A Gentleman's Duel Lost In Translation - A fearless public defender battles mistranslations, mayhem, and justice on the line.

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

So he's like, what if I did go there, did have this BB gun, did point it at this person, but I wasn't trying to take the car. So I'm like, okay, well, there's something maybe to work with there.

This car drives past me and almost hits me. He could have killed my dog. And I'm like, wait, your dog wasn't with you. He's like, right, right. The dog wasn't with me. But if the dog was there, he could have killed the dog that would have been there.

And then the brother comes up to me and he's like, do you like porn? Never mind. Of course you like porn. Everyone likes porn. You win this case, I'm going to take care of you.

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

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

These stories are about the not guilty as public defenders get on a daily basis in an unjust criminal system with the deck stacked against us.

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

It's David today, solo. One of my awesome co-hosts, Michael, couldn't be here today co-hosting with us.

Unfortunately, he was the big winner in a trial recently, so he's here co-host as a guest.

Big Mike, what's up?

What's up?

Not much. Just taking a breather, a busy week at work right now, and just trying to rest on the laurels of my most recent victory.

Most recent. Well, just another Not Guilty, right?

Right.

So which one do you want to talk about today?

Actually, you've had a couple recently, right?

I'm on a bit of a winning streak right now.

Okay. He's hot.

I think, what, is it the carjacking we're going to talk about?

We're going to talk about the carjacking.

All right.

The attempted carjacking.

Attempted carjacking.

The attempted lifejacking by the prosecution.

Exactly.

All right.

Tell us about the case then. What happened?

All right.

So basic fact pattern as written in the police report.

So there's a guy, late 20s, early 30s.

Him and his uncle are coming back from church, as most victims tend to do.

And so he's coming back from church, and he's looking for a parking spot.

They live in an area with a lot of apartments, and so they're looking for a spot to park.

And they have separate cars.

So the nephew, the victim in the case, he finds a spot.

He's parked, and he sees in front of him there's an empty spot.

So he calls his uncle.

He says, hey, uncle, there's a spot right in front of me.

You know, you can park here.

It's right by their apartment that they share.

So he's waiting for the uncle.

He's just like standing in the street?

He's in the car.

He's in his own car.

He's in his own car.

He's in his own car.

Saving a spot though.

Right.

Okay.

Well, yeah.

So apparently his car takes up some of that spot.

And so he's trying to, he's going to move his car to make enough space for his uncle.

Okay.

He's in a small sedan.

His uncle's in a minivan.

And so he's actually trying to start the car.

He's saying he's turning the ignition and just making the sound.

Car's not starting.

This happens all the time with his car.

And he spends a good couple minutes just trying to start the car.

The uncle gets there.

Okay.

Uncle's backing in right as the car starts.

When the car starts, the victim says that my client immediately comes from across the street.

He's been standing there the whole time.

And the moment the car starts, client comes over and comes to him.

He says to him, he kind of motions for him with his hands, motions him to get out of the car.

And he says, get out of the car.

He also around that time pulls out what looks like a gun.

He, he takes out this gun.

He taps it on the window.

But it's the middle of the day, right?

No, no, no.

This is, this is nighttime.

This is a late.

This is a late church.

This is like a Friday night.

Oh, okay.

Church outing.

This is 11:50, 11:30 at night.

This is like after one of those wild nights at church.

Right.

The guitars are playing.

Yes.

So, client taps on the car, motions for him to get out.

Victim's not really saying anything.

He, he's, he's pointing in front of him to say that his uncle's just right there, right in front of him.

And so, client just, just says it a couple times, get out of the car.

And then he walks over to the uncle.

And he points that, that gun at the uncle.

And then luckily for them.

Right.

A car drives by that scares him off.

And so now he starts to walk in the opposite direction.

Uh, and so he's walking away.

They, they end up calling the police.

Police find the person who matches the description.

And it was a pretty good description.

They had the, the color of the, the shirt generally, right?

Right.

And, uh, he had two bags with him, a backpack and a round circular bag that's used typically to carry a dog, a small dog.

Oh.

And so.

Right, right.

Okay.

Those little, uh, what?

Like duffel bags, but has like breathing spaces.

Right.

Like little ventilation spots.

And, and, and I think my client called it a sleeper pod.

Yeah.

So that's the identification that they say that this person has one of these.

They find someone with one of these, they look inside it and they find what looks like a gun.

Oh, so the police find what looks like a gun.

Are we still using the, what looks, what looks like a gun language?

Well, here's the, here's why.

Okay.

Okay.

When the police see this, they're freaked out.

They see this gun.

They, they, they, they.

What looks like a gun.

What looks like a gun.

Yeah.

Uh, they don't know.

It's, it's, it looks pretty real.

Um, and upon further inspection, we learned that this is not an actual gun.

It's, it's like a airsoft or BB gun.

Never.

They were never able to describe exactly what it was.

Okay.

I mean, that's still though illegal to do, to use that in the commission of a crime.

Right.

If you're using it for fear, uh, then, then if someone might think it's a real gun, then,

then yeah, it's just as good as the gun.

As far as the carjacking is concerned.

And that's the case.

That's, that's the case.

Cause I feel like, I mean, as a defense attorney, I'm already like, hmm, wait.

So he first initially walks over to the guy and says, get out of the car with the gun.

The guy, we don't know what he did, but then he just stops and walks over to the grant or

the uncle does the same thing and then walks away.

Right.

He's very, he's not very good at what he's trying to do.

Right.

He's not a good carjacker.

Not a good carjacker at all.

That's actually, that was part of my defense in a way.

It's like, Hey, get out of the car.

No.

Okay.

Let me move on to someone else now.

Oh, okay.

Well, I tried, you know.

Right.

Just a good faith effort.

You know, that's.

I gave it a shot.

Yeah.

Gave it a shot.

Didn't work.

Let's move on.

Hey, what?

You don't.

Hey, is this thing on?

Is this gun on?

What's going on here?

So, so yeah, that's basically just, that's what the case is.

And what's the, what's your client looking at?

What's his exposure now?

Uh, his, his, he doesn't really have prior record really.

Um, you know, misdemeanors.

So he's, he's just looking at nine.

So he doesn't trust me initially.

Okay.

Uh, initially, you know, I, I go to visit him in jail.

Uh, I think right after that first appearance, just so we can have a more one on one time.

And he, you can tell he doesn't trust me the way, you know, he's, he's kind of sizing me up to see if I'm actually someone who's going to fight for him.

So, you know, he's asking questions.

He's kind of trying to see what my strategy is.

He's adamant that he's not guilty and that, you know, this case is going to go to trial.

And this case is going to go to trial within the statutory period of 60 days from the arraignment.

The sixth amendment to United States constitution guarantees a right to a speedy trial, which in California is 60 days from the date of the arraignment.

Fair enough.

So, so I knew very early on that the clock was ticking that I am going to have to be ready for trial immediately.

So then what's the next step in the defense preparation?

So again, at this time, my client, you know, he's warming up to me, but he still has some trust issues.

You know, so we, we have more conversations, you know, explain that eyewitness is not really the best way to go.

And he, he, he, he springs something up on me, which is what if I did go there, did have this BB gun, did point it at this person, but I wasn't trying to take the car.

Oh, and so I'm like, yeah, tell me more.

What do you mean?

And by the way, you've spoken to your client.

He's cool with you telling the story, right?

I have spoken to my client.

He is cool with me telling his story.

Um, not only that, but he, he testified to all of this afterwards.

So it's public record.

It is public record.

Okay.

Cause not, now that you've told me that I do feel a little better about these questions.

Okay.

So your client's like, well, what if I really did do it?

I just didn't try to take the car.

Right.

Right.

Which would make sense as to what my earlier comments were.

Right.

Exactly.

So, you know, I'm, I'm trying to go into it.

What do you mean?

So he's like, I'm, I'm walking down the street.

This car drives past me and almost hits me, but not just that.

He, he, he actually focuses more on, he almost, he could have killed my dog.

Yeah.

And I'm like, wait, your dog wasn't with you.

Right.

I don't see anything about a dog.

He's like, right, right.

The dog wasn't with me, but if the dog was there and the dog was in that bag and he got

dangerously close to that bag, he could have killed the dog that would have been there in

that situation.

So I'm like, okay, well there's something maybe to work with there.

Right.

But you know, and so he, he says after that, he's, he's really upset.

He sees the car park and he approaches the car.

He says he wants to challenge him to a fight.

That he's seen a movie somewhere where someone got out a gun or a fake gun or, and challenged

someone to a fight.

And at this moment, you're thinking like, man, I totally get you now.

You sound totally credible and totally sane.

I mean, essentially I'm, I'm, you know, this doesn't sound good, but technically this is a defense I can run with.

I can make this argument with a straight face and, and technically speaking, that would be a complete defense to the crime.

And so later on in the process, again, I probably the next time I speak to him, you know, and again, there's some trust issues initially.

And so a lot of the times I speak to him, a new nugget kind of comes out.

And the next time he mentions that he, you know, I'm trying to establish a timeline of, of what happened earlier in the day, what got us to that point.

And he, he says that he was using crystal meth, uh, in the park that day, that day, a couple hours before.

And so I'm like, all right, well, this starts to make a little bit more sense because now if I just come up as this angry man, who's just trying to, to attack this person for almost running him over.

A jury might say, yeah, I don't like this guy. He comes off like a complete jerk.

But if I say, yeah, the reason he might not be acting the most rationally is because he's under the influence.

Well, now I might have a little bit more traction.

So, so yeah, it was never really an easy relationship, but it was, it was actually one.

What is he guilty of then? What's he guilty?

That's, that's the thing is.

Is there an assault in there somehow or a.

I mean, arguably there's an assault.

Isn't there like a special code section for assault with a fake gun or a BB gun or something like that?

Or is there something?

I don't know, but if there is, it would, I believe just be a misdemeanor.

It's not a felony.

Right. It's only a misdemeanor.

Right. And, and the, the DAs are, they're asking for prison time.

They're not willing to give a misdemeanor.

Right.

Uh, and so.

Uh, anything else with pre-trial stuff or negotiations?

No, that's pretty much it.

Um, it happened very quickly.

So you get, you get sent off for trial, right?

We get sent off.

Uh, there's a, a DA who's a sign of the case.

She's, um, I'd never really worked with her, but had a great reputation.

Uh, it's very nice, easy going, easy to work with.

And luckily I also get sent to a court where I was very familiar with the courtroom.

Um, he was my prelim judge before.

So I knew how he worked.

So I knew how he worked.

I had, uh, established a good rapport.

So I had credibility in there.

Uh, the court staff, you know, I was very close to at the time, you know, at one time.

So it was kind of like a reunion of sorts for me.

So I felt like I was on, on home turf.

Right.

Oh, that's good.

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.

So we go through opening statement and I'm very clear that I want, I do not want to tell the DA or the jury where I'm going.

Of course.

Um, I, or the jury.

Right.

All right.

I don't want, I, I give a very generic general opening statement.

My position was to be as vague as possible.

My theme is what matters here is not what was going on inside the car, but what was going on outside.

Ah, you know, cause I, I start out talking about how that's your thing, man.

Right.

In fact, if, uh, for our listeners, you know, if you listen to episode seven of our podcast, never underestimate the value of a good public defender.

That was your theme in that case.

Exactly.

And that's, and it worked and it worked and it was the same exact.

Right.

Kind of position.

So I'm like, let me recycle this one.

And your client had a drug problem in that case too.

He did.

You're always saving these guys.

I should have come up with a different one.

I didn't even think at the time that I'd be, I'd be on the show again.

That's okay.

So that's cool though.

Um, yeah.

So, so again, it's the same kind of reasoning is.

Right.

I'm in no way claiming that, that these victims were, they felt victimized.

Right.

There's, there's no doubt.

Someone comes up, it looks like a real gun.

It's late at night.

They say, get out of the car.

Of course they think.

Right.

They're being carjacked.

And, and so what I wanted to do is kind of take away that focus, not on the emotion of how

they felt, but more of the logic, the reasoning of what was going on with the person outside.

Right.

Right.

Very nice.

Yeah.

So that was that theme.

Did you start that theme in, on your voir dire or on your opening statement?

Opening statement.

Okay.

Something else interesting happened during opening.

What's that?

So all along I've been under the impression that the victim drove by, almost hit my client.

And that's the reason why we were here.

Client had this, this.

And so during opening statements, the prosecutor is talking about telling a story about what happened.

And she said, yeah, the victim is coming back from church and is being dropped off by a friend.

And I'm like, wait a minute.

I'm like, I've, I've read the police reports, believe it or not.

I've read the transcripts of that preliminary hearing.

I've watched the body videos.

Not once have I ever seen that.

And I, and there were parts in a 911 call parts of that body camera that actually suggested the opposite.

And so I'm, I'm confused.

I'm, I'm wondering what's going on here after both of us open.

Cause they're right back to back.

We, we go to lunch.

And so I asked the DA, I'm like, um, where'd you get that information from?

I've, I've never heard anything about that.

Okay.

And so she says, this is now a Monday.

She's saying Thursday when we first started jury selection, she had her witnesses there and they talked and he kind of gave a more expanded story of what happened that day.

And she didn't think that it was anything different, different.

It seemed okay.

It didn't really, it didn't seem important.

And so she didn't give me a report on it.

So the police report, it says the victim's in a car by himself.

Both the police report and the preliminary hearing start with him in the car.

They don't say how he got to that parking spot.

Right.

So he's already parked under both.

So he, none of them explain how he got to that spot.

And then now he's getting dropped off.

Now he's getting dropped off on a different street.

Oh, he's getting dropped off and decides that he sees a spot for his, his uncle and is worried about his uncle finding a spot.

So it's kind of changed a little bit.

And so, you know, during lunch, it just, it keeps bothering me.

I'm like, why, why is he saying that he wasn't driving?

When everything I've looked at, everything I've reviewed, I came away with the opposite.

That I thought it was very clear he was driving.

Is it that I just want to believe my client?

Is it, you know, what is it?

And so I'm thinking, I'm like, oh, it makes sense.

This guy doesn't, this guy may not have a driver's license.

He important, I guess, important fact.

He's a Kiche speaker.

Kiche is a dialect in, you know, Southern Mexico, Guatemala area, where it's, it's a dialect of Spanish or it's, it's an indigenous language.

Right.

Uh, and so during the testimony of, and this was at the preliminary hearing as well as the trial, we have relay interpreters.

We have.

Oh, you left that out.

Yeah.

Well, we haven't really gotten to that testimony yet, but we have, because there are only two Kiche interpreters in this area, um, in, in, in a large county.

Right.

In this county.

Right.

Neither of them are qualified or certified to interpret from Kiche to English because they don't have the mastery of English.

They have to interpret from Kiche to Spanish.

And then we need a Spanish interpreter to translate from Spanish to English.

So we have two interpreters during most of that testimony.

And it just takes forever.

Right.

It's a relay.

Right.

It's like a comedy show or scare sketch comedy.

Right.

And I understand Spanish.

And so I always, because it takes so long, I hear the answers in Spanish before they're translated into English.

And I start asking my question because I already think in my mind, we already got the answer.

And the court reporter hated me, um, even though it was my home court.

So then how is this relevant to the, why is he lying then?

Well, so obviously if someone speaks Kiche and does not speak English, you start to think, well, there might be, you know, it might, they might be a more recent immigrant.

Okay.

And so I started to think, you know what, maybe he is making this up, this being dropped off by someone to avoid having to say that he was driving his vehicle without a license.

And I remember during watching the body camera video footage that him and his uncle started acting a little strange when they were asked for identification and they said they didn't have it.

And so I'm like, that, that has to be it.

I mean, it, this goes against everything I thought this case was about.

It would kill, it would hurt.

It wouldn't kill, but it would hurt my defense that my clients angry at this guy for running him over if he, this guy wasn't even driving.

Yeah.

And so because I now believe that he is lying about this, when I cross examine him, I kind of, I, I go into the minutia of how he got there and all that goes with it.

All the details.

At this point, I keep it under, you know, in my sleeve, this whole issue of, does he have a license or not?

I'm thinking I might ask it.

I might not ask it.

I don't know.

I'm going to wait and see.

He testifies on direct exactly how I expected him with the additional caveat that now he's mentioning he was dropped off.

And so I asked him some questions.

I'm like, okay, well, you know, I'm like, if he, is he really afraid to say he drove?

I'm like, oh, well, when did, did you park the car at that spot where it was?

And he said, no, I didn't.

Oh, let me back up.

Okay.

So what he testifies to.

Okay.

On direct.

On direct is he goes to church.

He's coming back from church.

His friend finds a spot on an adjacent street.

It's his roommate.

Not his uncle.

Not his uncle.

Okay.

Everything dropped off.

And so he, the, the roommate finds a spot.

And then the victim starts to think, well, my, my uncle needs a spot.

So let me see if I can help him find a spot.

And somewhere down the line, he, he calls his uncle and says there, there might be a spot in front of his car.

And so he goes over there.

He sees a spot.

He tries to move the car to make room for him.

That's why the car won't start.

That's when everything happened.

Okay.

And so I'm trying to poke holes in this whole story.

So I asked him initially, I'm like, well, when did you park your car in that spot?

You know, because I'm thinking he might say he didn't, he didn't park his car there.

And so he, he says that he's like, oh, actually I didn't park my car there.

My, my roommate parked my car.

My roommate needed to borrow my car.

And so I lent him the car and he parked in that spot.

I'm like, okay.

All right.

I'm like, who, who drove you back from church?

And he's like, it was my roommate.

I'm like, wait, your roommate that didn't have a car needed to borrow your car.

He now has a car a few hours later and is dropping you off.

I'm like, that doesn't make sense.

Yeah.

So that's one thing where I'm starting to think, all right, something's up.

Then I ask, all right, well, when did you call your uncle?

I'm like, it seems weird that you're, if you didn't park the car,

when did you call your uncle to let him know that there was a spot in front of the car?

And he's like, oh, I call my uncle right when my roommate drops me off.

I'm like, wait, but he drops you off on a different street.

So when you call your uncle, you know that there's a spot in front of you.

Right.

In front of your car.

In front of your car.

Right.

And then I'm like, and you weren't even the one that parked your car.

So you don't, you didn't know that there would be a spot in front of your car.

So I started asking some questions as to that, where it starts to make sense that, you know, the story for how he goes and how he gets to that spot doesn't quite add up.

Right.

Also, I knew going in at the preliminary hearing, the uncle testified that when the nephew calls him, he says, hey, uncle, there's a spot right in front of where I am right in front of me.

And so that's inconsistent with him calling his uncle on a different side street.

Right.

And so there's there's inconsistencies there.

Did you impeach him with that?

I brought it out through the uncle.

Oh, OK.

The uncle gives a very similar story, except for that discrepancy with when the call was made.

Gives a similar story to his own previous testimony or to that of the.

Both.

Of the victim.

Right.

They're very consistent with one another.

And so then their last witness is the officer who finds the gun or what looks like a gun.

And so he very short testimony.

He doesn't really know what it is.

So on cross, the only thing I really care about him is that, you know, he's going to say that the client was cooperative, that it wasn't a real gun.

But then there's one other thing that I found that was important.

At least I thought it was important.

When I was watching his body camera video, his partner asks him, hey, search him.

Does he have anything else on him?

And he says already did.

He only had a small pipe.

And so not that important.

But I'm like, well, if my whole argument is that he's under the influence, I want to have something to corroborate it.

So I'm not saying he's just making this up out of thin air to try to help his defense.

That is, is actually backed up by the by the facts.

And so I bring that out.

And with that, the prosecution rested their case in chief.

Okay.

Hey there, it's your buddy David from another not guilty.

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Thank you.

Anything else going on in the trial right now then or?

Um, not too much.

By this time, my so during the testimony, my clients, that family, that family friend, his friend, she's coming to court now during the trial, which is great to have family support.

And then my client's brother flies out from New York to come watch him at trial.

Oh, nice.

So nice.

Now, I'm worried about them because the last time they were in court, the brother made an appearance during one of the pretrial hearings.

Okay.

And, um, the victims were there and they complained to the bailiff saying, this guy is taking a picture of us.

They're very paranoid about this whole testifying and they think they might be killed or whatnot.

Okay.

Um, and so I'm kind of just worried about their appearance.

The, the female family friend, she's very kind of outspoken a little bit.

She, she has her, her support dog with her at all times.

Um, and so the, the bailiffs kind of doesn't really like them, but it's actually a funny story with the, who has the support dog?

Who has the support dog?

My client's family friend.

Okay.

Which apparently the jury loved.

They were petting that dog in and out of court.

I didn't know that at the time.

Something I might have to do from now on.

Uh, and so, but yeah, funny story with the brother actually.

Yeah.

Um, after, you know, during that cross examination of, of their witnesses.

Right.

Um, you know, we, we end the day.

Um, and you know, I go and after I talked to my client for the day, wrap up, I walk out of the courtroom and they're waiting for me.

You know, and they're talking, oh yeah, great job today.

And then the brother comes up to me and he's like, do you like porn?

And of course I'm taken aback.

You know, I'm like, now's not the right time to say, you know, I really need more of an emotional attachment.

Right.

You know, don't, don't go too much into the nitty gritty.

And so I'm, I'm hesitating.

I'm kind of a little surprised by the question.

Don't know how to respond.

And then.

Because what can he offer you?

I mean, porn's free on the internet.

Right.

So what he says is, nevermind.

Of course you like porn.

Everyone likes porn.

And I'm like, okay, sure.

We start laughing.

He's like, if you win this case, I'm going to take care of you.

Ugh.

So at this point I have, I have no idea what this is.

It's the first time you didn't want to win the case.

You've been fired for your client up until then.

Right.

I don't know if he's going to give me passwords to websites or, or a stash of his old Playboy magazines.

I have no idea what he's, what he's going to give me.

So I just, I play cool.

Right.

We kind of, kind of laugh it off and we come back the next day.

You didn't shake his hand.

And then the next day, actually, after the trial, the next day, I tell him, he's like, Mr. Kelly, I'm going to, you know, you're going to have to come out with me.

I'm like, I'm like, I actually told my girlfriend about what we talked about yesterday and she, she doesn't want me to hang out with you.

You had to drop the girlfriend line with him.

And then he's like, Oh man, why'd you, why'd you tell your girlfriend?

That's the first mistake.

And then the family friend informs me that he has dated a porn star.

I believe they're expecting a child and that she has many friends in the area that he would like to, you know, help introduce me if I am able to get his brother off in a different way.

I mean, we don't need to do any play on words right there.

Um, that's, that's a very generous offer.

Very, very generous.

You know?

And I told him I'm, I'm respectfully declining, but I will get back to you at a later time.

Or apparently it's an open invitation.

So, so yeah, so that was the end of their case.

And now, um, now it's time to, but let me ask you this.

Do you tell your client that the, about the offer that his brother made?

He did not.

Did it?

Oh.

I feel like I would have told him like, Hey, you know, your brother out there is out there.

He has a big, some, you know, something waiting for you when you get out.

I'm strictly, I'm strictly professional.

Always.

I don't mix business with pleasure.

All right.

So at this point, um, I'm planning on calling two witnesses.

Okay.

Uh, I'm planning on calling my client and I'm also calling the officer

the officer with the body camera, the one that was the long body camera I reviewed.

And the reason why is he said in the body camera, the, the victim did.

He said, I was parking in my car when I saw him.

And so I'm like, Oh, this is, this is an important, this is like a key contradiction of his story straight out of the horse's mouth.

And so I subpoena the officer.

He's, he's come, he's a sergeant.

He's actually the supervising officer.

And, uh, I'm in watching the video when he, when, when the victim says I was parking my car, the officer, the sergeant's like, okay, I see your car was parked and blah, blah, blah, blah.

So I think he may have missed it.

I don't think it was an important fact for him.

Right.

So when it's time for me to call a witness, I haven't had a chance to speak to him yet.

So I actually call my client first.

I would normally save my client for last, but I call my client first.

And, and my client, I, we, we had prepped.

He has a tendency to say too much.

And so I'm like, I'm told him very clear, listen to the question, only listen, only answer in response directly to the question.

Okay.

Sound legal advice.

Right.

And then I'm also.

Advice you give to someone who's even innocent.

Right.

Everyone gets that advice.

Well, my client was.

That's what I'm saying.

You know, like, it's not just, you don't just give that advice to people who are guilty.

No, no, no.

Everyone.

That's just the advice you give to any witness.

Doesn't matter if they're the defendant or the victim.

It's everybody.

Right.

Um, and, and when we, you kind of ran through things, he also has a tendency to, to make

little jokes here and there.

And I'm like, when you testify, not, not the time to tell jokes.

So we go up on direct and direct is pretty, pretty fast.

Sound legal advice, by the way.

Uh, advice you'd give any, anybody, witness, victim, defendant.

Now's not the time to tell jokes.

So, yeah, not at all.

So we, we go through the day.

Um, I want to go a little bit more into his backstory.

Um, you know, I go into what kind of career he, he has, how he's, he is a producer, um,

of music videos.

I was going to say porn for a second.

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

No.

He's, he's in the straight and narrow.

Okay.

Uh, he does music videos.

Maybe they are porn.

I don't know.

Uh, and so I, I start, you know, how he, lately his career is not as, you know, it's

kind of fallen.

I was going to try to relay that to the, to the drugs, how he used to have a condo, but

he lost his condo, you know, so I'm trying to build up kind of the sob story.

Right.

His drug use and kind of add a little bit more, um, emotion behind it.

Um, more of a well-rounded person, I guess.

Are you talking about the, this is what he's testifying to right now?

Right.

And are you able to get into all this, his, this backstory?

Not at all.

Oh, this is what you're trying to do.

This is what I'm trying to do.

This is what we've prepped for.

We've talked about, Hey, I want, I kind of want to go into these things.

Then the DA is objecting, right?

The DA is objecting.

The judge is sustaining.

And you're trying to get the truth out there about your client and the court

and the DA are saying, we don't give a fuck.

Right.

Nobody gives a fuck.

Why do you have a drug problem?

Right.

Except for you.

Except for Michael, you know, the public defender.

So, you know, I, I don't go into kind of how long he's been using drugs or what,

you know?

So, but by now the jury knows based on the voir dire, they know drugs is an issue.

Right.

He heard about the pipe from the other officer.

So, so they know.

And so we go into the, the, the events of that day, how he was with his girlfriend.

Uh, they went and they had brunch.

Then she had to work at target.

And so he went to do kind of his own work.

So he went to the kind of the central part, downtown area.

Um, and there's a nice park there to kind of take stock footage for his videos, footage

of the city to kind of mix into the, the music video.

Uh, and then he starts editing some of the, the pictures are going through them.

He's working at a Starbucks.

He says, Starbucks is basically like his office.

Yeah.

Um, and so then I asked, did you use any drugs there?

He's like, yeah.

So he's, he's, he's direct is going great.

He was talking about the drugs, how he was using.

Um, and then we go into the story, how he's walking the guys speeding.

He says, and almost hits them kind of adding the, the speeding.

I hadn't really heard just kind of adding a little bit more detail to it.

Um, and so, yeah, he's saying, you know, she was getting off of work at 11, 1130 or so.

So he was walking back to her place and that's when the guy almost hit some, how he gets mad

because the dog could have been killed.

The dog that wasn't there.

He goes over to the guy and he's just trying to take his car.

I mean, not trying to slip there.

I mean, let's rewind.

Let's, let's, let's, let's edit that out.

Only answer the questions asked.

He goes there and he's, he's just trying to get the guy out of the car.

Right.

To, to challenge him, to fight him.

I was encouraging confronting him rather than fighting him.

Right.

But he just, he was, he stuck with his, his gut, which was, I wanted to fight him.

Yeah.

I'm like, Oh great.

It doesn't look good, but.

So what, how did she attack on cross then?

Um, she's, she's just trying to go kind of what we do, go into details.

Uh, she, nothing specific, but she's just kind of letting clients shoot himself in the foot.

Okay.

Um, you know, he says, he, he tells a joke.

He, he says, did you object objection?

Your honor.

We clearly, we went over this that he was not to tell a joke.

She, she asked him about what he said.

And he's like, he's like, I didn't know at the time that I needed two interpreters to

talk to him, you know, and he just, he comes off a little bit.

Right.

A little smug.

Right.

Again, my goal too, when they're crossing is to look like nothing hurts.

So I'm, I'm up there heads up high.

I'm, I'm just, I look as confident as I can.

Yeah.

Um, a couple other tidbits is he, he talks about the reason he left the whole reason he

ended up walking away is he's like, you know, I see this guy and then, and then this, his,

I see this other guy.

I think his homies over here and I don't want to get jumped by my client, by this guy,

by the victim and his homie.

Right.

And I'm like, dude, they're, first of all, they're like five feet, two inches.

Right.

Clients like six feet tall.

They, they can have weapons.

They can have weapons, but they, it's a man and his uncle.

They, they are coming back from church and they look like they would be coming back from

church.

So I'm like, this is not the approach to, to, to, this is what he's saying on cross.

This is what he's saying on cross.

Okay.

And you didn't, you didn't really address that in your direct, right?

No, not at all.

You did a less is more.

Right.

Right.

And so I'm, I'm kind of worried about that.

Um, and then at one point he's going over the story again on, on, on, on.

And by the way, that homie response was not a direct response to, to a question.

He broke the other rule, which was just answer the, the fricking question.

Right.

He answered the question and then talked about the homies.

And so, yeah.

So then the next thing he, that really worried me is he's testifying.

He's saying, yeah, I was just walking and, and, um, and they hit me, you know, and then

he hit me.

And so I went up to him and she's like, wait, are you saying he hit you?

And then the client's response, he gets angry.

He's like, no, I didn't say he hit me.

Uh, why would I say he hit me?

You know?

And so then the, the DA is like, your honor, can we have this last answer read back?

And of course he said, he hit me.

You say like physically hit or the car hit that the car hit him.

Oh, okay.

Okay.

Which again, it doesn't mean that much.

Obviously the car didn't hit him.

Obviously he's not lying about that.

It was a miss.

He just misspoke.

But his, his reaction to being called out was what made me concerned.

Not he lied about.

I wasn't concerned that they think he lied that he was actually hit.

I was worried that they would not like the way he responded to this, you know, nice DA

lady who's asking just a simple question and trying to, you know, and he's just yelling

at her saying, no, that's not what I said.

When in fact he did, um, clients lashing out at the, and, and acting kind of like a jerk on

cross.

It fits my theory of the case, which is this guy's, he's kind of a piece of work.

He's tough to, he's tough to get along with.

Right.

Um, so that's just who he is.

It doesn't mean he's a criminal.

Um, one thing to tie up, actually, this is, this is an important thing.

I mentioned earlier how I did, I thought he may not have a license.

Okay.

I didn't actually ask him that part of it.

I wrote it down to ask him and I skipped it over.

I was thinking about it and I'm like, you know what?

If I asked this guy, this victim who everyone can agree was victimized.

Hey, do you have a license that the jury might not like me for asking that?

That they might think I'm bullying him.

Right.

I'm being mean to him.

Um, and so when I address it with the court, I, I address it with the court off the record

or on the record outside the presence of the jury.

I tell the court, you know, I wanted to ask this question, but I didn't because I, I don't

know, you know, I want to, I wanted to address it with the court first.

Uh, I have a feeling he may not have a license that might be, you know, why the testimony is

different.

I don't go into why I, at that point this happened before my client testified.

Okay.

I can't tell them that the reason I don't want to tell anyone that the reason that this

is important to me is it suggests that my client is not lying when he says he was driving.

Right.

So the judge is like, I don't quite see why that's relevant, whether he had a license or

not.

So I'm like, I think it's going to be relevant later on when you hear all the testimony.

I'm like, maybe what we can do is we can have the DA maybe ask him, ask him off the record.

Right.

Um, and tell us, you know, whether he has a license or not.

So we table that issue.

Okay.

And after my client has testified, I readdress the issue.

I'm like, now your honor, now, now we can see why it's important, why he might be lying

about driving because it's part of our, you know, it's part of our defense that he was

driving.

Um, and so I want to go into it.

The DA, she's livid.

She's, she thinks I'm bullying him.

She thinks I'm trying to suggest to the jury that he's undocumented or he's, you know,

something.

And so she thinks that it's kind of, I'm, I'm playing dirty.

So wait, cause the victim testified that he was dropped off around the block.

Then he walks to his car and Nick, your client, cause your client's story, he has to be driving

for your client's story because he almost hits him and that's why he gets mad at him.

Right.

Right.

I mean, I could argue that he maybe got the wrong person, but it's not, it's not as strong

as to say, you know, this is the guy who almost hit him.

And you need that because if that fact's not there, then what's the other reason why he's

going up to him?

Right.

You need to track him.

Right.

Right.

That's, you need that.

It's important.

Yeah.

It's a big fact.

And so finally the judge says he, he orders the DA to run his DMV, um, to see if he's

licensed.

Yeah.

Um, he puts it under seal.

And after the testimony, he, he says, I'm going to unseal it.

And I'm like, I'm saying, you know what, your honor, we don't need that.

Well, I'm like, as long as the DA, cause he, we're about to call him back up.

Wait, what's, wait, what's sealed the prosecutor running his DMV.

Okay.

The results of that search are under seal.

Okay.

And given to the judge and given to the judge.

And when did you ask the prosecutor to run it?

Or the judge asked when I addressed the issue early on, which was right after he testified.

Right.

Uh, the judge says, we're going to put this off for later.

In the meanwhile, can you run his DMV?

We'll put it under seal.

Okay.

So after my client testified, the surprise envelope.

Right.

It's like the Maury Povich.

You are his right.

I know.

So yeah.

Yeah.

Woo.

Uh, and so I find out afterwards that he is not licensed.

Okay.

And rather than having him testify to that, cause the DA is like, the DA is fighting.

I'm like, well, we can just, you know, the, the, we can just bring in the records.

The court can take judicial notice.

And the DA is like, well, that's hearsay.

I'm like, well then let's bring him in.

I'm trying to not have him come back to testify.

Right.

Like you feel sorry for him.

Right.

And I'm not trying to make an issue of it.

I'm just trying to get the fact out.

So ultimately she agrees to stipulate.

And the, the stipulation is the victim, um, is not licensed to drive in this state.

Okay.

And she agrees.

We agree.

So I, I read that out there and then I close my case.

Before we go into closings, we're arguing jury instructions.

Okay.

Uh, the judge does not give the late jury instruction.

He thinks, you know what?

With the license issue, that was really the only thing you were going to get out of it is the

why, why you might be making this up.

We got the DMV stuff.

That's all you need.

He doesn't give it.

Because of your awesome lawyering, you weren't prejudiced by the late discovery.

He asks us if we are saving the DA again there, Michael.

So closing argument, um, is, you know, I, I laid it out.

I started off talking about what their, how their story doesn't make sense.

You know, again, I go back to my theme of it doesn't matter what's going on.

Right.

It's not so much what's going on inside.

It's what's going on outside.

Cause I wanted, cause I, I knew that he did something quote unquote wrong.

Right.

Just, is that a crime?

And I don't want them to conflate the two and say, well, he did something wrong and he's

charged with something.

So let's find him guilty.

He's not charged for being an asshole.

And I go into that.

I'm like, you're not here to decide if he's, you know, going to win the congeniality award,

whether you like him.

Look, I'm like, I don't like what he did.

I'm like, I know, I know I don't like what he did.

And I know what he said is what he did was stupid.

He testified to that.

And so I'm like, you're not here to decide that you're here to decide.

Did he commit, did he attempt to commit a carjack?

Then I go into some of the more specific things.

I'm like, wait a minute.

So they're trying to say that he wanted to carjack the victims.

The victim's car.

What do we know about the victim's car?

It took four.

It took like a minute or two to even start when he's trying to start it.

The uncle's car is right there working.

We're going in reverse.

Right.

He's driving.

I'm like, if he's going to take a car, he's going to take the uncle's car.

Why would he take the car that doesn't work?

I go into this other side.

I'm like, wait.

So if you believe their story is what scared my client off was some random car driving by.

Like that doesn't make sense either because why if he's scared off by a car just driving away.

And I got out that this car didn't slow down.

Didn't honk the horn.

Didn't say anything.

Right.

Like no, no big deal.

If he's so scared off by that car, he's going to be scared off by a car literally in front of him driving in reverse with the window down looking back like he would have been scared off by the uncle.

Right.

Like that's not that's not what we have here.

He wasn't scared off by that.

What we have here is he saw the uncle.

He was going at the victim because he wanted him.

Right.

To pay for what he did.

And then the big thing was, what do we expect a carjacker to do?

You know, kind of what you mentioned.

He's the worst carjacker in history.

Right.

If someone's going to carjack the car, at the very least, they're going to they're going to play with the handle of the car.

They're going to try and open the door.

There's been no testimony of that.

Just two times.

He said, get out of the car.

He's like the most polite.

Very, very polite.

You know, excuse me.

Can you run your window a little bit?

If it doesn't bother you, maybe can I go in there and take the car away from you, please?

I can drop you off somewhere.

If you want, you know, if you're trying to get somewhere.

I can probably get the car fixed, too.

I know a great mechanic.

You're an alternator there.

She's not turning over.

You know, we can.

So I'm like, yeah, he would have he would have banged on the window.

He would have he would have yelled.

He would have he would have hell.

He would have broken the window if you really wanted to get that car.

It wasn't about the car.

It was it was about the person.

He wanted to show him up.

So, yeah, that was it.

They it was a quick verdict, too, right?

Yes, they I told my client early on.

I'm like, look, if if it's if it's fast, I think it's good for us.

If it takes a while, you know, maybe it's not as good, which is usually the opposite.

So that means you felt good about your case.

I felt good about the case.

I felt like our case was pretty cut and dry and that they would have had to kind of go through more of a discussion as to what's reasonable, what's not.

And if it was quick, they probably were with me.

I was making really good eye contact with a couple of jurors during, you know, to the point of like, like straight up nodding through everything.

A lot of the points I was making.

Joe's just be straight up nodding, yo.

And so, yeah, so they came back.

I wanted to speak to them.

They all left as quickly as they could.

I think they beat.

They were trying to get out before the end of the day.

Right. Of course, for the traffic.

Right. Because they got the case around 2:30 and they came back at like 3:30.

Right. Makes sense.

Congratulations.

Thank you. How was your client then?

He he was very, very happy.

The brother, again, promised me.

He said, I have a date with the porn star whenever I want.

Right.

To have in my back pocket.

The friend with the dog was very appreciative.

I told them, hey, just remember, always talk good about your public defenders.

Right.

Because, you know, I want to I want us to dispel any bad reputation that we have is not right.

Not thorough.

And so I always tell them if they're happy with my services.

Hey, you know.

Right.

But no, it was a it was a good win.

All right.

Well, I know last time we got the reasons why you wanted to be a public defender already.

Anything else you want to talk about the job or how you feel this year or today?

Or no, I'm feeling good.

I'm I'm to this point.

I feel like I've won my last five trials that have gone to the verdict.

Mm hmm.

So I'm feeling pretty good lately.

I just I probably need to to get that loser in there to kind of remind me that, you know, the odds are against us a lot of the times and we have to work harder than they.

All right, great.

Well, let's keep the streak going and let's have you again on the show.

All right.

See you soon, buddy.

Thanks a lot.

Thanks, Michael.

Thanks for tuning in to this week's episode of another not guilty.

And guess what?

We have another not guilty story coming your way next week because we public defenders fight injustice every single day in the American criminal system.