That's your first jury, three years of your life, a beast of a case.

And a trial that most people never do in their career.

Like, most people don't do that jury in their career.

I'm curious.

So you said earlier that the offers kept getting better and better, and there were offers while

they were deliberating.

What was the offer while they were deliberating?

Ten.

Ten.

Ten.

Oh, so they never got down to the co-descendants single digit.

Yep.

So they got to ten.

The jurors started deliberating on Wednesday.

They wanted some readback.

They wanted some of the video replayed for them, because they don't get to take the video

in the back with them.

They wanted the entire detective's testimony, the one who I caught in the outright lie.

They wanted his entire testimony read back, which I thought was a good sign.

That is a good sign.

They wanted to see the clips more than once.

Now, I don't know why it was necessary for them to view the clips, because the clips don't

show identities.

They just don't.

But they did spend a lot of time talking about the clothes that were recovered, that were contaminated,

but still recovered, and then showing stills from the respective events showing similar

clothes on the perpetrators.

And then they came back with a note that said, we only have a verdict on eight out of the

18 counts.

While the jury was deliberating, what is your client feeling?

Nothing.

He asked me if he could watch highlights of last night's NBA games on YouTube while they

were in the back.

I'm sure anything to do something else.

So he's sitting there just breathing.

I know he was doing a lot of meditating and praying and just kind of just listening along

and waiting.

So we get the note that says they only have a partial.

And the question then became, how long are we going to wait?

Are we going to give them more time?

Are we going to take a partial verdict?

Do you know what charges they have a verdict on?

No.

Okay.

But they had been charged to first degree robbery for each one.

And they were also charged with a lesser included of second degree robbery, which would allow them

to find no weapon.

Now, in hindsight, that probably was something that could have been avoided because on the

video, you see what purports to be a gun.

So why are we going to charge them on a lesser included that involves no weapon?

Right.

So then what happened next?

We got to the finish line with the judge giving them what we call the Allen charge and telling

them they got to stay at it.

And we went back and forth about whether or not we were going to take a partial verdict

and then and then see if they hang on the rest.

Did your client have an opinion on it?

He did not want a partial.

He was like, send it.

He's like, let's let your co-defendant or your co-counsel.

Co-counsel didn't want a partial either.

Yep.

Yeah.

So you give the Allen charge and how much longer were they out after that?

Another day and a half.

Wow.

What are you feeling during this time?

Terror.

Yeah.

It's scary.

Because you hear, you know, the longer they're out, the better it is for the defense.

And then you hear other things saying the reverse.

And then people are saying, well, there's just so many charges for them to get through.

It's impossible to know.

Yeah, it really is.

It's hard to know.

It's just an absolute guessing game.

So then a day and a half goes by and what?

You get like a call or a text that there's a verdict?

I didn't leave the courtroom.

So on Monday morning, they come back with a verdict around 11 o'clock.

What was that moment like?

Tell us about that.

I was more afraid at that moment than any time in my legal career.

Just fear.

None of the jurors wanted to make eye contact with me.

And they had kind of developed this little funny stuff internally between themselves.

Like there would be various points, a lot of them, where they were just giggling and laughing.

And even the judge was commenting like, you guys are friendlier with each other than any jury I've ever seen.

Like they just were having a grand old time.

They were like roommates, like, you know, held captive together for seven weeks.

Yeah, they bonded.

Yeah.

Yeah.

So they bonded.

And when they came out, they were stoic.

And I took that as an immediate, oh my God, this is going to be bad.

The judge decides that she's going to read the verdict sheet for my client first.

I don't know why.

I thought I was going to be second.

And they do it one count at a time.

And I had the belief that they were going to find him not guilty on the first couple.

But that if there was going to be convictions, it would be on the later ones.

You mean the first couple robberies?

Chronologically.

Okay.

You said if it was going to be convictions, it would be in the later ones?

In the later ones.

Okay.

So we start to read it out.

The fourth person starts to read it out.

First count, first degree robbery, not guilty.

And the sigh that I must have given, you must have been able to hear it outside.

Yeah.

Like, oh my God, did I just hear them say not guilty?

Yeah.

And then I'm like, all right, well, maybe they're going to find him on the second degree robbery, not guilty.

Conspiracy, not guilty.

So he's been found not guilty of just the entire first case.

And I'm like, oh my God, did that really just happen?

And then it happens four more times.

The second case, the third case, the fourth case, the fifth case, just not guilty straight down.

We get to number six, and at this point, I'm like, oh my God, this is actually happening.

He's going to be found not guilty of everything on every case.

First degree robbery, not guilty.

Second degree robbery, guilty.

Guilty.

What's the second degree?

The second degree is the armed part?

Removal of the armed.

On the video, there's a weapon.

Yeah.

So how they came up with a second degree robbery, who knows?

So we get to number five, not guilty.

We get to number six, first degree, not guilty.

Second degree, guilty.

Second degree conspiracy, guilty.

So then my heart falls into my fear because I'm thinking, all right, even if they find him guilty on the second degrees for six, seven, and eight, that's still going to be not good.

Yeah.

It's obviously not as bad as it could have been, but it's still three robberies.

And sure enough, they do seven, not guilty first degree, guilty second degree, guilty conspiracy.

And eight, not guilty first degree, guilty second degree, guilty conspiracy.

They find him not guilty of the global conspiracy, and they find him guilty of the BB gun, which I conceded that they should do.

We get to the co-defendant, and I'm thinking, all right, maybe this is where it's going to be different.

Exactly the same.

Do you think it was the cell phone stuff that got them on the last few ones?

The cell phone and the car.

Cell phone and the car?

I think if there isn't that stop later, and he's not in that car, I think he walks.

Did your client give you any emotion from these verdicts?

He's just frozen in place.

He's not someone that I was ever going to give a hug to no matter what, good or bad.

I did put my hand out to shake with him.

He did shake it.

He knew that this was not ideal, but that it could have been a lot, lot worse.

Yeah, and a lot of our job is mitigating impact, right?

So, eight acquittals on all the first degrees, acquittals on six of the nine conspiracies, and three lesser includeds.

Let's go.

And there we are.

Yeah.

That's the short version.

It took seven weeks.

What was the sentence?

There was a plea to the other open case that was hanging around.

The agreement was that that plea would be concurrent to any number that was imposed at the sentence.

He received an aggregate term for the three verdicts of 13 years, to which he has to serve 85% before he's eligible for parole.

It's not life.

Far from it.

So, he had a ton of jail credit, so that number obviously is adjusted downward for that.

His co-defendant was given an aggregate sentence of 17.

Those are now all up on appeal.

Wait, why?

Why more?

Prior record.

Okay.

Well, you know what?

Great case.

First jury trial.

Absolutely crushed it.

Mitigated a lot of the vulnerability and exposure.

So, that was a great not guilty.

Thanks, Jared.

Thank you.

Phenomenal.

This is the part of the show where we ask our guests the ultimate question, why did you become a defense attorney?

I've been thinking about this for days, and I wanted to come out with something profound and prophetic.

It was never about, well, I need to make money, and this is the only way to do it.

I didn't wake up one day and say, I just want to help people in a broken system, and this is how I'm going to do it.

I just fell into it.

I got those jobs when I first started practicing doing the DWIs and the simple possessions and the petty shopliftings, and I realized that I was like, you're doing good for people that aren't necessarily expecting it.

I don't know how many times.

I don't know how many times you guys have heard, well, I'm going to go hire a real lawyer.

Or a lawyer.

Every day.

That's my favorite.

Or a lawyer.

I am a lawyer.

Yep.

I just wanted to show that the folks that were assigned to me were going to get my best, whether they were coming in with $10,000 in small, unmarked bills, or I was going to get a check from the state at some unknown future date when the case was over.

They just needed to know that they were going to get the best out of me.

So this area was somewhere where I thought I could give them my best.

Thank you, Jared.

Thank you for sharing your story with us.

They got your best.

Yeah.

This guy got your best for sure.

If anyone wants to bring me $10,000 for a case, they're more than welcome to.

By all means.

This just in.

He accepts small, unmarked bills.

No bad, no.

Thank you so much for having me.

All right, Jared.

No, thank you, Jared.

Yeah, just great work.

Phenomenal representation.

All right, my A-N-G-ers.

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- Yes.