Pothole Vigilante – When Fixing the Streets Turns Into a Trial

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First of all, he's not happy about the potholes in Loughlin because they're like these big potholes that have been there for years.

And he's lived in Loughlin his whole life, and he likes to, you know, get involved in the community and stuff.

And he's like, I've been telling these people about these potholes, and they're not fixing them.

So his reasoning was, I want to keep people from damaging their vehicles and running into these potholes.

That's all I'm doing here.

So the very smart prosecutor says, so you worked for the village for a long time as a firefighter, so you knew this was illegal, didn't you?

And he says, yes.

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.

What up, what up, A-N-G-ers?

We are back with another episode of Another Not Guilty.

My name is Dallas Gutman.

I'm a public defender in Cincinnati, Ohio.

And like always, I'm here with the best to ever do it, my colleague, Rachel McKay.

I'm McKay, or Rachel McKay, usually McKay, here with Dallas.

Excited to be back with another A-N-G out of Ohio.

This time we're not up the highway, we're right in Hamilton County.

And yeah, just excited to be here with a Hamilton County A-N-G.

Stephanie, take it away.

My name's Stephanie Leip.

I am a criminal defense attorney in Cincinnati.

I do take appointments, but I'm also a private attorney.

Stephanie, did you start as a public defender?

No.

You went straight into private practice?

Yeah.

I worked with some other attorneys the first like five years, and then I went solo.

So we see Stephanie around the courthouse a lot.

We see her doing her thing, but I don't really know, you know, I've never really talked to

you or I don't know much about your practice.

So it's cool to get to, you know, talk to a hometown person today.

What percent of your caseload is court appointed?

Probably like 50%.

I do.

So I do appointments in Hamilton County on the panel, but I also am, I also take appointments

in the Sixth Circuit, the Court of Appeals, and I just got a case in the Ohio Supreme Court,

which is very exciting.

And you're going to argue in the Ohio Supreme Court?

I will eventually.

I have my briefs due later this month.

We know her.

Can we see or view that somehow?

Oh, yeah.

You can, once it's-

The argument's public, right?

Yeah, it's, they like, live stream it.

Cool.

Dallas and I are going to go with signs.

Yeah, we're going to go with signs.

Reverse of a man.

All right.

Like, hey, watch that pen click.

Sorry.

Watch that pen click, because it's going to be like the pirate ship.

We're getting more cognizant of ambient noises that we caused.

That ruin of a 90-minute episode.

Yeah, it's going to be like a good thing, and then it's like a click, click, click, click, click.

Okay, so, Stephanie, do you want to tell us what your client was charged with?

He was charged with criminal mischief, misdemeanor of the third degree.

What does that mean?

It's kind of like graffiti.

It's what you get charged with when you graffiti a wall or something.

Okay.

What was he facing?

Potentially, Max's sentence would have been 60 days in jail.

Okay.

So, pretty serious.

So, it's a misdemeanor?

Mm-hmm.

Of the what degree?

Third.

The elusive, evasive M3.

Right.

The rare.

But there.

Always rare, but sometimes there.

Third degree misdemeanor.

Yeah.

But 60 days is no joke.

60 days is no joke.

So, still a big deal for our clients, right?

Yeah.

Under the Ohio statute for criminal mischief, what does that mean?

So, it's like graffiti.

What kind of things would count as mischievous to the point where you could get put in a cage for it?

Well, I guess it's not just graffiti, but that's kind of how he was charged.

But any sort of damage or defacing of the property of another.

Okay.

Okay.

Okay.

Well, tell us a little bit about the facts.

Like, what the, from the, I guess, from the state's point of view first.

They charged him with this because he had put orange spray paint around potholes in the street in the village of Loughlin.

So, this was a village of Loughlin case.

Okay.

That got moved to the county.

So, it was a mayor's court case that got moved to the county.

Yeah.

Can you explain that a little bit with just the kind of function of that?

Yeah.

So, Ohio has these weird little mayor's courts that are not a county court.

They're separate city courts.

And if you, it's not a court of record.

So, that's a little different.

But if you don't.

What does that mean?

Like, there's no court reporter.

Okay.

My plan originally was to just try it there.

You don't get a jury there either.

So, if you ask for a jury, they send it down to the county.

Okay.

My plan originally was to try it there and bring a court reporter with me.

And then, if you don't win in mayor's court, you can just appeal it.

And then, you start over in the county municipal court.

So, you kind of get two bites of the apple in mayor's court.

You can, at least.

You can, but they found out I was bringing a court reporter in the Laughlin Senate downtown.

They didn't want to deal with that.

Did you file something that said you were going to do this on the record and that tipped them off?

I did not, but I was asking around, trying to find a court reporter at the last minute.

And I was using someone from the courthouse.

And I think somehow the word got out.

The courthouse is like high school.

Like, things just spread like wildfire there.

So, you're in tiny mayor's court in Laughlin.

And you're whispering around trying to get a court reporter.

Word gets out that...

Well, I was looking for a court reporter, like, downtown, around town,

trying to find somebody that could get there on the day that I needed.

Okay.

Word gets out that you're...

Someone's trying to do something on the record in a mayor's court.

Huge red flag gets sent back to county court.

Yes.

Okay.

So, when it gets sent back to county court, what's the state's case of that?

Or what's the state's version at that point?

Still the same thing.

Okay.

So, he's charged with criminal mischief because he's putting spray paint around potholes in

Laughlin.

Yes.

So, when you meet your client, what is he saying about it?

So, he says, I'm just...

First of all, he's not happy about the potholes in Laughlin.

Because they're, like, these big potholes that have been there for years.

And he's lived in Laughlin his whole life, and he likes to, you know, get involved in the

community and stuff.

And he's like, I've been telling these people about these potholes, and they're not fixing

them.

So, his reasoning was, I want to keep people from damaging their vehicles and running into

these potholes.

That's all I'm doing here.

Vigilante shit.

I like it.

So, he's going around spray painting.

Does he have, like, a trademark color?

Or...

How do they know...

Orange.

They're treating this all to him.

Does he, like, initial it?

Well, there was some spray paint out on the sidewalk in front of his house, and they decided

that it matched up.

And then they asked him, and he said, yeah, I was doing it.

Oh, no!

Not only astute detective work, but also full confession.

All right, you got your work cut out for you.

We have a behavioral fingerprint.

We have a physical paint trail up to the address, and topped off with a Mirandise confession.

He's saying like a canary.

Great.

It was me!

So, I'm assuming he wants to fight it from jump, right?

Mm-hmm.

Yep.

Okay.

So, then what's next in your investigation?

What do you do next?

Can I back up a little?

Because you got...

Yeah.

So, you got in touch with client through referral from another attorney.

And when you first talked to client, is that on the phone when you first talked

to him?

Mm-hmm.

Okay.

How was that phone conversation?

So, he calls you up, or you call him, and he's just livid.

What was his energy?

I mean, he was upset, but he's not like a...

Like, he's not a super angry person.

So, he was just like, you know, I can't believe they charged me with this.

What can I do?

Can we get it out of mayor's court?

I don't want to deal with these people.

Right.

And then, he just came...

Then, he came in my office, and we met longer.

So, then what's next for you guys?

You filed discovery?

Yeah.

What do you get in discovery?

Well...

First, we, like, did this whole dance in mayor's court.

Okay.

I filed discovery there, and I set it for written pleas and everything, and I got it set for

something.

And then, I was set for trial.

And then, they sent us back.

Then, I filed discovery here.

And then, the discovery they gave me was just some pictures.

The discovery you got in mayor's court, did that match up with the discovery you got when

you refiled for it in normal court?

I never got discovery in mayor's court, but it's the same prosecutor.

Okay.

So...

Oh, they brought the Lockham prosecutor to Hamilton County.

I've seen them do that.

Okay.

And in mayor's court, you were going to bench it, because you can't do a jury there?

Yeah.

So, you were fully prepared to bench it to...

Who would it be?

The mayor.

No, it's not the mayor.

It's not the mayor.

The mayor's court contracts out.

They hire attorneys to be the magistrate and the prosecutor.

So, the judge and magistrate's court is...

Or, sorry.

The judge slash magistrate and mayor's court is a random attorney who's been appointed to

that.

It's like mock trial in law school.

It's like a contract.

Like, it's like a side gig for an attorney.

Like, I mean, I guess I could do it, but I don't know if they would hire me for that.

Not anymore.

And I wouldn't be a prosecutor.

Not after this podcast.

So, it was all off...

It was all going to be off the record, because that's all they do, is stuff off the record.

And you can sometimes bench something off the record, but you...

If you try to get it on the record, then they'll probably kick you out of mayor's court.

Yeah.

Maybe.

Well, that's what happened to me.

And if you win in mayor's court, then you're good to go.

But if you lose in mayor's court, then you can just redo the trial in normal court.

Yes.

This sounds questionable.

I've never understood mayor's court, but...

Yeah, I'm pretty sure the ACLU did a report on how they're not constitutional.

They're a little shady, I think.

A little shady, a little shy.

Yeah, very shady.

Okay.

Yeah, the Constitution doesn't quite reach to mayor's court.

So, the process of going from mayor's court to the main county court, you obviously get

rolled to a courtroom.

Mm-hmm.

So, talk about that courtroom a little bit.

We got Judge Silverstein.

Tell us about Judge Silverstein.

We couldn't have gotten a better judge.

Just so everyone knows, Judge Silverstein was...

She worked in our office at the Hamilton County Public Defender's Office and just recently became

elected judge.

So, a lot of people don't do juries in that room.

So, what was your thought process behind doing a jury in her courtroom?

So, I agree.

Probably any other case, I would not have done a jury in her courtroom.

But this was really sort of a principal thing for my client, and he wanted a jury, and so

he was getting his jury.

He wanted his day.

And it was kind of like a, screw you to the village.

And this was a media case, too, right?

Yeah.

Tell us a little bit about that.

Um, I did that.

Oh, and it's a media case because you told the media?

Uh-huh.

Okay.

How'd you do that?

I want to know all about this process.

Normally, I would not at all do this, but I just, I talked to a couple other attorneys.

I'm in the 810 Sycamore building.

Do you guys know where that is?

Yeah.

Um, so there's lots of other criminal defense attorneys in my building, and I talked to a

few of them, and they were like, you need to take this to the media.

So, somebody got me hooked up with somebody at Channel 5, and I talked to my client first,

of course, who was already ready to take it to the media.

Right.

Um, so, but I, I did not let him talk to the news until the case was over.

So, what was your, like, what's the function of that?

What was your hope behind taking it to the media?

I was hoping to put the pressure on the village to just dismiss the case.

Spoiler alert, that did not happen.

Did not happen.

At any point, were they going to?

No, they offered me a minor misdemeanor, and at that point, my client was not doing anything.

Like, he could have paid a fine from the get and never hired an attorney.

This was all about principle for him.

Yeah.

Right.

Plus, now that you're in Judge Silverstein's courtroom, right, the analysis is a little bit

different, because if you lose, nothing's going to happen.

Right.

She's not going to, she's probably going to fine him.

Very risk.

If that.

Low risk jury trial.

Low risk, right.

And, at this point, your client is pretty much saying the same thing that the police report

and the discovery is saying, right?

There's no dispute over the facts.

And so, is it a jury in part because you're arguing nullification?

Yeah.

Like, even as good or as safe as a bench would have been on any other case in that room, was

there still a risk of benching it in there because you're not actually disputing the facts?

Yeah, I mean, if you look at the elements of the offense, kind of met the elements in this

case.

Yeah.

What are the elements?

It's, um, without privilege to do so, knowingly move to face damage or destroy or otherwise

tamper with the property of another.

Yeah, right?

Lachlan didn't say he could.

He knew that he was spray painting around the potholes, defacing the streets.

Can you talk to us a little bit about jury nullification and what that means?

Well, you can't technically argue jury nullification, at least in Ohio.

Right.

So I didn't argue that, um, but I just gave the jury some things to think about.

And I kind of knew, like, I just need to give them one tiny little reason to say not guilty.

Yeah, and I guess I gave them enough.

Yeah.

Great.

And we're going to get to those tiny little reasons.

Um, I want to talk about the preparation leading up to trial.

So, you know it's going to be a jury.

You know it's in Judge Silverstein's courtroom.

You only have pictures, right, in, in evidence or discovery.

So what's your, what's your preparation leading up to trial?

Is your client going to testify?

Yeah.

Okay.

So talk a little bit about your process.

Um, well, this was kind of a simple prep for me.

Um, I sat down with my client for a while and my, I also had pictures from my client.

So I went through pictures with my client and decided which ones to use and kind of went

over them with him.

I didn't end up even using my pictures.

I used theirs.

Can you describe the pictures?

Like, what, how are your pictures different than what they had?

If it's just, you know, not to simplify it too much, but if it's just spray paint on the

streets.

Well, some of the pictures that I had, the spray paint was more visible than their pictures.

So I didn't use those.

Um, they weren't, my pictures weren't.

They weren't much different.

They were just probably different potholes.

How many were there total?

Are there different, is it one count or is it like an A through like B charge of different

potholes?

It was just one count, but my client was saying there's hundreds of potholes in the village

that aren't fixed.

How many were the, was the state saying that he defaced?

Like three or four, but they only charge him with one count.

I think they had a total of five or six pictures that they used.

Okay.

And their pictures were so bad.

Yeah.

How can you describe it?

Like it was, you couldn't really see the spray paint in their pictures.

It, and where you could kind of see it, it was very faded and they're trying to pretend

like this is permanent damage.

Hmm.

And so the, I'm, I'm like up at the screen where the picture is telling the officer,

like, you're telling me that there's spray paint all around this pothole, but it's pretty

faded.

Right?

And he's like, oh no, I can see it clear.

But everybody in the courtroom can see, you can't see the spray paint on this picture.

Right.

Where's the bright orange?

Where is it?

Well, of course, right?

What else is he going to say?

No, actually.

You're right.

It was not permanently defaced.

They just, they just got to stick to it.

Even if they know.

Yeah.

There's an angle on the defense is the, the permanentness of the defense, which that's

yeah.

That's not even nullification.

Is that something that you got, that you talked about without getting too far ahead?

I did talk about that.

I mean, it, I don't think it matters if it's permanent or not as far as the offense goes,

but it was just sort of like me chipping away at the officer and his credibility.

Okay.

And the discovery, is it just the police report and the photos?

Yeah.

Okay.

Police report, photos, and then, you know, your formal discovery listed the officer and some

other city people, city employees that never testified.

Do they not have, does Lachlan not have a body cam?

They don't.

Well, they did not at this time.

I think they might now, but they didn't at this time.

And client's confession, is that in the police report?

It's only in the police report.

There's no recording.

Okay.

And what did they say he said?

It was me.

They said that he said, uh, the, the officer says, Hey, we've been having a problem with

someone's spray painting potholes.

If you know anything about that, let me know.

And my client said, well, I'll save you the trouble.

It was me.

Yeah.

Because your client is indignant, right?

Like he's like, it's me fix these potholes.

You motherfuckers.

Right.

Like he's not trying to hide the ball.

No, he doesn't think he did anything wrong.

He's right.

Help people.

Yeah.

He's got like orange spray paint on the tips of his fingers.

It was me.

Um, so then you're, you're ready for trial then.

Any pre-trial motions before you get to, uh, day one?

I mean, we did separation of witnesses, but there was two witnesses.

It didn't really matter.

One cop and my client.

Oh, oh, right, right.

It was a very short trial.

Okay.

So then we've done a separation of witnesses.

What kind of, what kind of jurors are you looking for?

Um, I honestly going in, I didn't know what I was looking for.

Um, but it turned out that I was trying, trying to get all the, as many people as I could that

raised their hand to the question, have you ever damaged your vehicle on a pothole?

Nice.

Oh, okay.

So, uh, are we ready to get into voir dire?

Okay.

Yeah.

Oh, sorry.

No, you too.

Yeah.

So let's talk about voir dire.

Um, any interesting things happen?

How many people, you know, walk us through it.

So the best part to me was when they were asked in the prosecutor, he asked this question,

uh, with, if, if they had ever hit a pothole and like every person in the whole room raised

their hand.

Did he cause them all?

So in judge.

Wait, the prosecutor asked that question?

Yeah.

Oh, I feel like that's not good for him.

I know.

I did a lot of follow-ups on this, but, uh, in her courtroom, we did, we, we questioned

everybody.

So the people in the box and the people in the back.

Was this her first jury?

It was her first jury.

Okay.

Okay.

So you're asking everyone questions?

Mm-hmm.

Okay.

So he goes first and he asks, he said a pothole.

Everyone's hit a pothole.

Every single person in the room raised their hand.

Perfect.

And then he also asked about if anyone had had their vehicle damaged by a pothole and

a good handful of people raised their hand.

So I asked follow-up questions to them and tried to get as many of them on as I could.

Like I was using up all my preemptories to get to the next guy that got his car hit by

a pothole or messed up by a pothole.

What kind of follow-up questions did you ask?

Um, wouldn't it have been nice if you had a warning that that pothole was coming?

Answer, yes.

Did the state object?

Mm-mm.

No.

They just let it ride?

Yeah.

Was there anyone who, was there any like, I don't know, moments, like surprising moments

or surprising answers?

I had one guy, so part of my case was that the police chief who was the arresting officer

had brought my client in, or no, they had a phone call.

And that's when my guy admitted to it.

And then he says, don't do it again.

And my guy's like, okay, I won't.

And then he doesn't.

And he tells him the proper way to handle it and go contact these maintenance people or

whatever.

Um, so then he decides like weeks later, he's going to cite my guy for this.

He didn't arrest them.

He just cited him to court.

So I had, there was one guy that was talking about how he got pulled over on his bicycle

for running a stoplight.

And, you know, that's about as ridiculous as the painting potholes.

Right.

So I got him going on that.

Like, well, what would you, would you be upset if that officer that gave you a warning

just came back and cited you two weeks later?

And he would be like, yeah, that's ridiculous.

So I got him on.

He was like, what, you know, I only had to get rid of like two people to get to him.

Perfect.

Was the media there at the trial?

Mm-hmm.

They were covering it?

Mm-hmm.

How many?

Yeah.

How many?

Um, so one channel was there during voir dire, which I didn't understand.

I don't know what the point of that is.

And then just channel five was there the day of trial the whole day.

Cool.

What was their like angle?

Like, do you think they were more on like your client's side or like the city's side?

I think every bit of media coverage was more on my client's side.

That's unique.

Because that's like a pretty, that's like a pretty like well-known thing in Cincinnati for

people who don't live in Cincinnati.

Like, I think that that's like a big gripe is how bad the streets are.

Right?

Mm-hmm.

Yeah.

And so I can see people getting fired up about this.

He's the hero that everybody wanted.

What other questions did you ask in voir dire?

I don't remember anything notable.

Just your usual.

So you didn't do anything voir dire to get at.

Is there a world where you could ignore the letter of the law?

No, because I did not want to, because you can't argue jury nullification.

And I was trying to act like I wasn't really doing that, even though it was.

So what was your plan?

Like, what's your, I know your defense is jury nullification, but what's your like,

that's your secret defense, but what is your like front-facing defense?

Um, a couple things.

Those pictures were terrible.

So like, they had a hard time even proving that it happened because you couldn't see very

well that it happened.

Um, and my guy was doing it to help people.

And there is this little piece of the jury instructions.

So one of the elements is without privilege to do so.

And in the OJI, there's a definition of privilege, which includes growing out of necessity.

So privilege means all these things or growing out of necessity.

So we like built up all this about how the potholes have been there forever.

And he's just trying to keep people from hitting them.

Plus I get all of my jurors to be like, oh yeah, I've had to spend hundreds of dollars

fixing my car because I hit a pothole.

So that was kind of my best argument there.

No, that's great.

So you're attacking privilege.

Yeah.

So I asked for that.

I might be getting ahead here, but when we were doing jury instructions, I was like,

I wanted that in that definition in there.

And it's part of the OJI for criminal mischief.

It's a definition of an element.

Sorry, OJI is the, OJI stands for Ohio Jury Instructions, right?

Yes.

Okay.

So the prosecutor was arguing against it.

And his arguments were like the argument you would make against adding a defense.

You know, like that I hadn't gotten enough evidence in to get the instruction.

But it's not a defense.

It's just the definition of an element.

So it should come in.

And she put it in.

Okay.

Yeah.

Bad room to be a prosecutor with that argument.

So finishing up voir dire, did anyone, did you cause anyone or strike anyone or preempt

anyone in any way?

I didn't try to get anyone out for cause, but I threw, I used up, I think I used all my

preemptories.

Okay.

Do you remember on like, on who, like for what reason?

Um, I, I threw one guy out because he, um, was a former lawyer and I didn't want him

to be too worried about following the law.

Don't want pesky law powers.

He doesn't want to follow the law here.

I used the preemptory on him.

And that, I don't, there was a couple other people I just didn't really like.

I didn't like some of their answers.

Just vibes.

Yeah.

So they went, plus I was like, who do I like the least out of here so I can get to these

guys over here that the bicycle guy and this next guy that hit a pothole with his car and

had to get, get his like tire repair or something.

And those two people ended up on your jury?

Uh-huh.

Did the state use any for cause or peremptories?

No, no for cause.

They use one peremptory on alternate.

Okay.

It's not really like, I mean, obviously it's like a serious case in that, you know, your

client's vulnerable to jail time, but it doesn't like strike an emotional chord, like, you

know, like a domestic violence or like an OVI.

It's hard to get.

I think it would be difficult to get people who are like so biased against like street,

you know what I mean?

Like I just love potholes so much.

I cannot be fair and impartial to your client.

Like it would be like very difficult, you know.

Did you like your jury?

Did you, did you walk away from what you're feeling good?

I did.

Okay, cool.

So you did Wadir and you like the jury and you had the jury by the end of the first day

and then you come back 1030 day two to do opening statements.

Yes.

All right.

How does opening go?

State first.

How does, what does the state say?

He's just, so he did a good job actually of being like, look, I'm not saying potholes

are great.

I don't like potholes either.

But he's always scared after that Wadir.

Everyone's like, we hate potholes.

He's like, oh God, I got to rework my whole case.

Now, um, I actually ran into him today in the elevator in your building and he was like,

that was a waste of 36 hours of my life or something.

And I was like, I thought it was fine.

Cause doesn't he do felonies?

He does felonies, right?

I, he might be in juvenile court.

I don't know.

Oh, okay.

He's been practicing longer than me and I've practiced with him in every, every division.

Yeah.

Yeah.

So then, okay.

So sorry.

I interrupted you.

He was, um, just, he was like really focusing on, you have to follow the law and what he

did meets the elements of the crime.

And, you know, like, I'm not, I kept saying he's not a criminal.

And so he's like, I'm not calling this guy a criminal, but he did, you know, like he did

break the law and he did paint this, the street and you're not allowed to do that.

And part of their argument was like, apparently there's certain colors for certain things

that, you know, like the electric company will paint the street a certain color for something

and the, they'll paint, you know, they'll use a different color to say there's an oil

line or a gas line.

There's different colors mean different things that utility companies will use.

So that was part of their argument that him doing that was dangerous.

You don't want to confuse people and think there's a gas line in a circle.

Right.

Underneath a pothole.

Around a pothole.

I don't know how they do it in Loughlin, but.

I thought it was lightning.

Could be, could be.

What about, what about your opening?

So talk, walk us through what you did.

Um, so mine was all about this guy is not a criminal.

He was just trying to help people.

He was doing a good deed.

Those are not my exact words, but, um, he's just trying to help people.

He's doing a good deed.

He's a retired volunteer firefighter for the village of Loughlin for 35 years and it's

his nature to help people.

And that's all he was doing.

That's a great fact for you.

Yeah, it was.

Yeah.

Mm-hmm.

Okay, perfect.

So you give your opening.

Is the jury, can you read them at all at this point?

No, they're really hard to read the whole time.

They're stoic.

No nods.

No.

No.

I always try to, like, lock eyes with someone.

I'm like, are they, like, leaning in because they're uncomfortable in their chair or are

they really, like, feeling what I'm saying?

It's really difficult to tell.

I, yeah, it is hard to tell.

Okay.

They're a stoic bunch on these potholes.

Yeah.

All right.

State's case.

So then I guess, yeah, state's case.

Who's their, they have one and, one and only witness, right?

They have one witness.

One of one.

So their one witness was the police chief who was the arresting officer.

So walk us through the state's direct of the police chief.

He's just asked them about the potholes, goes through the pictures, says, how do you

know this guy did it?

He talks about what my guy said to him, and then he talks about the spray paint on the sidewalk

in front of my guy's house.

What did that look like?

Was it just, like, he was, like, testing out his can or something, or was it?

Like me on Footprints.

Oh, this was, this was a great fact.

I didn't know about the spray paint on his sidewalk.

It came out in trial, so I asked my client, and he said, yeah.

Um, this, they planted a tree on my, in the sidewalk, and the roots made the sidewalk come

up, and somebody tripped.

So I spray painted it so it wouldn't happen again.

This guy's a saint.

Right, exactly.

And that was right in front of his place?

Right in front of his house.

Oh, okay.

So that's what initially brought them.

Did they have any other tip besides the spray painted tree roots in front of his house

that this guy might be the painter?

I think there was talk around town that it was my guy.

Is Lachlan that small that people just, like, it just gets, it's like the town gossip that

this guy is spray painting potholes?

Someone's like, I know the painter.

I know the paint.

Look for the spray paint on the sidewalk.

It had been going on for years, and nobody said anything to him.

And now all of a sudden, they're going to arrest him for spray paint.

Oh, and that's why there have been hundreds of potholes, because he's been doing it for

years?

Well, they've, I mean, there's been hundreds of potholes that haven't been fixed.

But he's been doing this for years.

And they're charging with a four.

Okay, so the direct of the officer.

Yeah, what comes out in addition to that?

So the sidewalk thing, and then he goes through the thing with him, like, what color, you know,

what the colors mean, and why that's important.

Which colors goes on the street for what, and why that's important.

And he didn't really know a ton of it, because he's a police officer.

That's what I was going to say.

Does he even know?

Like, did you object to any of that?

Like, personal knowledge or speculation or anything?

No.

No.

He just, I mean, like, what he was saying, he didn't know that much.

Right.

But I, on cross, was like, well, he did say that they used orange.

The police themselves marked the street with orange spray paint for accident and reconstruction

purposes.

All right, so let's get, yeah, let's get into your cross about that.

So you were defacing the street, and that doesn't last forever, does it?

It just goes away with the weather eventually, and it's gone.

Boom.

And what did he say to that?

He agreed.

He agreed.

He was like, yeah, we try to, you know, use minimal amounts so that there's not permanent

damage.

But, yes, it does go away on its own with the weather.

Boom.

And, like, that, kind of the point of that, too, was, like, okay, you are saying that what,

where the street is painted is a safety issue, but the reason that orange spray indicate,

orange spray paint indicates something that you're doing for, you're using that to help

you reconstruct accidents.

So it's not really, it's not an electric line or a gas line.

It's not a safety issue.

Right.

And it's not a signal to anyone.

It's for their own, you know, their own knowledge, right?

Mm-hmm.

How did you find that out?

Did he say that on direct?

Or did you, was it, like, in a police manual?

The orange spray paint?

Yeah, that they use it for accident reconstruction.

The officer said it on direct.

And was that the first time you learned that they use orange, too?

Yeah.

I love that.

How was the officer on the stand as far as his demeanor?

He, he came off very friendly and nice with the prosecutor.

Of course.

He was mostly okay with me, but when I was going over those pictures with him, like, look, this,

you can't, you can't actually see the orange on here, right?

And he was like, oh, it's clear to me.

But it wasn't, no one in that room could see that spray paint.

Did you have him, like, come up to the, you know, like, move around the courtroom, come

up and say, like, show me where it is, and.

Yeah.

One by one.

Yeah, and he's like.

Yeah, so go into that a little bit more.

Right here, he's pointing at this picture.

He's right here.

It's very clear to me, and I was like, it's pretty faded, right?

Well, you could see it better a person.

Should have got a better picture.

All right, buddy.

Yeah.

Right.

I had some pictures of better potholes, bigger ones, not better, bigger ones, but I decided

not to use them because the spray paint was more visible, and I really liked their pictures

better.

Yeah.

What spray paint?

Did anything else come out on cross that was unexpected or any, like, moments?

Oh, so there were some moments.

There was a, the prosecutor made an objection and had a big hissy fit.

I don't, I think this was when I was questioning the officer, but it might have been when I was

questioning my client.

So, like, part of my theory here is that I want to make this jury be empathetic to my client,

number one, because he's, like, got this great story.

And I want them to understand that we're talking about large potholes that have been there forever,

and there's a lot of them.

So, I think this was when I was questioning the officer.

I was trying to get in, like, how long has this pothole not been fixed?

How long did it take to get fixed?

How many are there?

That kind of thing.

And the prosecutor objected, and we went back in chambers, and he was, like, throwing this

whole fit about, oh, it's not relevant.

And that's when the judge was, like, well, I think that's part of her theory, and I think

clearly we're going for jury nullification here.

Obviously, we can't argue that, but she let it in.

I mean, it's the most relevant, right?

This whole story is about potholes.

Right.

Right.

And why we're doing it.

Why is he spray painting the potholes?

Right.

He admitted it, so I had to, like, mitigate that.

You had to work with that.

Yeah.

I don't know what they could do about that.

And even outside of nullification, it goes to an element of the offense as defined in

the OJI.

Right.

Yeah, it's like necessity, almost.

Yeah, growing out of necessity.

But at that point, we hadn't gotten to that yet.

Luckily, I saved that for the end.

Right.

You don't want to tip them off.

But yeah, McKay, you're right.

It does go to an element.

Yeah.

Right.

Do you think this prosecutor thought he had it in the bag?

No.

No.

Okay, I have another question about direct slash cross.

Did you bring up the fact that they told him that they were just giving him a warning and

he said he wasn't going to do it again?

And then two weeks later, there's a warrant out for him.

So I did bring that up.

And the officer kind of twisted his words a little different than what he said.

He was like, well, I didn't give him a warning.

I just let him know that doing that, you're not allowed to do that.

It's criminal.

And here's what you're supposed to do.

And then the officer said that he talked to other people in the village and they decided

they were going to charge him.

But it was weeks later.

It was like almost a month later.

They decided to charge him.

And when they decided to charge him, did they go serve the warrant or did they just put a

warrant out for the rest?

No.

I mean, they handled it appropriately.

The police chief called him and said, you know, you can come pick up this citation or

we'll put out a warrant.

And that's when he called me and hired me.

And I said, go get your citation.

Let's not have a warrant.

Let's just get cited to court and we'll deal with it from there.

So he just went in and signed the citation and picked it up.

Okay.

And that's their only witness, right?

Mm-hmm.

So they rest?

Yes.

And they admit those five pictures?

Mm-hmm.

No objection from you?

Nope.

And then you move for acquittal under rule 29?

Yes.

Denied?

Denied.

Classic.

Yeah, so let's talk about the defense case.

So my client testified.

I got him up there and had him talk about how he was a volunteer firefighter for the village

of Loughlin for 35 years and an EMT and a fire inspector, a volunteer.

He was born and raised in Loughlin, raised his family there, went to high school there.

We go through all that.

And then I said, so, I mean, we heard the, you know, we heard the police officer.

He said, you admitted to painting these potholes.

Why are you doing it?

And he tells me.

And then we talk about how many potholes there are and how long they've been there and are

they fixed yet?

And, you know, he says, well, some of those potholes got fixed after it was on the news.

Mm.

But not all of them are fixed still.

What does he tell the jury?

You say, why are you doing it?

What does he say?

Like, what's his words?

He says, I'm trying to help people not hit those potholes.

And so did you go through the state's photos with him, too?

No.

Okay.

You know, I had already prepped him to go through ours, but then, because I only had

black and whites of theirs, by the way.

This, this really made me mad.

I only had black and whites of theirs.

And I was like, I asked for colors multiple times.

Like, just email them to me.

You don't have to print out the color photo.

Just email it to me.

And I never got them.

So once I saw them color up there, because I suspected that's what they were going to

look like from the black and whites.

So once I saw the color photo up there, I leaned over to my client and said, we're not

using our pictures.

Yeah.

How was your client feeling before trial?

Like, was he excited?

Was he nervous?

I think he was nervous.

He was very hard to read and very quiet the whole time.

So I think he was just nervous.

But at the end, he was, like, ecstatic and happy and thankful.

So then your client gets up there.

He tells his story.

Is there anything else that he said on direct that you, you know, needed to get out or wanted

to use?

Well, we ended up talking about the spray paint on his sidewalk, which I thought was gold.

So it just went along with the story.

Yes, I spray painted my sidewalk because somebody fell and I didn't want them to fall, anyone

to fall again on that uprooted tree thing.

This guy's the perfect client, honestly.

He was great.

Yeah.

He was perfect.

Yeah.

How long was he on the stand for?

30 minutes.

Maybe it wasn't long.

How'd the cross go?

A little rough.

What happened?

I thought we were going to go down in flames.

Uh-oh.

So the very smart prosecutor says, so you worked for the village for a long time as a firefighter,

so you knew this was illegal, didn't you?

And he says, yes.

No!

I thought that was going to be it.

I thought that was going to destroy us.

And he knew afterwards, he was like, I messed up, didn't I?

I was like, yeah.

What was he supposed to say?

You know what I mean?

I mean, what's he supposed to say?

You can't tell your clients to lie.

Right.

So.

Yeah.

And I'm sure he built cred with the jury in that moment.

Yeah.

That's as honest as you could possibly be.

Yeah.

I think he did a good job.

He did well, otherwise?

Yeah.

Okay, cool.

So, defense rests.

Yes.

Admits no photos, because theirs are way better for your case.

And then I renewed my rule 29.

It was denied.

All right.

So now, closing argument.

Yeah.

We did, well, we did jury, we took a long lunch.

Before lunch, I was, we were going over the jury instructions, because we'd had a draft

already, and that's when I asked for my definition.

Talk to us a little bit more about that fight.

Was he not expecting that?

He must have been expecting it, because, like, the words came out of my mouth, and he's having

a fit.

Yeah.

Plus, it's like there.

I mean, they got to read the, oh, they got to read the instructions.

But I wasn't really expecting such a fight about it, because it is a definition of an

element.

Like, what's the problem?

It's not like I'm taking a definition out of some other section of the OJI.

Right.

This is within the section.

This is part of the criminal mischief, OJI.

So I wasn't really-

Were you worried?

I, not really.

But he was like, unless she has case law, blah, blah, blah, and the judge asked me if

I didn't, I was, no.

Case law.

It's an element of a crime.

Right.

Contextualist today.

So I did, like, research it some at lunchtime.

But there wasn't anything on point.

Just, like, there's a bunch of cases that say this is an element of the crime.

So, okay.

Yeah, that's probably enough.

Did-

It's not a defense.

What did the judge say?

What was her reasoning?

That she did some research, and it was based on her finding some cases that said this is an

element of the crime.

Boom.

And at what point did you notice that you had that defense available to you?

Is that something, an angle you were playing from the beginning?

Or did you notice that closer to trial when you actually saw the jury instructions?

Because it's not in the statute.

It's just in the instructions.

Okay.

It's in the instructions, but I had pulled-

This is rare.

Usually I'm getting the jury instructions, like, the day before trial.

But I pulled them-

I had pulled them earlier before, like, before we took this avenue that we were going to take.

Like, getting the media involved, and then trying it in mayor's court.

Like, before we put this whole charade on, I looked at the jury instructions first.

So, like, I kind of had that in my back pocket, but, I mean, I knew from the beginning this is not a slam dunk.

Right.

If we would have got a different judge in Hamilton County, I'm not saying we wouldn't have done a jury,

but I would have had a different conversation with my client about it, about the media.

Yeah, because of the potential.

Right.

Because there are some courtrooms that if you lose a jury, no matter what the facts are, your client's going to jail.

Yeah.

Yeah.

Right.

Yeah, not a slam dunk at all, especially after cross-examination, where client says, yeah, I knew that was illegal.

Yeah.

Yeah, there's plenty of-

Not only does he admit to doing it, but he says he knew it was illegal.

There's plenty of courtrooms where, in that moment, you're like, 60 days, that's it.

It's over.

Right.

Do you think your client would have gone to jail for this?

No.

In any courtroom?

Well-

I mean, like, would he be willing to?

You know, if you had a conversation, like, hey, listen, because, you know, some clients are like, I don't care, I'm fighting this, I'm pleading not guilty, like, I don't care what the consequences are.

And a lot of clients are like, I don't want to go to jail over this.

So, like, do you think that the cause was so dear to his heart that he would have just, like, thrown it at the wall, or was he, like, cautious?

No, I think, I don't think he would have, no, I don't think so.

He wouldn't have pledged to anything?

Well-

No, you're, I think what you're saying is he wouldn't, he wouldn't have, like, risk going to jail.

I don't think he would have.

Oh.

I don't know.

I never had that conversation with him.

Like, this judge might send you to jail if we lose this trial.

And it's not a, you know, we're asking for something that we're not supposed to ask for.

Yeah, sorry.

So now, you've gotten your instruction, right?

Yeah.

And we're at close.

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

I mean, it was long.

I don't, I don't know how you can talk that long about this.

How long was this?

I don't, I don't know, I didn't time it, but it was longer than I expected on it, this case.

And then his, his, I hate when they get the last word.

That was-

Same.

Forever.

And that's always longer.

I hate when they, like, don't land the plane, and you just, you think it's, like, about to be over,

and then they roll back into it, and you're like, oh, come on, they already know.

Yeah.

They know the elements.

They know he said he did it.

Just get us out of this.

Right.

Yeah.

I mean, that's, he hammered on the, you know, you got to follow the law, and this is, this

is what he did, and this is the elements, and he, he's not allowed to do this, you know,

and he talked about the, the color thing, what the colors mean, or whatever, and, and of

course, he hammered on the fact that my client said he knew he wasn't supposed to do it.

So that was closing number one?

Yeah.

Okay, and then your clothes?

Mine, actually, I actually typed this one off.

Can you do the clothes?

I can't, I don't think I could redo it right now.

I always try.

Okay, so I always like to say something about how, like, the prosecutor gets the last word,

and I don't.

Oh, that's smart.

Yeah.

Um, so I just kind of like, you know, I'm like, so there, I'm not going to get to come

back up here, and you know, what's the most important thing about an argument?

When you argue with your spouse and your friends, what's the most important thing about an argument?

Um, and it's getting the last word.

Well, I don't get to do that today.

You know, he gets to come back up last.

That's just what the rules are.

I'm going to have a lot of things to say when he comes back up here, but I don't get

to come back up here and say something.

What do you think, like, the psychological function of that is?

I just want them to know, like, that I'm not, like, he is getting the last word here

because of the rules, not because I don't have anything else to say.

Yeah.

For the longest time, I would sit there and seethe while they were talking shit.

That's right, though.

And now I feel better, like, putting it out there, like, hey, I'm not going to come back.

I'm going to want to come back, but I don't get to.

Yeah, I think it, yeah, guards against shifting the burden, too.

Yeah.

And they're like, well, why didn't she, why didn't she say this?

Why didn't she make this point?

Because I don't get to.

So, like, if you have questions, that's reasonable doubt.

My whole thing was, like, Greg's not a criminal.

That's my client.

He's not a criminal.

He's a good Samaritan trying to help his community out of necessity.

And the potholes are excessive and large, that people were at risk of significant damage

to his vehicles, and that they'd been there for years without repair.

And then I kind of, like, went through the story, like, you know, the chief tells him, like,

you're not supposed to do that.

He says, okay.

He doesn't do it.

He calls the maintenance people the next day.

He didn't, he, you know, when he talked to the chief, he didn't lie about it.

He was honest.

He was even helpful.

He said, I'll save you the trouble.

I did it.

I talked about the pictures.

Oh, I forgot this.

When I said the pictures, he's saying that he took them within a week of when my guy got

charged and when they were allegedly painted, right?

Well, he says, I took those, but, you know, and I was like, so either, either you took these

pictures at a different time, or the spray painting didn't happen at the time it was alleged to

have happened, or something else, or this spray paint is not really permanent damage, like.

Oh, because of how faded it was?

Yeah.

And then I kind of talked about, like, criminal mischief, like, what is that?

It's a troublemaker.

You know, when you think of mischief, what's mischief mean?

It means it's a troublemaker, and you think of graffiti on a wall, but that's not what

we're talking about here.

He's not trying to make trouble, you know, he's just.

He's trying to save people from trouble.

He's the volunteer firefighter, and it's in his nature to help the community, and that's

all that he's doing.

He's anti-mischief.

Right.

Then I went through the instructions and elements and stuff, and hammered on that privilege definition.

I want you to look very closely at that definition, and it says, growing out of necessity.

That's what we were doing here.

This was a huge problem.

Remember, all of you?

Remember that you've hit those potholes, and you would have liked a warning?

That's all he was doing, is trying to keep people like you from hitting potholes and damaging

your cars.

That's good stuff.

Perfect.

Could you tell if they were vibing with you?

Were they nodding along?

Were they leaning in?

I couldn't read them at all.

Did they give you a standing ovation?

No.

Just the alternate.

Okay, so you close.

It's great.

They're stoic.

But deep down, you know you have the crowd.

And then state stands back up.

Do they say anything new?

Not really.

I mean, I think that's when he was like, I'm not calling this guy a criminal.

I just want you to criminally convict him.

But he broke the law, and he should have consequences for it.

But yeah, he's got to say something.

I mean, he's like a volunteer firefighter.

He saves puppies from trees.

He's making sure people aren't tripping on sidewalks.

The bad guy, you know, for offense move, is not going to work.

Right.

He's got to say something.

And it was long and long-winded, and I'm sure boring.

What's the total minutes, if you had to guess, if you combined his first and second closing?

Over 30 minutes.

Ooh.

That's wild.

That feels like the longest part of this whole trial, like longer than any of the testimony.

It is.

Okay, so now the jury has it.

They get it on day two at what time?

It was between 2.30 and 3.

Okay.

Okay, so they have time to deliberate.

How are you guys feeling?

How's your client feeling?

How are you feeling?

I was super nervous, especially after what he said on the stand.

That's terrifying.

But, like, other people, you know, I'm back at my office talking to everybody.

I'm waiting.

And everybody's like, you got this in the bag.

And I was like, I don't know.

It's easy for everyone else to say.

It really is.

It's really difficult when you're waiting for a verdict.

Did they have any questions or anything?

No.

No, they were out for a little way over an hour.

How's your client doing over this hour?

Is he in your office?

Or were you just like, go get a snack and I'll see you later?

Yeah, he was just hanging out downtown.

He was not in my office.

And, you know, like, I like this guy, but I need to, like, get a break.

No, you spend a lot of time.

You're, like, on for so long.

You just want to go back to your office and, like, slouch in a chair and not, like.

Well, yeah.

I started to nod off on my couch, but I didn't have anything here.

You got the call.

Yeah.

When I have an assistant that works part-time, and if she's there, I give her my phone and

say, when this person texts me, come lay me out.

Is that what you did?

Oh, that's so great.

I don't know.

I didn't have anyone there, so I had to stay awake.

Listen, Stephanie, we have staff.

We don't have staff that'll do that, so it's a different beast.

I can't tell my admin, listen, Wendy, when this person calls me for a verdict, I'll be

asleep on my floor.

Well.

So, you're on your couch, and you get a phone call?

Yeah.

I got a text.

You have a verdict.

I have a verdict.

So, I text my client, I text the Channel 5 News girl.

I was, like, the last one back there, because everyone else was closer than me.

How are you feeling when you get the verdict?

I mean, like, when you learn that you have a verdict.

I'm nervous.

I'm so nervous.

Because it's quick.

I mean, this is a low-risk jury, but I wanted to win it.

Like, I really wanted to win it on principle for my guy.

And the news is there.

Yeah.

Not in that order.

Just kidding.

Mortified if I lose.

Everyone in Cincinnati is going to know.

Okay, so you come in with a client.

Is client calm?

Yes.

Yeah, he was really calm.

He was calm the whole time.

Okay, so let's talk about the moment when you heard the not guilty.

Uh, it was not that eventful, actually.

I was really excited.

I turned to my client and smiled, and he smiled, and, like, it was not as eventful as I would

have expected.

Yeah.

But he also wasn't, you know, like, facing prison time or something.

Right.

So no tears, no hugging, no.

But still relief, I'm sure.

Oh, yeah.

Absolutely.

Yeah.

He was thrilled.

He was so happy that he got to talk to the news.

Yeah, finally, you let him off the leash.

Okay, you can talk now.

Go ahead.

He's like, give me that mic.

I don't care.

Yeah, he, they interviewed him after trial.

He was chomping at the bit, and I was like, do not talk to anyone.

No one.

Until this is over.

Right after the not guilty, he was out in the hallway getting interviewed.

Did you talk to the, did you talk to the jury afterwards?

I didn't.

I have regrets.

I always, I must always talk to him.

And now I, and the one time I didn't, I really wish I would have.

Yeah, I'd like to know their thought process.

Maybe if any of them are listening.

If you're listening, you know, call in.

Let us know.

You can catch us on.

It's kind of fun, though, because you never talk to the jury, and so we'll never know

if they nullified it, or if the definition was enough for them.

Right?

Yeah.

It's a mystery.

What did your client say to the news?

It was something to the effect of he hoped that they learned their lesson, and they fixed

the potholes, and something like, they could have spent all this money fixing the potholes.

That's true.

Well said.

That's real.

Do we know, I can't believe, I can't remember if I asked this already.

Do you, do you know if they fixed the potholes?

Um, since trial, I don't know if there's been a change, but, like,

day of trial, after all this is going on, the potholes still hadn't been fixed.

And there's hundreds.

Yeah.

Like, the officer was trying to, like, give all these excuses about, you know,

well, it was, you know, we can't do it when it's cold, whatever.

Well, he got charged in, like, May, you know.

And I'm like, okay, so now we're going back into winter, and some of the potholes still

aren't fixed.

So when are they supposed to get fixed?

Right.

You've gone through the summer months when you're supposed to do it, and you haven't

done it?

That really is unreal that they'll spend 36 billable hours of a volunteer prosecutor to

prosecute a jury trial M3 on that.

But the potholes still stand.

But they won't just fix a pothole.

Yeah.

Right.

Save your money.

Dismiss the case.

Fix the potholes.

There's going to be unrest in Lachlan.

I can feel it.

I can hear it.

It's rumbling.

Well, hopefully they all call me to represent them.

Yeah.

Yeah.

You can be the Lachlan queen.

Lachlan pothole queen.

Soon you'll be mayor, and then you can preside over the pothole trials.

Well, after we talk to people about not-guilties, we ask them what we call the ultimate question,

which is, why did you want to become a criminal defense attorney?

Oh, I did it at first, actually.

I thought I wanted to do immigration, and then I started working with a criminal defense

attorney, and I really liked it.

And so I kind of went.

I went with it from there.

I never really did immigration.

Cool.

When was that?

Was that in law school or just out of law school?

During law school, that's always what I wanted to do, but kind of for the same reasons why

I do criminal defense, to help people that need help, you know, like immigrants that need

to get, you know, have a reason to get in the country.

But right after law school, I started doing criminal defense with another attorney, and

I liked it, so that's what I kept doing.

What about it did you like?

Like, what keeps you in?

Well, I like helping people, and I feel like that's what we do.

But I also love being in the courtroom every single day and trying cases.

And there's like, you know, it's always something new.

Always.

I could not sit at my desk all day.

Yeah.

It's a sport.

Right.

And I love the clients, too.

Some of them drive me insane, but for the most part, I love them.

Yeah.

I think two things can be true.

You can love them, and they still drive you insane.

Yeah.

Yeah.

Some, sometimes it's the same person that I love that drives me insane.

Often.

Quite often, yes.

But that's why we do what we do.

Yes.

Well, great work.

Yeah, Cincinnati's lucky to have you.

Lachlan's certainly lucky to have you.

Yeah.

And thank you so much.

The citizens of Lachlan are, you know, grateful to you for cleaning up their roads.

I'm not guilty at a time.

And it's just another not guilty, but the first not guilty work client verbatim said, under

oath, that he knew it was a crime.

He did it, and he knew it was a crime.

Yes.

Thank you so much for being on our show.

We appreciate it, Stephanie.

Of course.

Thank you.

You're welcome.

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

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

And guess what?

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