Don't Bring A Gun To A Knife Fight - When self‑defense becomes a stage—and one defense attorney fights the script.

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So he grabs a knife in his head and he yanks it out. He sits down on the couch. He looks him in his face and he says, "I love you, man." And he falls over and dies.

That was his point. I couldn't go to the police because all the police would hear is that I'm a gang member and they would judge me off of that and nothing else.

And so the client looks at me and he's like, "You mean to tell me I can do that? That if someone is trying to, like, hurt me, I can kill them?" And I'm like, you know, that's kind of what we've been saying this whole time.

Right? And he's like, "So I can do that. If he was trying to hurt me, I can stab him." And I said, "Yes, if you're defending yourself." He said, "Well, that's what happened. So I should win."

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.

You're not guilty.

Welcome back for another Not Guilty, another week.

Nikhil is with me today.

In this amazing law library.

We are in a different studio today.

Yeah.

Our studio is an actual law library of a private defense attorney's office.

Right, Nikhil?

Yeah, it's amazing.

I haven't even seen these books before.

We've got law books, which we're going to take pictures and maybe put them up on the website.

It's like these antiques for most of our listeners out there.

They don't know what these law books are.

We're here with the great Javon Blacknell.

I don't know about the great, but...

And then also, I mean, we have this cool table and there's like a street with some cars.

Is this how you do like accident reconstruction right here or with your clients?

One of the attorneys in the office here does a lot of car accidents.

And so, this is how we get people to describe to us.

What happened?

Go ahead.

Go ahead.

Show me on the red car where the blue car hit you.

Right.

Go ahead.

Show me.

Okay?

Where did that blue car get you?

Right, right.

As you were traveling at the speed limit within your lane, paying attention.

You were using your sex crimes prosecutor voice.

I got that.

I got that.

I got that.

I got that.

Where did that blue car get you?

Oh, that's so bad.

All right, but we're really excited to have you on here.

You know, a former great public defender and now, I'm not going to lie to say, a great private

defense attorney.

Yeah, and I know we used to work with Javon in Compton when Nikhil and I were just little

misdemeanor lawyers and Javon was like a god.

Still a big time lawyer.

Just like this guy walking around was like this awesome dude.

So, we looked up to you, Javon.

Thanks, I appreciate it.

Okay, so, tell us about this case that you're going to share with us today.

What were the charges?

So, it was one charge of murder and then the lesser included of second and the voluntary

manslaughter.

So, what happened, so the client of mine, he calls his sister and he tells his sister,

he asked his sister, can I borrow your car?

And he and his sister were, they were close, but they weren't, you know, he was, you know,

she hadn't seen him in a little bit and she didn't know exactly where he was standing and what was going on with him.

So, he calls and asks, can he borrow, can he borrow her car?

And the sister says, for what?

And he says, this guy was bothering me.

I killed him in self-defense and I need to get rid of his body.

And the sister is, you know, first she doesn't believe him.

She's kind of like, are you telling the truth?

And he persists like, yeah, I need to borrow your car.

And so, she makes up an excuse and says, well, hey, let me call you back.

My boyfriend has my car right now, let me call you back.

And so, she freaks out because she thinks that somehow this is going to implicate her.

And so, she calls the police.

And she tells the police, hey, my brother says he killed somebody.

Somebody was bothering him and killed him in self-defense.

And he wanted to borrow my car.

And so, the officers are asking her like, basically, do you think he's telling the truth?

And she says, I don't know, maybe, possibly.

And so, they said, well, call him back.

Tell him that you'll give him a car and we'll give you a car to give to him.

So, wow.

This is like on, what, she calls 911 and they establish this plan?

I mean, how?

Right.

She calls 911, they send her to a detective and the detective establishes this plan.

And so.

Some pretty spontaneous thinking right there.

Detectives call back.

So, let me make sure I say it correctly.

When she calls 911, they put her in contact with the detective.

The detective doesn't make the plan right then.

He calls her back like the next day.

Okay.

Say, hey, this is what we're going to do.

You call your brother back.

Tell him that you have a car and we'll give you a car.

And so, she does.

She calls him back and tells him, you know, I have a car.

And he says, you know, what kind of car do you have?

She says, I have like an SUV.

And he knows she doesn't drive an SUV.

And so, he asks her like, where'd you get that from?

And she says, I can't think of the term.

Sancho?

Like the guy that's messing around with your girl, Sancho?

Like the sublime?

Yeah.

Yeah.

Like she has a Sancho.

A Misteress.

Right, right.

I got you.

Right.

She has one of those and this is his car.

Okay.

And then she's going to give him this car.

And so, he buys it.

So, she shows up to, he gives a location where he's at.

And she shows up with the car.

The police are like in the bushes or whatever.

Surveillance.

Around surveillance, you know, after watching it.

Yeah.

And then she, she has a friend who follows her.

And she gets out of her car, gets in the car with her friend and then they drive off.

And the police are doing the surveillance of him.

And so, he goes back into the house where he's at.

And then he comes out, him and another guy.

And they're carrying a large object that's wrapped in like a carpet.

Maybe I missed this.

Where did the exchange happen then?

With the car?

In front of someone's house?

Right.

She goes, he gives her the address of the house where he's at.

So, he's at a house.

Okay.

And she comes to the house where he's at.

And it's just like the movies, just the large carpet, right?

Right, right.

It's a large carpet.

Two guys are carrying this like rug just wrapped up.

Yeah.

They load it into the back of a car.

The client gets in the backseat.

The other guy gets in the passenger seat.

And then there's a girl who's driving the car.

And they drive.

And then the police pull them over.

When the police pull them over, everyone jumps out of the car and runs.

And they catch everybody.

And then they go to the car.

They open it up.

In the back of the SUV, there is, in this large carpet, there is a decomposed human body.

It's about four days old.

Okay.

So, it's bloated.

It is multiple stab wounds.

It's completely bled out.

No more blood in the body.

Inside the backseat, there is a large container of gasoline and matches.

The body is bound with like phone cords.

The hands are tied behind the back.

The feet are tied.

The pockets in the body are, the pockets, the clothing, the pants pockets of the deceased body are like turned inside out.

Is that suggestive of anything?

Like a robbery?

Or some type of torture?

That's how the prosecution saw it.

The person had been robbed, had been tied up and robbed and multiple stab wounds, some in the head, some all over the body.

And it was clear that it had been, you know, it had been for multiple days.

They get statements from the girl who was driving the car.

And the girl who was driving the car basically says that the client told them that he killed this guy.

And he had killed him in an abandoned house next door.

And he needed help getting rid of the body.

And they helped him.

And who were they to him, this girl?

The girl who was driving the car was the girlfriend of the guy who was helping him.

Okay.

The guy who was helping him was a member of the same gang.

So they were friends.

Okay.

Those were the basic facts.

And how old or young was your client?

He was a, I believe he was 24.

Okay.

Which was another issue that came up in the case.

He was 24, but the two people he were with were like 16 and 17.

Oh, wow.

But he was a, he was a young 24.

You know, he's a person who likely struggled through school and, um, and probably had the like mental capacity of someone much younger than him.

And the decedent, how old was the decedent?

Uh, he was, I want to say 22 or 23 years old.

And the other two, the, the driver, the girlfriend, the boyfriend were charged with, uh, accessory or?

Because, because I take it back.

She was 18 cause she got charged as an adult.

And then the boyfriend was a, was a, was a, was a, a juvenile and he disappeared.

He and his family moved, disappeared.

They actually burnt their house down.

Really?

But how did they get out?

You know, he's arrested and he got out of custody somehow?

He was out.

He was out of custody.

Um, because they were only going to charge him with being an accessory.

He was out of custody and, uh, his family's house got burnt down and his family disappeared.

Prior to trial?

Prior to trial.

Like, and is there some insinuation that they did that themselves or were they chased out or just, we have no idea.

So the, um, the decedent, um, the decedent is from, was a member of a gang.

Okay.

Uh, and the house where all this happened at.

The abandoned house.

The abandoned house is right next door to the house where the boyfriend and my girlfriend lived at.

Um, uh, that was in the decedent gang's neighborhood.

Okay.

But the, the defendant and the two people who helped him, the girlfriend, the boyfriend, they were not part, they were part of a different gang, but it was a friendly gang.

Mm hmm.

And so, uh, you know, and so, so, so, so, so let's say the defendant is part of gang A, the decedent is part of gang B, but all this is in gang B's territory.

Mm hmm.

And so they're friendly until gang A kills somebody from gang B and then gang B gets upset and they burn his house down.

Okay.

This is, this is pretty intense.

And then when you also said something about like, it became apparent that this had gone on a number of days.

Now, do you mean that the body had been decomposed for a number of days or that the insinuation or the implication is that this guy was tied up and stabbed and, and injured and alive over a course of days?

No, no.

The, the, uh, the person was, was killed pretty quickly.

Quickly.

And, but it had just happened days ago.

It got it.

And the body had decomposed to it.

And that was obvious.

Right.

So those are the basic facts.

You get the case.

Mm hmm.

Read the police report.

What was your first step in the case?

You know, I go and I meet in, I meet with the client and I sort of get the story, the rundown.

Uh, one of the odd things about the client is that all he wanted was, uh, he wanted 20 years in prison.

Mm hmm.

That's what he says.

He says, you know, they give me 20 years.

I'll take it now.

Uh, um, he's like, you know, I just, you know, it's kind of been rough on me out here.

I'm struggling.

I don't really have a stable place to stay.

You know, my sister kind of turned on me.

Mm hmm.

And so, you know, he said, give me 20 years or so.

Then I'm willing to accept that.

Um, you know, um, he was adamant that he did this in self defense, but you know, he's, he was a, he was a gang member.

He had gang tattoos.

Facial tattoos.

No, in his face.

Okay.

Uh, but his, his gang had a particularly bad name.

Yeah.

I got you.

And, uh, um, and he just said, you know, no one's going to believe me.

No one's gonna, you know, buy my story.

And so, you know, just give me 20 years and I'll, and I'll, and I'll, and I'll go with it.

So did they ever offer him close to the 20?

No, no.

I asked him because they, cause he asked for it and they scoffed at it.

It was.

How dumb.

What a ridiculous.

20 years.

We need more than 20 years.

Um, so they want 25 to life.

That's what your client was facing.

Are you?

No, he was facing 25, 26, cause they, cause the body was stabbed.

And, uh, um, the knife enhancement, the one year knife enhancement.

They wanted that.

They wanted that.

So they want, they want, they wanted what you would get.

All right.

Right.

Right.

That's the one.

And the D field, did you want to sell the case?

Did you want to take it to trial?

Like, did you?

Um, I mean, just superficially, I would look at this case and, you know, the description

of the, I'd be like, we're probably not going to win.

Well, this is what I thought.

Well, cause the, the, the first conversation with the sister, he told the sister that I killed

this guy in self-defense, uh, and there was no account of what occurred.

Like no one knew how this happened happened days ago and the body had been laying around

for days.

No one knew how it happened.

Um, and the only account of how it happened was his story.

And so the question became, you know, is his story plausible as to what happened?

And if it is plausible, then how did they disprove it?

And they didn't have a way to disprove it.

So then what, what's, what's his story then?

So at the time he was, he was kind of, he was homeless basically.

And he was living with this friend, the friend who was a juvenile, but the friend lived with

his parents and the friend's parents kind of converted their garage.

Oh, is this the guy that disappeared?

This is the guy that disappeared.

Okay, got it.

And so they're, uh, and so that guy lives in his garage, his parents garage basically.

And, and he, he lets the defendant comes over there and he lets him stay in a garage with

them.

And so the, the Seton, uh, was like a friend of theirs.

Um, but as I said before, they, this all was in the decedent's gang neighborhood.

And so the decedent was sort of a, um, he was, I wouldn't say he's bipolar, but he would,

he would change, you know, because he was kind of, he, he had an upper hand cause they

lived in his gang's neighborhood.

So some days he'll be like, you know, Hey, what's going on?

Everybody's cool.

You know, we're hanging out.

We, we get high together, all that stuff.

And the other days he's like, you know, you guys lucky I let you come around my neighborhood.

Right.

And he's like bullying them some days.

And so it's just kind of how he felt.

And, uh, and some days he felt like being an ass and some days he felt like being cool.

And so that's how it went.

Uh, so according to, to the, um, to the defendant, he's in the garage, he's sleeping on the couch

where the decedent comes in, uh, and the decedent wakes him up with a gun to the side of his head.

He starts to, um, like demand him, give him some money.

I mean, give me, give me some money.

I need some money, you know?

And, uh, uh, and so they get up in there and he's like, man, what are you doing?

Stop tripping, put the gun away, whatever.

He's like, no, give me some money.

He's sort of, he's bullying them, which is, which is he's, he's prone to do from time to

time.

Uh, the defendant, he grabs the hand with the gun and, and, and he, and then he reaches

and he grabs a knife that's there, uh, like tucked under the couch.

They, there's a knife tucked under the couch that they have in there for safety.

And he grabs the knife.

And as he's fighting with the decedent over the gun, he's stabbing him.

Uh, and he's stabbing his arm with where the knife is.

So the decedent had maybe like 20 stab wounds.

Oh, wow.

But they're all up the right side of his body.

It's all like, like I'm stabbing him in this area while I'm, while I'm holding the other

hand, I'm, I'm stabbing him with this hand.

And, um, and I just keep stabbing and stabbing and stabbing until, until he stops.

And so he says that, uh, he, he's stabbing away and the guy is still fighting.

He's like, just, just let the gun go.

Just let the gun go.

And, and, and the decedent won't let it go.

And then he finally reaches back and he stabs him in his head, like, like in his forehead.

And he says, like the knife gets stuck in his head.

Um, uh, he says he lets the gun go.

And he says, and so now, this is like out of the movies, man.

Now, right, right.

Now they're standing like face to face and the guy has a knife in his head and he lets

the gun go.

And, uh, uh, how long is the knife?

It's like a kitchen knife.

And so he, uh, like a butcher knife.

And so he grabs a knife in his head and he, and he has to like, like yank it out.

Cause it's, it's, it's like jammed up in there pretty good.

And when he yanks it out, the, um, the decedent sits down on the couch.

Cause there's all this on the couch.

He sits down on the couch.

He looks him in his face and he says, I love you, man.

And he falls over and dies.

Holy.

Whoa.

That's, uh, that's some real shit right there, man.

Um, so, uh, so what he does, he has to get rid of his body now.

Because he, he doesn't feel right.

Like that he can just call the police and tell them what happened.

Right.

So he takes the body and he puts it into a, a trash can, like a, like outside rolling,

which you were like where the garbage man comes pick up your garbage on the weekends.

He puts it in the garbage can and he wheels them over to next door to the abandoned house.

Got it.

How big is the decedent?

Can you describe him a little bit more?

He was a fairly small guy.

He was, um, I would say he was like five, nine, 150 pounds.

Okay.

And how big was your client?

A similar size.

Yeah.

Very, very similar size.

Okay.

And he, uh, he wheels them over there to the, to the next door and he dumps them over into

the, in the garage.

And so the, um, the crime scene was sort of suggesting that that was the case.

There was a, like a trail of blood.

A pool of blood from one garage over to the next garage.

Uh, there was a, like a pool of blood, like in one area in the, in the abandoned garage would

suggest that he had been dumped there in that one area area and then bled out in that one

area.

So, but that's what he did with it.

And so he took him over, he dumped him over there and then he said he went and he got high.

Just kind of numb the experience.

Yeah.

Yeah.

And then, you know.

We're kind of high.

Meth.

Okay.

Uh, a few days later, he's like, I can't just leave this guy's body over there forever.

And he calls his sister.

And there's, you said there was blood in the garage, the garage, right?

The garage where all this happened at, there was, uh, so they clean up most of it.

Okay.

Uh, but there was still like stains on the couch.

Mm-hmm.

Stains.

Uh, there were some stains left.

And then there was, then, then there was a trail leaving the garage.

So there was like stains, stains in the grass and on the, uh, concrete leaving the garage

and going over.

Cause the, the, the two houses are next door and they're connected is the alley.

Mm-hmm.

So it goes out of the back of the garage into the alley, into the yard next door, into their

garage.

What about the decedent?

Did the decedent have like, did you bring up things or did you investigate the decedent's

past conduct or felonies or.

She had a prior robbery that he had done prison, he'd been in prison for.

So.

With a gun?

No, it was not with a gun.

Okay.

Uh, however, um, one of the mistakes the prosecution made is that they worked out a deal with the

girlfriend to have her tell the story.

Uh, basically that the, um, that the defendant had told her that he had killed the guy and

asked her for help.

And so they ended up giving her, like, uh, uh, she ended up pleading guilty to being an

accessory and she testified.

Um, but no one, uh, she had made it clear to me that, you know, she was, she didn't think

that the defendant was a bad guy and she thought he probably was defending himself.

And, uh, but the prosecution hadn't really thoroughly like interviewed her.

Uh huh.

And so when she testified at the trial, uh, I asked her, did you know the decedent?

And she said, yes.

And I asked you, did you know about him and his propensity for violence or, um, aggressive

behavior?

And she said, yeah.

And she told the story about how he once robbed her.

Wow.

Didn't ask.

Did you know that that happened?

No, I didn't know.

I didn't know that the reputation might come in.

Right.

And she thought that he was, that he was kind of like I was explaining that he would, he

would change.

On certain days he would be, you know, uh, a jerk to them.

On certain days he'd be like, okay, you know, it's cool.

Um, and so she told the story about how she caught him on a bad day and he said, I want

your phone.

And, and she took it as a joke.

Like, Hey, this is our friend.

He's always like messing around.

But then he was like, no, I really, and he took her phone and he made her give it to

her.

He threatened he's going to beat her up and she was scared of him and she gave her a phone.

And so it was, it was, this was what he does, uh, on either, either he was, you

know, tweaking and he wanted to get high or, or he just, you know, liked the power that he

had over them because they were in his territory.

Right.

Kind of with his permission until he doesn't want to give you permission.

Hey, this is David from another not guilty.

If you like this podcast, go ahead and subscribe or follow us and go ahead and write some comments

and tell your friends.

Thanks.

All right.

Well, let's, let's jump to the trial.

Then you can't resolve the case cause they want 25 to life, 26 to life, 26 to life.

They wouldn't even strike, uh, strike the, the knife enhancement.

Yeah.

You're, you're asking for 20, right?

20 years.

20 years.

Very, uh, very reasonable.

So you get sent out the trial, right?

Yes.

You get sent to a, a courtroom where a judge you've been in front of before is a new judge.

No, I've been in front of before.

Okay.

Okay.

Did you like your draw?

Uh, I can do worse.

Yeah.

Okay.

Good.

That's a good attitude, you know?

And, uh, so you're approaching your case.

Yeah.

You're going to do jury selection, uh, voir dire.

I imagine your main point you want to stick with is, uh, self-defense, right?

Right to self-defense.

And are these jurors going to be okay with that?

Right?

Yeah.

So there were two main issues that I wanted to, uh, address, you know, you know, first

was self-defense, um, because anytime you do a self-defense case, you all, you always

have to be confident that the judge is going to give you a self-defense instruction because

you can, you can present the self-defense as a theory and the judge say, no, I don't

think it's a viable theory and therefore not give you the instruction.

How, how did you approach self-defense with the jury then?

What do you mean?

What do you do on, on your voir dire with the jury?

Oh, so what's the, I have a, I have a self-defense case coming up.

I need it.

I need to know.

As do I.

So, well, well, so certain things to people that, that if you got a self-defense case coming

up, you got to understand about California law against self-defense.

Right.

And so, uh, the law, you know, a few years ago when the Trayvon Martin case happened and

there was a large discussion about the stand your ground law in Florida and how unjust

or unfair that law is.

And what people, a lot of people don't understand is that California has the exact same thing.

Yeah.

Right.

You know, you can stand your ground.

You don't have to retreat.

It's, it's part of the California law.

And so we wanted to make sure that people understood that because people who, uh, and so I ask questions

that, you know, if the law allows you to stand and fight, you know, would you give someone

that right?

You know, even if you think they shouldn't, even if you think they can get away and be

free, you know, would you allow them that right?

And I'll give them, I talk about Dr. King and people who don't believe in self-defense

that they think that, uh, you know, it's not, it's not appropriate conduct.

But if the law allows you that, would you, would you be okay with it?

The other thing that we-

So wait, would you kick Dr. King off your jury then?

Yeah.

Yeah.

Gotta go.

Javon Blacknell, a civil rights attorney also.

Right.

Would kick Dr. King off his jury.

Off his civil, hold on, off his self-defense jury.

Right?

Like, that's the, might get up the right jurors who like it.

You know, I don't, I don't, you know, and I'm, you know, I said I have joking 'cause

I, 'cause I think a person can think that certain conduct is appropriate, but still afford

you the right to do different conduct.

Right?

And so, uh, so I don't know how he would vote on that situation.

But yeah.

The other thing is that self-defense, uh, does not require fear.

People always think that you have to be afraid of your assailant in order to use self-defense

and you do not have to be afraid of them.

You know, you just gotta, you only have to be afraid that they're going to use force against

you.

So you can be the bravest soul in the history of man and still be able to use self-defense.

Uh, just as long as you believe that this person was about to use this force against

you.

And so, uh, you know, we talk about, uh, those sort of things, uh, you know, would they allow

someone those rights?

Basically would they follow the law as self-defense is in California?

And we get jurors who, and they were on board with that.

And they were on board with that?

Obviously the 12 that you picked were.

Yeah.

But like, were you getting like, brush back by people?

Or?

Oh yeah.

Some people would say, you know, no.

Uh, um, uh, or like, um, if, if, if the person who's attacking you doesn't have a

weapon, you can't use a weapon, which is not the, was not the law.

Or, um, they would, uh, uh, you know, say, well, you should try not to kill them.

You should try to, to injure or whatever.

And, you know, we get all kinds of brush back.

And then, uh, uh, but, but overall you'll get people who tend to either agree or willing

to accept the law as it is.

So I talked a lot about self-defense, but I also talked, uh, we also brought some 402

motions to exclude all the gang stuff.

Cause there was no gang enhancement on the case.

Okay.

Um, but they were all, they were gang members, but they were friendly gang.

And so the judge, so, so the prosecution was having a hard time with presenting, you know,

this is a gang case that he did this to benefit his gang.

Cause it wouldn't benefit his gang in any way.

It would only hurt his gang.

They had no story as to what happened other than you killed him and you both are from gangs,

but you're friendly gangs.

Got it.

And so they, they didn't really have a story.

Uh, and so we, I, I fought to keep all reference to any gang out.

Um, even though it was always my intention that the defendant would testify and that the gang

stuff would come up.

When he talked about, when he talked about why, you know, you know, the, the, the animosity

he had was the, with the, uh, with the decedent and why he didn't go to the police.

The gang stuff would come up, but I wanted to control how the gang stuff would be presented.

So you won that 402?

So yes.

So we won.

Great.

And so, and so the judge excluded all the gang evidence.

You can have, ask the judge to exclude all evidence of the gang membership.

This is the prosecutor mentioning it.

And then when it's your case, you can bring that up.

I brought it up.

Does that violate the 402 or not?

No.

Well, did the prosecutor ask that Javon exclude any 402?

Prosecutor wanted to use it.

Yeah.

And so he was happy that I brought it up.

Right.

You know, you want to control how the evidence is presented.

You always have to appreciate how information affects the listener.

And, uh, and so there was a point that I want to make.

And so what I, what we did is that we excluded it all.

And then when he testifies, we tell the whole story about the gangs and all that stuff.

So the prosecutor has been waiting for like two weeks to bring up his gang.

He couldn't wait.

Even he wanted to do it in jury selections.

He wanted to do it, you know, at every stage of the case.

Right.

And so finally he gets his chance for cross-examination.

And he spends the first hour talking about gangs.

His gang, his name of his gang, his various gang tattoos.

He would ask some questions about, like, how long did it take you to get the tattoo?

You mean like in the tattoo chair or whatever?

Yeah, right.

How long did you have to sit still to get that tattoo?

And, you know, did it hurt?

Uh, uh, and then, and then, you know, and go through each of his various tattoos.

He had the name of his gang tattoo across his fingers.

He would go through these and why it was important.

He put them on his hand because he wanted people to see his hands.

And I mean, he spent the first hour.

And at the end we, I'm arguing to the jury.

And that's like the quintessential example.

This guy just told you he killed somebody.

Mm-hmm.

And the only thing you want to talk to him about is being in the gang.

And that's what, that was his point.

I couldn't go to the police because all the police would hear is that I'm a gang member.

Mm-hmm.

And they would judge me off of that and nothing else.

And it was a, boom.

Legal jujitsu right there.

I like that.

I do like that.

Um, so, I mean, almost, I would say the regular murder stuff is mostly undisputed by you,

right?

Like the coroner, those types of things.

You're just corroborating the, I guess, forensic evidence that you wanted about the blood trail

and the blood pooling.

Yeah, we're, we're making a point that the evidence was consistent with his story.

Mm-hmm.

And so, so some of the stab wounds were like in his back, but they're all like on the same

side of his body.

Mm-hmm.

But they're in his back, in the decedent's back.

And so we are sort of, you know, having the coroner asking him, are these wounds consistent

with this sort of movement?

And, uh, and so most people think you got stabbed in the back.

It's like, I'm standing with my back towards somebody.

I'm like walking away from them.

And then they're stabbing me while I'm not looking.

And it's not that case.

If you're like in a combat, and we're like almost chest to chest.

Mm-hmm.

And I'm sort of got a, or like a, like a wide round house time, type movement with my arm.

Mm-hmm.

Then I can hit you in your shoulder and your side.

I hit you in your back.

Um, I hit you, you know, wherever it is that, that it might land.

And your body's moving, moving.

You know, you are, when you see me swinging, you don't stand still.

You might turn your body in a way.

Trying to avoid the sound.

Trying to avoid the hit.

Or trying to, you know, brace yourself for the hit.

And it ends up hitting you in a certain area of your back.

But they were all in this sort of, in the same general area on the same side of his body.

Did you, okay, I mean, I think we jumped into direct evidence.

But did you give any version of your client's story an opening statement?

Or did you just kind of say, it's going to be self-defense, hold on and wait?

No, I told the whole story.

You told the whole thing?

The whole thing.

You basically, basically a second telling of your client's testimony.

Right.

Okay.

And that's the first time that the prosecution had heard?

Had never heard it.

Oh, wow.

What was his reaction doing?

Or her reaction?

I don't know about his particular reaction at the time.

Uh, but I think that that became the narrative.

He began to try to attack the story.

Instead of presenting his case in the way that he was going to present it.

Mm-hmm.

He was presenting his case in defensive.

Mm-hmm.

Trying to disprove my story.

And it was a story that was consistent with the evidence.

And I just had to make those points out.

Yeah.

Hey there.

It's your buddy, David, from Another Not Guilty.

Would you like to be a guest on this podcast?

Have you experienced The Not Guilty before?

Either as a defendant, a defense attorney, a prosecutor, a juror, a judge, a bailiff, a court reporter?

I don't know.

A clerk?

Who knows?

But go ahead and visit our website at anothernotguiltypod.com and fill out the submission form.

And while you're there, check out some of that cool A&G merchandise.

Thank you.

And then, uh, for your case, you put your client up?

Yes.

He testifies.

And so, so what we did, when he testified, we brought in the couch.

What do you mean you brought in the couch?

I brought it in.

We brought it to court.

Who brought it in?

What do you mean?

What do you mean?

You got your homies to bring that?

Right.

Walk it on the couch?

Right.

Was it, so what, it was photographed in evidence and then did they collect it?

Uh, no, it was, uh, uh, still at the house?

It was, uh, yeah, it was at the house and we took, we brought it in and brought it into

the courtroom and set it down in front of the jury.

And did the security give you any problems about bringing the couch in the court?

No, you know, I mean, they, uh, you know, I cleared it with the court and stuff

and, and, you know, they said, all right, and we brought it in, put it in the elevator.

Did you have to give notice to the prosecutor you were going to give the couch in?

No.

Got it.

So you just, you just have this very Matlock moment where you like point to the door and

then swings open and the couch gets watered.

No, so, so, so the jury is like, uh, and so I tell, I clear with everybody.

Okay.

So I bring the couch in, the jury's in the jury room.

Mm-hmm.

So when they come out, there's a couch sitting in front of them and then defendants understand.

Okay.

Uh, cause the judge has me, has him take the stand before they come out.

Okay.

So they don't see that he's in custody.

Right.

And so, and so they come out, they get in the chair and, and so this guy who they've been

sitting, sitting, who they've been seeing sit over there for, you know, the last few weeks

is now in the stand and they swear on him and there's a couch in front of them.

And so they're just all looking at the couch, you know, what's, what's going on with this couch?

They're like me right now.

They're like, really?

Like, this is a crazy concept.

Okay.

Okay.

And so we go through the story.

And so I get one of those knives, like fake knives that like, if you stab somebody, the

blade like goes into the handle.

Into the handle.

Yeah.

Like those drama knives.

Yeah.

And they said, all right, you're going to be you and I'm going to be him and we're

going to act this thing out.

We're going to show the jurors what happened.

And so everything was cool.

And then the bailiffs said, no, no, no, we can't do that.

We can't do that.

We can't have him moving around by the jury and we don't want to give him any weapons.

And so I have to go recruit another attorney.

Okay.

To come play him.

Does the bailiff say this in front of the jurors?

Like you're doing in the middle of your-

They do a sidebar and then, yeah.

And so he sits down and he narrates it.

Like what does he think he's going to do with the pretend knife?

You know, like attack the jurors with it or like-

They said no.

And so he narrates it and we just kind of, we walked through it.

And he would say no, like you got to lay like this.

You got to lay like that.

You got to stand this way.

And then he's like now start stabbing him.

Just get this.

And we tell the story.

So did you like have a pretend gun and approach?

No, no.

When he couldn't do it, I became him.

Okay.

And the other attorney became the person who was A.J. Bain.

He became the person who was the seat and who I was stabbing.

Guy, who's also like a martial arts expert.

So I'm sure.

Yeah.

Yeah, that's right.

He's very excited to, I'm sure, be stabbed.

So yeah, I killed A.J. Bain in front of the jury.

And so we played the whole thing out.

And the jury's like riveted.

Right.

They were standing up trying to watch and see where the wounds are and how I'm stabbing

him and how the bodies of movement are moving.

And then he tells the story, the rest of the story.

So he.

He.

And did the prosecutor object to this as being like, you know, experimental or, you know,

demonstrated demonstrative evidence that wasn't fairly depicting what happened or.

No, he didn't.

No.

And I don't think those would have been valid objections.

Yeah.

He's telling us this is what happened.

Yeah.

And.

And I don't know.

And we're just demonstrating it.

Yeah.

I'm moving.

And I'm only doing what he tells me to do.

Yeah.

And he's telling us what to do.

And we're doing it.

Did A.J. say, I love you, man.

And slump over.

Yeah.

His little death gurgle.

Yeah.

I don't know if A.J.

I don't remember that.

I don't know if he spoke the words.

However.

Yeah.

That part came out.

So.

And so.

And so he'll say, all right.

All right.

I stab him in his head.

Then I pull the knife.

And I kind of struggle to get it out of his head.

And he says.

Then he said, tells me that he loves me.

And I don't know if A.J. then repeated.

I love you.

But.

But.

But he certainly said.

He says, I love him.

And then he sits down and he slumps over and he dies.

So.

So we.

We.

We.

We play it out in front of the jury.

And then we go.

You know.

Then the prosecutor gets up and just asks him about his stupid gang tattoos for an hour.

He asks him about the gang stuff.

And then.

The.

So what the prosecutor did.

What I thought is just.

I don't know.

I thought it was a poor strategy.

Is that.

He.

Challenged.

Everything.

The defendant said.

Like.

As.

As.

As if it was untrue.

So.

Everything he said.

And so.

You know.

You didn't stab him that way.

You didn't stab him in the head like that.

You know.

As if it was untrue.

Is.

And.

No story.

It was just.

I don't believe your story.

And.

I mean.

What.

What are you really impeaching with at that point.

You're just basically.

You know.

Hostile tone.

Right.

Repeating what they said.

And saying like.

And basically.

You stabbed him like this.

Right.

And that.

Right.

Right.

It's when you.

It's kind of a grasping.

Defeated strategy.

And so.

At some point.

The client.

Is like confused.

By the prosecutor.

And his tactic.

And he's like.

Wait a minute.

Hold on.

Are you telling me.

I didn't stab him.

And.

And.

And.

And the.

And the DA's like.

No.

No.

I believe you stabbed him.

But.

You know.

You know.

It didn't.

It didn't.

It happened differently.

And he was like.

And.

And so.

He's asking.

And so.

One of the things.

The prosecutor.

Was questioning him.

Is when he.

When he tells.

How he got.

The body.

From the.

Location.

Where it happened.

I don't believe.

You went that way.

And I don't know why.

Because.

There's a blood trail.

There's a blood trail.

And he's telling.

You don't have a story.

Yeah.

So.

And so.

It was another time.

When the client.

Asked him.

He said.

Are you telling me.

I didn't.

Go that way.

And he's like.

Well.

What way did I go.

I don't.

And.

So your client's asking questions.

On the stage.

He's asking him.

Because.

He's getting confused.

Because.

He keeps.

He's telling you.

That I killed this person.

And I took this person.

Over here.

And you are trying to prove.

That I killed this person.

But you're like.

Challenging.

What I'm saying.

And he's saying.

And so the client stops.

And so.

Are you telling me.

That I didn't do this.

Like I'm.

I'm telling you.

I did it.

I'm not a lawyer.

I'm not a lawyer.

Right.

It's like.

It's almost as if.

If he was trying to be like.

If he had.

Trying to cling to.

Any nugget.

Of that original.

First degree story.

That he was trying to tell.

Right.

Where.

Theories of robbery.

The theories of being tied up.

Like those are the points.

To harp on.

Right.

The only things that corroborate.

An alternative version of events.

His goal was.

To convince the jurors that.

You know.

This person is unbelievable.

Hmm.

Um.

As opposed to saying.

You know.

Maybe some of his story is true.

Maybe he really did kill this person.

But it just didn't start off in that way.

This person.

Didn't have a gun.

And.

You know.

Things of that nature.

So did your client testify.

Why.

Why.

Did you have an explanation for the.

Um.

Arms and legs being.

Uh.

Tied up.

Yeah.

That when they.

Tried to pick up the body.

And move it.

The arms kept falling out.

God.

That's why I tie up my chicken arms.

Right.

And when I put it into the.

Right.

And so.

That's what I was thinking.

Right.

And so he tied them up.

Uh.

And the pockets being turned out.

He says.

He says.

We did.

I checked his pockets to see.

Whatever.

Whatever.

What did he have in his pockets.

But.

Um.

Yeah.

That's why he was tied up.

Trying to.

Put him in the.

The rug.

Trying to put him in the rug.

And then I put him in.

Garbage bags.

Um.

So nothing falls out.

To.

To.

To further.

Like.

Keep it safe.

And then.

Wrapped it up in the.

In the carpet.

So no one would know what it was.

Yeah.

So.

So.

So one thing.

That was a little funny is.

Um.

So.

So we were arguing over.

Uh.

Uh.

Uh.

Instruction.

Cause the judge you.

The judge won't tell you.

If you get it until after the.

Evidence is heard.

And then he decides.

Huh.

Was there some evidence.

That self defense is needed.

And he had.

Commented.

During the trial.

Cause he heard my opening statement.

That he wasn't.

Planning on giving it.

And he wasn't even sold.

After the client testified.

He was gonna give it.

Really?

He really wasn't sold.

And we had to argue over it.

And he was like well.

You know.

Is that substantial evidence.

You know.

Uh.

Is.

Is the client testifying.

To a version of events.

That.

That.

Hits every element.

Of self defense.

Right.

Is that substantial evidence.

I mean.

That's.

That's.

That's a ridiculous proposition.

Right.

Yeah.

He.

He.

He.

Back and forth.

And so.

Finally.

He.

He agrees.

I'm gonna give you.

I'm gonna give you.

The self defense.

The self defense instruction.

And so.

Okay.

And so.

The client.

Looks at me.

Literally.

And he's like.

You mean to tell me.

I can do that?

And I said.

Wait.

What do you mean?

He says.

That if someone is trying.

To like.

Hurt me.

I can kill.

And I say.

Yeah.

That's self defense.

That's what self defense means.

You know.

That's kind of what we've been saying this whole time.

Yeah.

Right.

Right.

And he's like.

So I can do that.

Like.

That's okay.

If he was trying to hurt me.

Then I can.

I can.

I can stab him.

I said.

Yes.

If you're defending yourself.

He said.

Well that's what happened.

So I should win.

It's like.

It's like.

It's like.

It just.

Right.

It just.

It just dawned on him.

He said.

What was I doing to say in 20 years?

Right.

I gave him the instructions.

And he took him with.

I don't know if he read him or not.

And.

And he's like.

So.

I can do that.

And it.

It literally just kind of.

Right.

You can do it.

I haven't.

Done a lot of appeals.

But reading appeals.

That seems to me pretty.

Outrageous.

That a judge.

Would not give an instruction.

For a defense that.

The defendant testified to.

During his.

Testimony.

I mean.

How did you feel.

When the judge was kind of.

Pushing back on.

I may not give this.

Instruction.

Did you anticipate that.

That was going to happen.

That he was going to.

After all the evidence.

Had been presented.

I don't know.

If I would say that.

I anticipate it.

But I did.

Think that it was.

A possibility.

Like.

Because he had made comments.

During the trial.

Yeah.

It didn't surprise.

I didn't think the judge.

Was great.

Uh.

I just thought I can do.

Worse.

And.

Um.

And this was a judge.

Who didn't come from.

A criminal background.

And.

Um.

And so.

It was my opinion.

That he didn't want.

He.

He did not want.

To give the instruction.

Simply because.

He didn't believe the defendant.

He didn't believe.

The story was true.

He didn't want to give the instruction.

And so.

He was looking for a way.

Not to give it.

And.

And it was only upon.

Like the arguments.

Where.

Kind of what you're saying.

He had to.

This is.

This is like.

This is an easily.

You're going to get overturned.

If you don't give these instructions.

I mean.

I just don't get it.

It's like.

Why.

Is he deciding.

It's not his job to decide the facts.

Wait.

No.

It's his job.

To base his decisions.

On how he feels.

About the evidence.

Right.

That's his job as a judge.

It's not.

It's not his job.

It's like.

No.

It's not.

He personally thinks the defendant's not guilty or guilty.

I think that's.

That's his opportunity.

So one.

So the.

The bench notes from the instruction says that the judge has to give it.

If it is based off like substantial evidence.

There's substantial evidence in the case that supports this theory of the case.

Then he has to give the instruction.

And his argument in essence was.

You know.

There wasn't really substantial evidence.

Your client just said it.

Right.

And.

And.

And.

And.

And.

Some higher burden of proof.

Some higher burden of proof.

Some higher burden of proof.

Some higher burden of proof.

Some higher burden of proof.

Some higher burden of proof.

Some higher burden of proof.

And so.

And so.

And so that's.

That was his way of like.

Of trying to get around it.

Not.

But you know.

Once we argued and we talked about it.

It was pretty clear that.

From the bench notes.

It's.

It's.

It's.

The defendant is.

Substantially relying upon that instruction.

Yeah.

On that defense.

And we clearly rely on the defense.

And it was clearly substantial evidence.

And.

You know.

So he eventually.

You know.

Gave in and gave it.

But there wasn't.

It wasn't without.

You know.

Some.

Some resistance.

You're saying he clearly did not believe.

He didn't believe him.

Is there anything he did during the trial.

That like.

Also conveyed this.

That.

Was he trying to be neutral or.

No.

So this is a.

This is a judge who is.

Like.

The mantra.

With his like.

Facial features.

His.

His gestures.

His reactions.

Are very.

His reactions.

Oftentimes his words.

The way he talks to you.

It would be like.

In a very condescending way.

Or something of that nature.

But when.

When the.

When the defendant was testifying.

When we got done.

With.

His direct examination.

As soon as.

As soon as I say.

You know.

I have no further questions.

And.

Now it's time for cross-examination.

The judge.

In a very dramatic way.

Um.

Like.

As soon as I say.

I have no further questions.

He.

He leans towards.

The DA.

And he has his big.

Like.

Smile on his face.

His eyes wide.

And he's like.

Cross-examination.

And.

Like.

Like.

Telling the DA.

And.

It was really clear.

That he couldn't wait.

For someone.

To.

To.

To.

To.

To.

Disprove.

Or discredit.

This.

This.

This witness.

And.

I think it was reflective.

In.

His analysis.

His legal analysis.

You know.

Throughout the case.

And so we come back the next day.

Uh.

To argue the next day.

And the DA argues.

For like.

Three hours.

Wow.

Uh.

On this.

I mean.

This is.

Three hours.

Right.

He argues like three hours.

He argues in the morning.

From like.

10:30 to noon.

And then he comes back.

And argues from like.

1:30 to three.

Oh my god.

He broke for lunch.

Came back again.

Came back again.

Argued.

For a long time.

I would say.

Yeah.

About three hours.

And.

And.

And then another humorous thing.

My client turns to me.

He's like.

I don't know.

Maybe he did.

I don't know.

Was he not impressed?

And so.

And so.

I argue the case.

And so.

Well.

Back up.

In his argument.

He.

The prosecution.

I forgot.

What he called.

He.

I don't remember the name.

Of it is.

But it was a phrase.

That he had.

That he says.

This is like.

The finishing touch.

In a.

In a like.

In a killing.

In a killing.

And that.

He.

He believed.

That the defendant.

Had.

Killed.

The decedent.

And stood over him.

And is in.

In this finishing touch.

Had stabbed him.

In the.

In the head.

And that's where the stab.

In the head came from.

And then that was like.

His like.

Final like.

Finishing.

Move.

This person.

Who was laying.

Flat on the.

On the ground.

And um.

It's like mortal combat.

That was his like.

I think.

Yeah.

Finish him.

Right.

And uh.

And I remember already like.

Where'd he get that from?

He just made that up.

He just.

He just came in here.

And.

Like no one said that.

No one.

You know.

Scientific that proves that.

It's just.

You know.

It's just kinda.

You know.

What he thinks.

And.

As opposed to.

You know.

Evidence.

He has to prove it.

So yeah.

That's uh.

Um.

We argue the case.

The jury goes out.

For.

Three days.

Came back.

Uh.

And they acquitted him of everything.

So I.

Very rarely.

Talk to jurors.

Very rarely.

Uh.

A jury almost has to go out of his way.

To talk to me.

In order for me to talk to.

I've.

In my career.

I've.

I have.

Uh.

Heard.

Everything.

From a juror.

That I'm not really interested in hearing.

Stuff anymore.

It.

It just infuriates me.

Yeah.

And so I don't.

I don't do it.

Regardless of the outcome.

Right.

Regardless of the outcome.

The only time that I will try.

That I guess.

I will.

Try to stay around.

As if it's a hunt.

A hung jury.

Right.

I got to try it again.

I might.

I guess.

I might gain something out of what they're saying.

Uh.

And so.

This judge.

Put the jurors in the jury room.

Like.

Didn't let them leave.

And said.

I'm going to send the lawyers in there to talk to you guys.

After the verdict.

After the verdict.

Wow.

Has that ever happened to you in your career?

The judge ordered you to go talk to the jurors.

He didn't necessarily order to talk to them.

Yeah.

But he made them stay around.

Well that's very odd.

So.

So normally the judge will say.

All right.

You guys can go.

If you want to stay around.

You can.

But you can go.

Right.

But he said no no.

And he puts them in there.

And the DA who tried the case wasn't there.

He didn't take the verdict.

So his supervisor was there who took the verdict.

And so the supervisor goes in there to talk to the jurors.

And I don't initially go.

And I was like.

Yeah.

I wonder what he's telling them.

Like.

Like.

He has a captive audience.

Like they can't leave.

And he's.

And they're telling them stuff.

And so I go in there.

And.

I don't know.

I don't really talk much to them.

I just kind of listen to what they're saying.

Oh.

And.

They.

They had one of the craziest things I ever heard.

They.

They said that every day.

Multiple times a day.

As a group.

They prayed about what to do.

Nice.

As a group.

I don't know if that.

Right.

That hugs the line of infuriating.

And then you're like.

You're like.

I may argue this case.

The law was given to you.

But you were praying about what to do.

Right.

Right.

So.

That's one reason I don't go in there.

Yeah.

Yeah.

Right.

And so.

I'm like.

You did what?

Like who.

Who'd you pray to?

Who was it?

Yeah.

You all have the same religion.

Right.

Yeah.

They were put in this situation where somebody killed somebody.

Right.

And they have to decide if it was okay that he killed them.

And they said that they.

In their opinion.

The.

They found the client to be the most credible witness in the entire trial.

Wow.

Uh.

And.

They believe them.

They believe the story.

So then.

Is there anything.

About this case.

Or.

That highlights.

Issues.

In the criminal justice system.

That you found.

Typical.

Or not typical.

Or.

So there are certain things.

Uh.

Uh.

I've tried several homicides.

Um.

And I've tried several homicides on claims of self defense.

And I've won several homicides on claims of self defense.

And.

Uh.

I did a panel once with some district attorneys.

And one of the DA said something to me that.

Um.

That.

If it's true.

Then.

It's a problem.

Uh.

He said in all his career.

And he had been a DA.

He's a very.

High ranking.

DA.

He's been a DA for.

Many many years.

So.

You know.

20 something years.

And he says that in his.

In career.

He's never had a case.

He's never.

Had one.

Or even heard of a case.

Uh.

A homicide case.

When the defendant.

Prevailed on the claim of self defense.

Where the.

Victim was white.

The decedent was white.

Um.

Uh.

And in my case.

The decedent wasn't white.

He was.

He was Latino.

They're both a Latino.

And.

Uh.

And.

When we had this panel discussion.

This was.

This was during.

This is.

This is when Trayvon Martin happened.

We had a.

Panel discussion about Trayvon Martin.

And.

Uh.

And so I've gone through all the cases that I ever had.

About self defense.

And the decedent wasn't white.

And so.

Uh.

You know.

If you're killing.

A minority.

Then maybe they'll hear you out.

Right.

As to why you.

What's your justification for doing it.

It's more dangerous somehow.

All right.

And.

Uh.

Yeah.

It's more likely they'll accept that you're afraid of them.

Uh.

More likely they'll accept that you're a use of force against them.

All right.

Uh.

Last but not least.

You were.

Being a defense attorney for.

Two thousand and four.

So.

Fourteen years.

Fourteen years.

And you started out in the public defender's office.

Right?

I did.

Um.

Why'd you want to be a public defender?

It was great.

It was great.

It is the pure practice of law.

It is the pure practice of criminal defense.

You don't have to worry about.

You know.

Business.

And getting clients.

And.

You don't have to.

Uh.

You know.

You show up.

You got.

Cases in your.

In your mailbox.

And you work those cases.

And then no one's.

Is.

No one's like.

Uh.

Second guessing you.

You are.

It's the pure practice of criminal defense.

And so it was great.

And I.

I enjoyed my time doing it.

And.

Uh.

You've been out.

On your own for a while.

Why'd you.

Leave the public defender's office?

So.

It's always been my goal.

To work for myself.

That was always.

That was always my ultimate goal.

And.

Uh.

And so.

Uh.

I had got to a stage.

Where I had.

Done everything.

Um.

Whatever case.

I had done.

Special circumstance.

Homicide.

Serial rapist.

Whatever.

Whatever thing.

Whatever charge.

You can think of.

I.

I had it.

In the public defender's office.

Is there anything in your.

Like.

Your background.

That made you.

Want to be a criminal defense attorney.

Growing up.

Or.

Anything like that.

Or.

Anything.

I grew up in.

Uh.

It is.

Today presently.

Like.

The definition of urban decay.

It is.

Uh.

Uh.

You know.

It is kind of like.

What Detroit is like.

Is.

Is.

Like.

Publicized as being.

Mm-hmm.

It's what.

What Gary's actually.

That's what Gary really is.

And.

Uh.

Uh.

And so it was.

You know.

Minority.

Poor.

Uh.

And.

I felt.

That the police.

Mistreated.

Me.

Personally.

Just to a lesser extent.

You know.

I.

I didn't get beat up.

Or shot.

By the police.

Like that.

But.

I've been harassed.

And I've.

Friends have been harassed.

And.

Uh.

I wanted to fight back.

And.

I thought.

That this was my way.

Of.

Policing the police.

I was gonna fight back.

And I was gonna.

You know.

Fight against these.

Corrupt police officers.

Was like.

Was my goal.

In becoming a criminal defense attorney.

And.

Um.

It's played out.

All right.

Well.

Well.

Thanks for being on the show.

Javon.

Yeah.

We hope to have you back.

Yeah.

Thanks for having me.

Yeah.

I had a few.

Thanks for tuning in.

To this week's episode.

Of another not guilty.

Shout out to Daniel Mark.

Creator of A&G's original theme music.

And.

Our audio engineer.

Chris Adams.

And guess what.

We have another not guilty story.

Next week.

Because we.

Public defenders.

Fight injustice.

Every single day.

In the American criminal system.