Pornstacchio, "I've Got No Facts To Hold Him Down" – Two Trials, Two Not Guiltys

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He started off with basically, like, "You did not have your investigator take these photos." I started to say no because I was worried about the passage of time, and then he just started yelling at me and said, "I didn't ask you why! You answer my questions and nothing else!" Like, he started yelling at me. It was scary.

Did you see the avagers were reacting to that?

Well, no, because this is the next thing that happened is I kind of just looked down because I was so shocked. And he then starts yelling, "Judge!

Order her to stop rolling her eyes!" She's rolling her eyes, and she's smiling, and I was like, "I'm really uncomfortable right now."

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.

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

Another not guilty.

All right, everybody. Welcome back for season four of Another Not Guilty.

Just want to say it's your boy Dave here, and I'm super excited about this season.

Today's show is a little unique, because co-hosting with us for the first time is a public defender from San Francisco, Martina.

Martina, how are you doing up there?

Martina, how are you doing up there?

Hi! I'm doing great. So, super excited to be co-hosting today.

I've been a big fan and excited to talk about Alona's big case.

And today's guest is also a public defender in San Francisco. Her name is Alona. Alona, how are you today?

I'm doing great. I'm so excited. I've been listening to this podcast for a long time, and it's an honor to be on the show.

So, we got two San Francisco public defenders on the show today. I think, so you guys have been listening to, what, the first three seasons, and you're like, you know what, screw those guys down in L.A.

San Francisco got some game, too. Is that what's going on?

That's literally why I was like, we gotta get on the show.

That's right.

You guys need to hear about what we're doing up here.

Yeah.

We can rival some of your cases.

That's right. That's right, you know.

Okay, well, great. So, Alona, you are the guest for another Not Guilty today, and you have a recent Not Guilty you want to share with us, right?

Well, recent, if you ignore the year of pandemic, but yes, it was a pre-pandemic Not Guilty.

That's right.

And I'm super excited to share it.

That's right. And actually, this client got two Not Guilties in the year of 2019, one with Alona and one with Martina, and we'll be getting to Martina's in the next episode.

So, Alona, what kind of case do you want to share with the A&G listeners today?

Well, I call it a police brutality case, which basically means my client was charged with two counts of penal code section 69, which is threat on executive officer resisting with force or violence, and one count of misdemeanor 243 subdivision B battery on a police officer.

That's why I call it a police brutality case, because whenever officers wound our clients, as all public defenders know, they usually try to charge them with some version of resisting arrest.

Well, yeah, let's go ahead and get the police officer's version.

You know, let's hear how ballsy your client was, like when he was taking on these two cops.

What did the police allege he did?

So, the police, in this case, claimed that they were aware from their morning briefing that my client had a warrant for his arrest.

This warrant, just so you know, because this is an important fact, is not some super serious warrant.

It had been outstanding for five or six months, and it was based on missing a court appearance in a misdemeanor case six months earlier.

So, they knew he had this warrant, and they claimed that they see him standing on the street, and that they decide they're going to go arrest him.

So, they get out of their patrol car, and they approach him, and they, because they know what they did, the way, even the way the police report's written is they say they attempt to grab his hands.

They very much couch their language as, oh, you know, this guy was going to be violent.

So, the police just say they just approached their client and went for his hands right away?

Yeah, so, the officer says that he orders him to, well, I'm sorry, he don't go for his hands right away.

First, they claim that they order him to take his hands out of his pockets, and he responds, why?

They again order him to take his hands out of his pockets and tell him he's under arrest, and he again said, why?

And then slowly pulls his hands out of his pockets.

At that point, officer number one grabs his left hand, or tries to grab his left hand to control him, and the other officer tries to grab his right hand, and they say that he flailed his arms upwards to avoid them grabbing his hands.

Then they say that he took a step back, and they took a fighting stance, and that due to their fear, they had to punch him.

Oh, the fighting stance.

Always.

Always.

Always the fighting stance.

Does that mean, like, two fists are up?

You know, does he have, like, both?

What is a fighting stance?

Two fists are up, one foot in front of the other.

Come on, stick him up, stick him up.

Well, it's funny that you say that, because I actually took a clip from the, or, uh, what's it called?

I took a photo still from the body-worn camera during my closing argument to be like, that's your fighting stance, where he's standing with his hands kind of like, what did I do?

Perfectly visible, no weapon.

He's just standing there saying, like, what did I do?

Why?

Why are you arresting me?

So that's his fighting stance.

Your client takes a fighting stance, and what do the police alleged happen next?

Due to their fear for their safety, they punched him in the face, officer number one.

And, uh, so then, uh, they attempt to punch him a second time, but they miss, and it's because he's falling backwards.

He's flailing at that point, because he'd just been struck.

Um, they claim that next, he, uh, attempts to punch officer number two, and grazed officer number two, hence the, uh, 243B.

Um, and continued to sort of attempt to throw punches or flail his arms, uh, which resulted in knocking the body-worn camera off of officer number one, the one who, who did the punch.

Um, and then, um, and then they say he attempted to flee, he turns and tries to run away, and took about two to three steps before they, uh, essentially tackled him to the ground, and then attempt to grab, uh, his hands behind him to handcuff him.

Of course, they claim he continues to resist at that point, and, um, but they are able to get his hands in handcuffs.

So, how long are they saying that this whole thing takes?

Because that's probably, in reality, just a couple of seconds, right?

Yeah, I think the whole thing from when, uh, they first attempt to grab his left arm to when the handcuffs go on is definitely under a minute.

By, definitely under a minute.

Probably less than 30 seconds.

And that's the whole case right there, right?

It's the whole case.

So, um, when you read this type of police report, what, what do you think?

You know, because this is a fact pattern that we as public defenders hear a lot.

We, we, we read this a lot.

We, the fighting stance.

I mean, do they teach that all across America for cops to say that he takes a step back and takes a fighting stance?

Like, nobody, nobody does.

I don't, I don't know.

Nobody in their right mind would do something like that, I feel like.

So, but that's something that, that's language we always hear.

So, what do you think when you read this police report?

Uh, as soon as I read the police report, I, I knew this was a trial.

I was, I knew immediately that this is going to be a, an excessive and unnecessary use of force.

I know this fact pattern as a public defender.

We know this, um, as you said, it's true.

We all have seen these before.

Whenever, um, somebody is charged with any kind of offenses against the police and no other offenses, usually it's a sign that the police use excessive force and they're trying to CYA, cover their butts.

Right.

And your client was, was he on board with going to trial then that right away?

Right away.

He, he always said he would never plead to anything on this case.

This was never going to be a case that was going to get a plea bargain.

And, uh, so then how do you, how do you meet your client then?

Is he in custody?

So this case, yeah, he's in custody.

He comes out in custody.

And one of the really interesting parts of this trial and that happens at the beginning of the case is that, um, the incident happened right before Thanksgiving.

And so that means he spent a long time in custody before he was brought to arraignment because of the long weekend.

So by the time he shows up in court, he's got all these injuries that he's trying to show me, shows me that he's got extensive bruising to his shoulder area and his knee area.

And, um, um, the deputy who's in that courtroom, the bailiff, uh, I asked him if I could take some pictures of my cell phone of my client's injuries because I didn't want them to fade any further.

Having already potentially faded due to the long weekends, I didn't want to wait for an investigator to be available to get a camera and go into the jail and document the injuries.

So I took photos of the injuries right there in the courtroom.

And, um, he was, uh, he, I think he made bail is how he actually got out of custody.

He was able to, it was a low bail.

He was able to make it and he got out.

Well, Ilana, I think at this point, it's probably, um, helpful to get some background on this particular client.

Both his, maybe history with the office and maybe his history in the community.

So.

Yeah, that's a good idea.

So this particular gentleman was 48 years old at the time of his arrest.

And he is a born and raised, uh, local San Franciscan.

He is, um, half Latino and half native American.

And one of the great aspects of this case for me, actually at trial later was the t-shirt that he was wearing on the body worn camera on the day of his arrest.

He had a big picture of a native person.

I think it was sitting bull on the front.

And on the back was a list of every native American tribe in the United States or like registered tribe.

Oh my gosh.

So that was amazing.

Which really helped with, I'll talk about the optics a little bit when we get to that.

But, um, yeah.

So that's a little about him.

So I know you shared with us what the police is, the police version of the events then was, was the body worn video any different?

So, um, there, uh, there are two officers and initially I only received one of the body worn videos.

And I was told, and this is a huge part of the, of the trial that there was only one and that the other officers video did not record.

Um, so the first one was the, not the officer who punched my client.

It was the officer number two who gets out of the car kind of as officer number one is first talking to my client.

Officer number two is coming around the car and, uh, you, you can't see it quite as well, but he does.

It does show that, um, my client does take his hands out of his pockets when he's told to, and appears to be kind of confused saying, you know, what, what did I do?

Or why am I being arrested and not really understanding what's happening?

Uh, it also shows that he's wearing a pair of shorts and a t-shirt.

So nothing kind of baggy that he was, you know, a lot of times in these kinds of cases, police say, oh, I thought he might've had a weapon.

There was nothing indicating he might've had a weapon and he wasn't wearing lots of baggy clothes or a big heavy jacket or anything like that.

So I noticed all those things.

I also noticed that, uh, you can see immediately that he is punched before he has done anything whatsoever.

So immediately from watching the video, I thought this is completely unreasonable and excessive force.

Um, so literally you watched this video then, and it just shows the, the, the officers approaching your client aggressively, I would say.

And him pulling his hands up being like, well, what's up?

And then they just punch him.

Yep.

That's, that's basically what it shows.

Like, when did you get the body worn video?

The first one?

Uh, pretty quickly after arraignment, I'd say within a couple of weeks, a week or two.

And I wanted, I, I got an investigation.

What was that investigation?

So, um, there were two aspects of it.

Um, the first one that I didn't mention from the body worn camera is that you can see that

my client is talking to a woman.

There's a female that he's in the middle of a conversation with when the officers approach

him.

So I wanted my investigator to be able to interview her and hear what she had to say about what

happened.

Cause she saw the whole thing.

Were you able to interview the lady?

Yeah.

My investigator interviewed the lady and, um, I can't say it was super helpful or it was

helpful.

It was definitely helpful.

She, uh, clearly agreed that, you know, he, he wasn't resisting and didn't do anything

wrong.

She said that she was so shocked that she basically, you know, ran into the, into her apartment

because she couldn't believe that this was actually happening.

Um, it was so egregious.

So that was helpful.

Who was she to Carla, uh, to the client?

She was, uh, just a friend, someone he knew, not like.

A particularly close friend, just, you know, an acquaintance that he had run into on the

street that day as he was walking around.

And did, so did she pretty much just confirm that I'm talking to, uh, your client and all

of a sudden the cops just roll up and punch him in the face?

Like kind of, is that.

She said they walked up to the client and told him he was under arrest.

She says that they weren't like mean, but they had an attitude about them.

And she remembers that our client was asking why he was under arrest and that they wouldn't

tell him.

And then she, she describes it as kind of walking a little bit away from the police because

he's trying to understand why he's being arrested.

That's how she described it.

I just think it's funny.

Like, you know, just the, the cops, you know, like, you know, they just that extra level of

thought, like, don't ask why I'm telling you, you know, they, they, boom, you can't, you

can't just like say why, why?

Like the courtesy of why, you know, like it's just beneath them or something like that.

Sometimes I'm very glad you brought that up, David, because that was my theme in my, in

my trial.

All he wanted to know was why.

Why are we all here?

You know, why, why are the 12 people?

Why?

Yeah.

Um, she also said, uh, that he never physically resisted the police before, you know, walking

a couple steps away and that she was unsure whether they tried to grab him before he tried

to walk away.

But she did remember seeing them tackle him.

And then she walked inside because she was frightened because she had never seen officers

behave in such a way.

Okay.

And, uh, what kind of, uh, your exposure is your client looking at?

So yeah, PC 69 is a 16 to three.

So his, it would be the base term maximum would be three years plus an eight months, uh, one

third, the midterm for the, to consect.

So it would be, um, three years, eight months plus the misdemeanor, which hypothetically

could be added on, which is, uh, I think it's, I think it's 243B is a one year misdemeanor.

Hey, A&G fans.

Thanks for listening.

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And please leave a comment if you like this episode.

Um, okay, great.

Anything of significance with your client at this time?

Are you maintaining communications with him?

Yeah.

He was very involved from the get.

He was really upset about this case and he, you know, he wanted to sue the cops and, um,

and I, one of the things I didn't, Oh, another piece of investigation I forgot to mention.

This is really more, um, just records collection.

I knew that he had been treated at San Francisco general hospital after this incident for his

injuries.

So I, um, had him sign a HIPAA release and my paralegal got the records from San Francisco

general.

Oh, okay.

Okay.

And they showed that they dislocated his shoulder when they yanked his arm, either when they

tackled him or when they yanked his arms behind his back.

Oh, okay.

So he has a dislocated shoulder and you said he has significant, significant bruising on

his shoulder too, right?

Yep.

On his shoulder and on his knee.

So, uh, okay.

So then is there anything else significant happening before we get to trial then?

The only other thing that I, and this is probably a good time to introduce the prosecutor in the

case.

Okay.

Um, the prosecutor was handling this case, uh, is, um, how do I say this?

He's, uh, not the most defense friendly prosecutor, Martina can, um, Oh, that is putting it mildly.

Uh, he, uh, as a, I would say that I think he has some issues with women that I think are

well-documented.

Um, I also think that, so he, he refuses to speak to public defenders, not on the record.

I don't know exactly.

Was he doing that during your case though, or was it a result of your case?

Yeah, I think it was the result of my case.

He refuses to speak to public defenders, except on the record.

So another, I think it'd be helpful to paint a picture since it's a podcast, you can't see

people's faces, what they look like.

This prosecutor is about, I want to say he's six foot five.

He probably weighs somewhere between 250 to 300 pounds.

He has a mustache that is reminiscent of, if anyone watched, uh, Orange is the New Black,

the, you know, um, the inmate or whatever, not the inmate, the, uh, the guard, the guard,

they call it pornstache.

That's what his mustache looks like.

So he's a big, big white guy.

He looks like a cop, like in many ways.

I actually think he's taller than six, five.

I would have gone with like six, seven, six, eight.

He is a very tall, imposing figure.

Wow.

And he never smiles, right?

Martina, have you ever seen him look like without a sourpuss?

Oh, never.

Um, yeah.

So the, uh, I never asked for an offer.

We never had a pretrial conference or maybe they forced this to, I feel like maybe they

forced this to, but I didn't ask for an offer and he ends up emailing me the week before

the trial with the offer to settle the case.

Uh, do you want to, I assume you want to know what that was?

Yes.

Yeah.

What was the offer to sell the case?

16 months state prison times two for, uh, admit the prior strike.

So it'll be 32 months state prison on a PC 69 felony.

Oh, wow.

Yeah.

This is just like, he emailed it to you, but you weren't, you weren't even trying to negotiate

this case, right?

I was never trying to negotiate this case.

No, this case was not a case.

I knew from the get that I was never going to negotiate this case.

Oh, okay.

Okay.

Well, also the client, this is a client that has gone to trial before this, right?

Oh, that's true.

Yeah.

He is a client who has had, he has been to trial.

That's true.

I think it's several times.

And even one time, maybe with Adachi himself.

I think that's true.

I think he went to trial with Jeff Adachi.

Jeff Adachi, the former, the former, uh, public defender of San Francisco.

So, uh, rest in peace.

Yeah.

Right.

So one of the great things about this client is, you know, clarity of purpose, you know,

you meet him and he's like trial.

That's true.

You do not have to, you don't have to talk him out of a bad plea bargain.

He's an embodiment of the public defender spirit, right?

Totally.

I would definitely say that.

We're going to trial, right?

Well, and I think he's gotten just great representation, right?

Best defense money can't buy.

I don't think he'd ever lost a trial either.

That's true.

I don't think he has either.

He's done very well.

So, uh, all right.

So you get, you get an email offer of 32 months, um, from the, from porn stash.

So guys, that's what you guys are calling him, right?

Porn stash.

So I'll call him porn stash.

We can call him that.

We can call him.

Yeah.

Um, so that was obviously not going to go anywhere.

Okay.

Um, what happens next?

So when we get sent out to trial, we, we, we got a, we got very,

we got a really good judge, um, to hear this case, the judge, um, and I'm not saying that

this is a general rule at all.

In fact, I actually would say the opposite, but the judge is a former public defender, but

in general, that doesn't make for a good judge.

I should think we could all agree.

Right.

Right.

Um, but in this case, it ended up being, he was the right judge for the case.

He was really thoughtful and he really listened to the law.

So he gets sent out to trial and the judge, you know, takes a preliminary stab at, is there

any hope of settling this?

And it was very quickly like, no, absolutely not.

Um, so let's just do this.

And, uh, we had some really interesting in limine motion fights.

Yeah.

Let's hear, let's hear about these motions in limines then.

So one of the really big ones that we had a, um, a hearing on was, uh, oh yeah.

It was about experts.

The DA wanted to call an expert to testify about police use of force.

And I, uh, filed a whole brief against it and I actually won that in limine and they were

not permitted to call an expert to testify about the use of force.

And the expert testimony was for the, the expert who was probably former law enforcement

to say that the, the reason why the cops had to punch your client in the face, right.

Or approach them, how they approached them, how everything they did was lawful and according

to some sort of police procedure, right?

Yes, exactly.

Um, it was all about what are, how are police trained?

What is police training?

What is, what are the, um, levels of force to be used?

When do you use those levels?

And, uh, and exactly.

So to justify the use of force.

Cause, cause to the lay person, you know, it looks like the cops just walked up and punched

this guy in the face.

But let me tell you from my expertise, that's not the case here.

No, they didn't just walk up and punch him in the face.

No, no, no.

Let me tell you about police officer training.

And while everything they did make sense, if you think about it.

Exactly.

That's literally what it was.

It was, let me tell you about, uh, about this police officer training in Hawaii.

This is completely legitimate.

So then what was your motion then that you, it was a written motion.

It was a written and limine motion.

Um, I relied on, um, I relied on, there was a really good first district court of appeal

case, um, that had come out actually, uh, very recently.

I think it was a 2019 or 20, no, it would have been like a 2018 case or 2017.

It's people v.

Brown.

And they basically explained, uh, when it was an erroneous admission of expert testimony

on police use of force, uh, because it wasn't specialized knowledge, uh, in part because

officers only used fists and not weapons, uh, in that case also.

And since my case was also only fists and not weapons, um, there's no, you know, there

was no, uh, need for, to explain to the jury about when officers are allowed to use weapons

and what kind of weapons they're allowed to use.

The other really interesting and limine issue has to do with what we were talking about before

about the, um, attempt to use our client's past history to get in and be, and I wrote a

brief on this, um, the, uh, separate from my limine motions because the DA was trying to

get this information in and here's what he wanted to get in.

He wanted to get in that the cops had attended a briefing, uh, that morning in which they were

told a variety of things about my client.

Of course, none of this is recorded.

And they're trying to say, because of this briefing, these cops in these case approached

your client extra careful or something like that.

That's exactly right.

They knew about his quote history that they had to approach him a certain way.

And I think sometimes that sounds like it might not make a lot of sense because normally

we see these kinds of cases where, you know, the cops just kind of approach a client on

the street for some other reason.

They apparently have a lineup every day at the beginning of their shift.

That's how they explained it during the, the 402 hearing, the evidentiary hearing.

They do this lineup every day at the beginning of the shift where they're told, okay, well,

you know, there's been a spike in this kind of crime in this area and we want you to,

you know, patrol this area.

And here's some people who have outstanding warrants to keep an eye out for.

And that they were told about, you know, him having this outstanding warrant.

And so again, you know, I filed a whole brief on this and I won this motion and I kept everything

out.

How's Pornstache been during these 402s or these motions and limonies?

What's he saying to the judge?

What's his demeanor like?

Well, he's still his, I mean, he doesn't know how he only runs on one speed.

He has one demeanor.

He is just aggressive and angry and he never looks, he never smiles.

He never laughs.

He never jokes.

He's just very, very serious.

And he's arguing that he, he actually said, and this is the most, one of the more messed

up parts of the trial.

There were many of them that when the judge ruled against him on this particular motion,

that what the officers quote unquote knew that my client was irrelevant, uh, when that

was excluded, he said he had to take a break because he said, I, I don't think I can prove

this case without beyond a reasonable doubt without getting that in.

Oh, to the, he said that to the judge?

Yep.

And then he had to take a break to go talk to his supervisor because he was considering

taking a dispersed dismissal, uh, after that ruling was made before the jury came in.

Did he say, but your honor, I can't prove my case beyond a reasonable doubt now.

What are you doing excluding that evidence?

Exactly.

That's exactly right.

That's what he did.

Your honor.

Well, and that's going to become relevant later, right?

Did that end up becoming, um, an important, important piece that got put on the record?

Yeah, that did get also put on the record later.

So he leaves to go, is that where I, so he leaves to go, um, go talk to his supervisors

about dismissing the case?

Yeah.

And then he comes back and says to hell with it.

Basically, I'm not dismissing.

Let's go.

Let's do this.

Let's go.

Bring the jury in.

Pornstache is all in.

Pornstache is in.

Even though he's now conceded that he may not be able to prove his case beyond a reasonable

doubt.

Oh, man.

And that's crazy because prosecutors have an ethical duty not to go forward with a case

where they don't think that they can prove it beyond a reasonable doubt.

And he's put himself in a position now where he's saying, I can't, but I'm going to try

anyway.

Well, they always, they kind of, when they, when they get a case like this, they always

have this attitude, like, let's, we'll let the jury dismiss it.

I can't dismiss a case.

And I think a lot of people don't know that when you're talking about these kinds of police

cases where the district attorney feels like they're somehow letting the officers down

if they dismiss the case.

Like they feel like they can't because they're pressured by their, the law enforcement agencies.

Okay.

So what happens next in the trial?

He comes back.

He says, let's go.

So then what?

So then we brought the jury in and we started jury selection.

All right.

And so tell us about Wadir.

I, so my big concern, and I'm sure that most public defenders would, would feel this way

and know this, is that these kinds of cases, you're almost certain to have all of the good

jurors out themselves.

This is just one of those things, especially in the, and now even more so post George Floyd

and Black Lives Matter, people who have any kind of distrust of the police or think police

use excessive force.

So you bring up Ferguson, you bring up, you know, Michael Brown, any of these things like

police murders and, and people who are good jurors for us, you know, out themselves very

quickly.

Did that happen in this case?

Did they out themselves?

Yeah, some of them definitely did.

But I actually wanted to, I've done this before in a case and in a jury selection, I was afraid

that all the good jurors would out themselves in a, in a, in a magic mushrooms trial.

Actually, I was afraid that all the good jurors would say like, I don't think these things

should be illegal and get kicked off.

So I, during my introduction, when I got up to do my Wadir, I started by, by essentially

saying to the jury that, can we all agree that there, you know, we all agree that people

should be law abiding and not break the law.

We all agree that that should also apply to police officers and they should follow the

law and not use excessive force.

And I said, I'm sure that there are a lot of people here who have strong opinions about

politics or policy.

And there's all this stuff right now in the media going on about, you know, police use

of force.

But I feel the need to say none of that has anything to do with this particular trial.

And I'm not going to ask you to decide issues of policy or politics.

This isn't a civil case.

This isn't about, you know, whether, whether we should hold the cops liable for what they

did.

This is only about whether my client committed a crime and whether or not you think in the

abstract that police use too much force, that's not relevant.

And we need a fair cross section of the community who have different opinions.

And then you're like, isn't that right?

Juror number one.

Yeah.

So I tried to get in front of it that way.

Like, please don't, please don't say like, I think cops use too much force in general.

So yeah, I want off this jury.

Oh, okay.

So you kind of get out, you get out, you, you say the opinions you say, and you get everyone

to agree.

So that, that way you don't feel like a juror has to make those statements, right?

You want to say it for them.

So then the jurors that are in line with you don't feel the need to speak up so much.

Is that what you're saying?

Exactly.

That's what I'm saying.

I did get one.

Oh, so I also, I, I tend to do some juror research and, uh, when I can, and if people,

like, if it's easy enough.

And I remember I Googled, uh, some of the names of the jurors and I figured out that one

of my jurors was actually a legislative aid for someone on the board of supervisors.

So I quickly found out about that particular board of supervisor, local politician, and

you know, what her stance was.

And I thought to myself, this juror is going to be really, I think this is going to be a

pro defense juror.

So I kind of tried to ignore her.

Oh, right, right.

Cause I, I kind of knew that she was a really good juror.

So I didn't want to ask too many questions.

And I, and somehow she managed to slip onto the jury.

Um, but, um, the prosecutor porn stash ended up, uh, finding out soon after, I guess somebody

was Facebook friends with her in his office.

And she posted a photo of her juror badge, but covered the name, the number of the department.

And I was like, I can't believe you did that, but she didn't say anything.

But the very beginning, like right after she got sworn in as a juror.

And so he found out about it.

And I guess the person in his office showed her whole Facebook page, which included tons

of stuff about black lives matter and anti-police brutality and Ferguson.

And, uh, yeah.

So she got herself kicked off the jury the next morning before opening statement.

Wah, wah, wah.

Yeah.

I think she learned a valuable lesson about social media after that.

Did you fight to keep her on the jury?

I actually did.

I said, uh, I said she never, and it was true.

She didn't lie.

She never misstated anything.

She wasn't, she was asked certain questions by me and the DA.

She never misled anyone.

She just didn't pipe up with her strong opinions.

But when she was asked the question, she told the truth and I tried to keep her on.

And the judge was like, um, think about if the, she was on the other foot, how you would

feel if I kept someone like that on after they had those kinds of social media posts.

But that's kind of a questionable decision on the judge's part.

I mean, the thing that I thought sounded the worst was the posting of the jury badge, but

that's not technically talking about the case, right?

She's just telling me she's on the jury.

I'm on the jury.

I'm on the jury.

That's it.

Right.

It's not the specifics of the case.

Yeah.

And it's not the, and it's the prosecutor's fault for not, you know, um, for not discovering

anything about black lives.

You know, that's a question you asked.

Did any of your support black lives matter?

It's a very, I'm sure now it's a very standard question, but even back then it was a question

you would ask.

Yeah, absolutely.

Um, so that was really, that was a big one.

And then I did end up with one black juror, uh, a black gay juror actually, who, um, who

was a great juror.

And then my favorite juror of all, of all was actually an older Vietnamese American woman

who I literally have no idea how she made it on.

She said in her voir dire, she said, I come from, uh, this, you know, communist authoritarian

country.

She's now, she was like a CEO of a Bitcoin company or something, but she's like, I have a

lot of trouble with law enforcement, a lot of problems with use of force.

And she was really, you know, pretty strong, strong defense juror that I was astounded that

he didn't kick her.

Um, okay.

So, uh, anything else with jury selection then?

Uh, what about like porn stashes, uh, voir dire, anything about that?

I mean, he's a really bad voir dire.

If I can be so bold, he barely, he basically cross examines them.

He doesn't really get to know them and he's not very friendly.

And he just, all he does is he like sticks to his script of, you know, it's my job to

prove the case beyond a reasonable doubt.

If I do that, will you find the defendant guilty?

Yes.

Okay.

I don't see any nose.

Great.

Moving on.

Um, uh, you know, like he just, he sticks to those kinds of things.

Like, does it, okay.

You're not allowed to consider punishment.

Um, if I prove my case, uh, is there anybody who's going to think, oh, I can't, I can't

find him guilty.

Cause I'm afraid of what could happen to him at the sentence.

Nope.

Okay.

It's kind of also a universal truth that as defense attorneys, I think we're just more

personable during voir dire.

Like I've, I've really never seen a prosecutor who I'm just like, oh my gosh, I like you

so much.

After voir dire arrest, we definitely win the personality contest.

Usually.

Almost always.

Martina, how, how is, uh, Alona's, uh, impressionation of a porn stash there?

Does that sound pretty...

Dead on.

That is, there is...

The, can you be fair?

Okay.

I mean, that's spot on.

Okay.

So then, um, what happens next in the case?

You guys pick the jury.

Now it's time for opening statements, right?

Uh, opening statements.

Um, the DA's opening is pretty much, uh, very, very brief.

Exactly what you would expect, just this kind of, um, uh, his theme, the whole trial, by

the way, was something that public defenders will laugh as soon as I say it.

Training and experience.

Training and experience.

Oh, man.

Who said laugh?

I just can't help it.

Ugh.

The shield they all use.

My training and experience.

My training and experience.

Officer, why did you decide to, uh, you know, do this particular thing?

Or what is your opinion based on?

I say it and experience.

Yeah.

So, um, that was his thing.

That was his whole thing.

They did what they were trained to do.

This is how their training is.

This is what they were trained in the academy.

This is the use of force.

This is the levels of escalating force.

And when they, when a suspect does this, you do that.

They did what they were trained to do.

They acted reasonably.

He resisted.

End of story.

And what about your opening statement?

You told the story.

I told the story.

I, my, I started off by saying it's not a crime to exercise your constitutional rights

and that my client nearly asked the police why he was being arrested.

And all they had to do was just tell him because he had the right to know it's the law.

He had a right to know.

There's a penal code section that says you have the right to know.

And they wouldn't do it or they didn't do it.

And instead, within seconds of spotting him, they punched him, tackled him, and it resulted

in a dislocated shoulder and abrasions to both his knees.

All right.

So now it's time for the evidence, right?

Time for those cops to get up and testify.

Is that what's next?

Yep.

All right.

So tell us about the police, the testimony.

So first it was the officer number two who did not throw the punch, who testified first.

And this is the one with the body worn video, right?

Exactly.

Okay.

And he testified and he was very snide and smug on the stand, I would say.

And I think he really turned off a lot of jurors that way, actually.

I mean, the little symbiosis between Pornstache and the officers was just kind of, they looked

like they were, you know, a cabal.

They were in it together.

It was not a good look.

The very heavy direct examination on training and experience.

What is your training?

Tell me about your training.

What are the possible weapons that you can use?

And what are levels of resistance of a suspect?

And what level was this suspect resisting with, et cetera?

Well, and I think that's super interesting that he's getting into this whole thing about

these other weapons that they could have used as if it's like, oh, look, the punch to the

face, not that big a deal.

They could have shot him and they didn't.

And, you know, so it's like he's trying to kind of distract in some way and like minimize.

And actually, he argued that during closing, which turned off a lot of jurors.

So that was so my cross of the officers was pretty focused on the amount of time that that

how quickly everything happened.

I did get into the it's penal code section 841 that people have a right to know the person

making the arrest must inform the person to be arrested of the intention to arrest them,

the cause of the arrest and the authority to make it, except if there is a reason to believe

the person is actually engaged in the commission of a crime.

How did the officer respond when you brought up the penal code 841?

He basically said he he just he got very defensive.

He's like, I don't have to do that.

I don't have to stop what I'm doing and answer people's questions.

He completely essentially denied its existence or denied its effect.

Like I was like, no, don't do that.

And I actually got a jury instruction about that.

So it worked out pretty well.

What jury instruction was that?

I got a it was a pinpoint.

I got a pinpoint in the lawful performance that does that said what the penal code section

says that people have a right to ask why they're being arrested and are being told a right

to be told.

What about the video?

Did anybody play the video with this first officer?

I so I was surprised the DA played the video in opening statement.

I had already planned to play it in my opening and I did, but he played it in his opening

only in slow mo, which I made a whole lot of.

I was like, I'm just going to play it at normal speed so that you can actually see it.

And and we got played the DA only played it in slow mo in these little chunks and tried

to get the cop to kind of define each action.

And then what do you see happen here?

And then what did he do there?

And why did you respond that way?

And just kind of this blow by blow, but only in slow mo.

So then during the cross examination, did you even play the video then?

I played parts of it.

I and I used certain so and interestingly, you know, after there's a use of force, they're

required to call their sergeant to the scene to do a use of force investigation.

And their their cameras were on the whole time.

Right.

So after they arrest my client and he's just kind of sitting there peacefully, like not

doing anything, not talking, just kind of chilling.

And this and they're talking between each other.

And one of them says to the other one cups is to the other.

Did he did he take a swing at you?

And cop number one's like, no, he just kind of filled his hands.

So I use that because during direct they tried to claim that he did swing at the other cop,

things like that.

So I impeached them with some of that body worn camera.

And I played some of those portions.

That's gold.

I mean, that's the kind of stuff we rarely get.

Right.

And, you know, usually they turn either turn it off or they do this thing in San Francisco.

What's it called?

Greening out.

Alona.

They mute.

Yeah, they go on mute.

At this time, I'd like to thank and acknowledge our newest members to the A&G Patreon program,

Noelle Cavillo, Sarah Parker, Fernando Lamas and Kelsey McDonald for their contributions to the

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If you, too, would like to donate to the podcast and receive a shout out on an episode

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Thank you.

Anything else of significant with this first officer that testified or anything that was

said or any sidebars, objections, anything like that?

So the big sidebar and objection thing happened because, like I said, when I tried to cross

on training, on the use of force training, because it was if you go there, then then, you know,

and it was said the judge said if you go into that, then he's going to explain why he felt

the need to use that force.

OK, OK.

And if you know something about this person or something, that could be a reason.

So you're essentially you're going to open the door.

So I got shut down.

But incidentally, the DA porn session was so loud yelling at me in the back hallway that

the clerk had to come to the back in the hallway and say, you know, that we can hear everything

in the courtroom.

Wait, why was he yelling at you?

Because that's his mode.

He just he's a mean person.

Oh, OK.

So is tension ramping up between the two of you as the trial's going on?

Was tension already high?

I would say tension was high from the very beginning, but it got it definitely got ratcheted

up as the trial proceeded.

Let's let's let's talk about the the second cop then.

How's that go?

So cop number two gets up.

I should actually call him cop number one.

He's number two in the testimony order, but he's the one who first approaches my client

and tells him he's under arrest.

And so before the trial started, I again emailed the DA and said, what about the second cop's

body worn camera?

And he again said, to my knowledge, it didn't record.

It was dislodged during the the struggle or something.

And I cc'd the judge into this email and said, he says to his knowledge or he's informed and

believe or whatever it was, can I'm asking that the court order him to find out one way

or the other if this other body worn camera from officer, the other officer exists.

So the so he does respond 15 minutes later.

It did not record.

It does not exist.

OK.

Oh, all right.

So the second officer gets on the stand to testify and the DA says, were you wearing your

body worn camera that day on direct?

He says, yes.

Says, did it record?

Yes.

Uh, have you seen the footage?

Oh, yeah.

Hmm.

And so I immediately went ballistic.

I was like, objection.

And so we go in the back and I said and we end up calling the cop to the back hallway

as well to explain.

And he says, oh, yeah, it did dislodge.

But, you know, I have I have a recording.

You can you can hear you can see everything up to that point and then you can hear everything.

So we had to take essentially a break at that point.

And the DA was ordered to get me that recording.

And but in the back, I said, judge, excuse me, but he lied.

I said, like, he lied.

He said it didn't exist.

And he this is when he went ballistic.

And I actually thought that Pornstash was going to punch me like he was like towering

over me, screaming and like, how dare you call me a liar?

And he said, why don't you just file?

I don't you can probably bleep this out.

Why don't you just file?

Fucking state bar complaint on me like you do to everybody else.

And I was like, don't worry.

Hello.

But and I did.

But that's a later story, I guess.

So but that all happened.

And that was some of the yelling in the back.

So that was the big drama that happened in the middle of the trial.

Wow.

Wow.

So did the judge make any rulings at that moment then?

Or were you trying to seek for something to seek something?

It was just a discovery of violation.

So at that point, I just said, I can't cross the cop until I have the

video.

OK.

And so he ordered it turned over and it took, you know, Pornstash took his

sweet time getting it and then made up a bunch of excuses.

But the next morning before the jury came in, I put all this on the record.

I actually asked for the judge to dismiss the case with prejudice.

But I knew that wasn't going to happen.

And then I asked for the jury instruction on late discovery.

And I said that it was a Brady violation.

And I actually put in the record the email that said it doesn't exist and that that was

a lie.

And I put on the record how he had yelled at me, I think, and in the back and everything.

But did you ask for a dismissal with prejudice?

Because this is it's not only it's yeah.

And I'm just surprised that this judge, knowing what I know about him, didn't because I mean,

that's pretty egregious.

Yeah, he did.

He felt he was he made the D.A. answer a lot of questions about, you know, why he said

that it didn't exist.

And he gave this convoluted, crazy story that doesn't make any sense whatsoever.

I don't even remember it.

It was so convoluted about a meeting with them.

And he thought he was referring to some other video and something ridiculous.

It was stupid.

Wow.

OK.

But I did get my jury instruction about late discovery.

So that was good.

OK.

Yeah.

Maybe you can.

Can you just like tell us what the video shows then?

It showed it showed that that there was more attitude from this officer than you could see

from the first video.

OK, because so the the second cop said made like this really messed up.

I'm trying to remember what the word he used was.

He said something like, is that oh, so that's how it's going to be when my client just said

why?

Like, oh, take your hands out of your pockets.

And my client did right away.

You can see that on this other video.

And then you can also see that he that when the before the officer tries to grab his arm,

he says, oh, so that's how it's going to be.

It's like, what's going to be?

What are you talking about?

Like, he hasn't done anything or said anything.

Right.

He hasn't resisted.

He hasn't done anything.

But it was very like the aggression was more visible from that video.

Oh.

And you couldn't hear that on the other video.

Sorry.

You watch this and you put it on the record that it was exculpatory.

Yeah, exactly.

But I had enough time to kind of look at it and be like, actually, this is exculpatory.

This is clearly exculpatory.

Because you can see my client's hands very clearly.

You can see you had he had a cell phone in one hand, actually.

It wasn't that he had empty hands.

But you can see his hands are open and visible.

And he obviously didn't have a weapon.

And although the first cop had said he didn't immediately cooperate when told to take his

hands out of his pockets.

On this video, you can see that he really did immediately cooperate.

Anybody who might not be a lawyer who's listening, I think it's important to talk about that Brady

is like a special category when it's exculpatory.

You know, the prosecutor's duty.

He should have turned it over.

It doesn't matter that the prosecutor didn't know about it.

So then Pornstache plays this second video with the police officer then, right?

The second one to testify, right?

Yeah.

All right.

And then what does he ask him about it?

You know, he he asked him how it got knocked off.

And essentially that the camera got knocked off by my client struggling with him or something

was his version of that.

And he just he does the same thing he goes through and he tries to turn my client's body

language into the fighting stance business, which is just silly.

Oh, OK.

So he called he says he's taking the fighting stance right here when your client is doing

what?

Just holding his hands up in the air like he has his hands on his side like, you know,

he has a cell phone in one hand and he kind of like he looks like he shrugs a little bit

like like what?

Like, what did I do?

Like, why?

That's it.

That's his fighting stance is why.

You know, it's funny.

I feel like maybe maybe in the future trial one day, I'm going to I'm going to say I'm

going to do a motion in limity to prevent the cop from testifying fighting stance.

Because that's what kind of seems like a conclusion.

I love that.

Right.

Like that's a conclusion.

Totally is.

Yeah.

Especially in these kinds of cases.

Right.

So maybe maybe for future.

Let's keep that in mind.

File that away.

I love that.

All right.

So tell us about your cross-examination of this of this cop then.

So I was I definitely did try to go after the day a little bit when I was

crossing the cop by I asked the cop specifically, did the D.A. ever ask you whether or not your

body one camera recorded?

And he he of course, he's covering over the day.

He said, I don't recall.

That's what he said.

I don't recall.

Code for.

I'm not going to tell you.

So it's like you're sort of continuing your discovery fight into the cross-examination.

I totally was shamelessly, perfectly shamelessly.

The jurors are like, why does this matter?

Yeah, they probably were like, why does this matter?

Yeah.

But I think they kind of figured it out when I mean, it was clear that something happened

when they knew they couldn't not know.

They knew that something was like, oh, my God, this video.

But yeah, I kind of went after him for oh, I remember this is the other really funny part.

So the officer claimed this officer has an injury.

Poor baby.

He hurt his he hurt his fist.

His hand had an injury.

So I was like, because you punched my client in the face, you're injured.

OK, great.

So he injured you intentionally with his face.

Oh, yeah.

I forgot.

Actually, you just reminded me that the other officer claimed that he had a shoulder injury.

That was the use of force.

And I was like, but my client didn't touch it like that.

The only thing he had done to him was allegedly graze his cheek with his fist, which does not

happen on video.

And you can't see that.

It didn't happen because his hands were flailing.

And that somehow and that he didn't even he wasn't even involved in the tackle.

So how his shoulder would have been in pain is completely ridiculous.

That was so I did a lot of cross on those kinds of things.

So, Alona, after after this last cop testified, what what did the D.A. do next?

The D.A. arrested.

That's all the the evidence he had.

OK, so now it's time for the defense case then, right?

Yep.

All right.

Did you put on a case?

I did.

Actually, I called technically three witnesses.

I called the woman who was standing there, my client's friend that he was chatting to.

OK.

And she wasn't the best witness, to be honest.

Like she had kind of forgotten some things or she didn't have, you know, she kind of she had never seen the video.

And I wanted to make that clear during my direct because I was trying to contrast the honesty of her testimony to the way the police testified.

You know, you know, they had seen the police were and they had excuses and explanations for, you know, each piece of it versus her.

She just I asked her to describe, you know, what the conditions of the street were, what the her initial observations of the police were and her interaction with my client and what she saw of the police officers and what they did.

And then how she how she went inside.

And then I asked her if she'd ever seen the video and she hadn't.

And then I showed her the video and asked her to identify herself.

All right. So what happened next in your case, then?

I also called the doctor from San Francisco General Hospital to testify about the medical records and my client's injuries, the dislocated shoulder and the bruising.

I mean, that's good that you did that because it is nice, though.

But I always feel like doctors don't like to come in and testify ever.

Like they're like the most difficult people to get into a courtroom.

Yeah, they really are.

They really are.

But he was cool.

Like he actually was all right.

I think that he thought when he understood a little bit about what was going on and the DA attacked him so bad that he just he was totally by then it just looked really bad.

Like, well, yeah.

How was Pornstache attacking him then?

He's like, you don't know how this injury happened, do you?

He's like, no, I just have what I observe as a doctor and what my patients tell me.

And then he started crossing on malingering like my client was faking it.

He was trying to get into my client's drug use.

And this is hilarious.

He obviously didn't read the records because he asked about whether my client was given fentanyl or any painkillers.

And the doctor says, actually, he refused the painkillers.

He didn't want fentanyl.

So that was a great moment because he was trying to imply that that he was he was he was lying for the drugs.

And it was like, no, actually, he refused all drugs.

The fact that the DA was trying to process or cross on malingering because now he's saying that the client was malingering and your conclusions as a doctor are wrong.

And then, of course, he's not going to testify to that.

Be like, oh, yeah, maybe I'm wrong.

Now he's pulling in his own credibility as a as an expert witness in some ways.

Well, I think it totally makes the DA look like he's grasping at straws at this point because everyone's going to accept the doctor is an expert.

Yeah, exactly. And, you know, they he asked him during the crisis, like, you can't check to see whether or not, you know, the pain is real or whatever.

It's just what they tell you. And he's like, well, I can I can look at, you know, limitations in motion.

I can do a range of motion tests and I can see if somebody can't lift their arm because it's, you know, a dislocation.

And, you know, he said he also had the x-rays and everything.

All right. And any other evidence in your case?

So the last piece of evidence is the other crazy story of this case, which is going back to the beginning of the investigation at arraignment.

When I took photos of the injuries because my it had been a week and I just didn't get my investigator to go in and do it.

So I was worried about the passage of time.

So in order to get the photos and I asked him to stipulate, I didn't ask him to stipulate to admission.

I asked the porn test to stipulate that I had taken them on this date, time and location and that they were a fair and accurate depiction of how I observed the bruising.

And he refused. So I had to take the stand and I had a colleague do my direct examination.

So. All right. So you went to the D.A. and said, like, hey, look, I took these pictures.

They're in my cell phone. You can see the dates on my cell phone of these pictures.

Will you just agree that I can enter these pictures into evidence and that these are the pictures I took on said date?

And the D.A. wouldn't agree to that. Right.

Correct.

So you had to take the stand now in your own.

Well, I mean, you had to take the stand and testify in the trial that you are an attorney to.

Right. Is this a first for you?

Yes, it is definitely a first.

Yeah.

And hopefully a last because it was really unpleasant.

Is this why you said that the lady wasn't the star witness?

Because you knew you were going to be the star witness in your own trial?

No.

Yeah, no, I wish.

But it was I was in my own way, I guess, in a very unique way that I did not ask for.

And OK.

So so who came in to question you then?

So my colleague, Tanette, I asked her to do it.

I thought that she would do a good job.

Is she also a badass public defender?

She is such a badass public defender.

All right.

And I also wanted to continue the theme of like the three hesty white guys on the prosecution side.

So I picked a woman of color to do my direct examination.

How did your direct go?

It was the direct was easy, even though the D.A. continued continually objected.

I did try to milk it a little bit more than I probably should have.

Like I asked her to.

So just do I.

She marked all the photos, asked me if I recognize them and when and where I took them and why I took them.

And she asked me how my client appeared to me at this time.

And I said he appeared to be in pain.

And she asked me why I said that.

And I said, because he was wincing as he pulled his sweater up so I could take the picture of his shoulder.

And then the D.A.

Well, so that's my that was my.

Did you were able to slip in like based off my training and experience into your testimony?

That would have been really funny, but no, I didn't.

And did you like turn towards the jurors when you answered just like a professional witness?

But yeah, I did try to look at the jury.

I tried to do the whole like just, you know, I'm talking to them, not just my the lawyer.

Right.

All right.

Well, tell us about the showdown then.

What did Pornstash question you on?

So he said he started off with basically like you did not have your investigator take these photos, did you?

And I said no, because I started to say no, because I was worried about the passage of time.

And then he just started yelling at me and said, I didn't ask you why you answer my questions and nothing else.

Whoa.

Like he started yelling at me.

It was scary.

It was so scary.

And then the avagers were reacting to that.

Well, no, because this is the next thing that happened is I kind of just looked down because I was so shocked.

I was like, I couldn't believe he was doing this.

And I was like embarrassed for him almost.

So I just looked down and he then starts yelling, judge, order her to stop rolling her eyes.

She's rolling her eyes and she's smiling.

And I was like, I'm really uncomfortable right now.

Oh, my God.

Yeah.

Yeah.

It was, it was, it was nice.

And then he started asking me about conversations with my clients.

So it got shut down because I basically said, I claimed attorney client privilege.

I was like, I'm not going to answer questions about my conversation with my client.

I like that.

And then the judge basically was like, okay, a little bit of a, not like reprimand, but like, this is why you should have your,

your investigator take your photos.

And I was like, trust me, I, I, lesson learned.

Cause you don't want porn stash to fly off and lose his shit again.

So that's why.

Okay.

Lesson learned.

That must've been crazy when he fired back at you and just yelled at you.

I can see, I mean, I can see why you like just looked down because what else are you supposed to do?

The jurors were shocked.

I mean, they, that's when I saw their faces.

I looked up after that and they just were so uncomfortable.

They were like, oh my God, what the hell just happened?

Like, why is this guy yelling at her?

That's just so unnecessary.

I mean, I have to say he did play, he played his role perfectly.

I couldn't have asked him to do better, but I didn't want that to happen.

I was really uncomfortable.

I wanted him to stipulate.

So I didn't have to take the stand.

Well, I just think this is also so evident.

Like it just makes his pettiness evident, right?

Cause I mean, I feel like this is something a lot of attorneys do.

Yeah.

We know we should have our investigators do this, but you know, at arraignment, we want to take them right then and there.

I've definitely done that.

Okay.

So what happened next?

You were at the defense rest?

Defense rest.

All right.

It's time for closing arguments then, right?

So the DA's whole closing was, again, with the training and experience.

That's what it was.

And he was talking about properly trained officers, officers following their training and how they don't control the situation.

They just react to what other people do.

And that's what happened here.

They did.

They responded how they were trained.

And if he hadn't resisted, none of this would have happened.

And they used the least amount of force necessary.

They could have beat him with a baton.

They could have pepper sprayed him based on the allowable use of force from their training.

But they didn't, which, by the way, was the look on my black juror's face was the most precious of all.

That was when he was like, oh.

And he told me afterwards the trial was over.

When I talked to the jurors, he said that's what did it for him.

He was like, oh, my God.

He's like, I can't believe that he said, oh, well, they could have used so much more than they did.

They went easy on him.

Wow.

Wow.

Okay.

All right.

So that's his closing argument.

Okay.

You got a tough one to rebut there.

Let's hear about your closing argument.

So my closing argument, I talked about power and how absolute power corrupts.

That was like one of my theme was about power and the power of the police and the power of the prosecution against a measly citizen.

And not just any citizen, but a Native American, a Latino man with few resources, not a citizen like me, you know, a lawyer and a Caucasian lawyer.

Right.

And I also, you know, did said the police have tough jobs, but doesn't place them above the law.

And I try to say that there are good cops and there are bad cops, but this is not a police state.

And that was another big theme.

And I did that a little bit for my Vietnamese American juror.

Yeah.

Do we really want to live in a society where you can't even say why?

Are you just supposed to get ordered around with no explanation?

Is that the kind of society we live in when you're minding your own business?

You chop it up with a friend on the sidewalk.

Two big guys with badges, guns and cuffs order you around.

You're not supposed to say why.

And then I talked about what the video shows and what the video didn't show.

And I made a big stink about, I called training and experience a red herring.

And I said, I said, you know what you're, what's not going to be in the jury instructions that you've received or you were just read?

Quote, as long as the officers did as they were trained to do, then they were acting within the lawful performance of their duties.

I was like, that's false.

That's not in the, that's not in the jury instruction.

But what is in the jury instruction is that they have to tell him why he's being arrested.

And that if they use excessive force during an otherwise lawful arrest, that, that they are not acting in lawful performance.

You know, I, I like that.

I like the fact that you pointed out that training, the words training and experience are not anywhere in any of the laws.

You know, I really, I've never thought about that before, but that's a great argument.

Thank you.

And I also made a big thing about how the police are not on trial, which I had done during jury selection.

I said, this isn't about, the police are not the ones on trial here.

If you find my client not guilty, it doesn't mean he gets, you know, millions of dollars from the police department or the city.

You know, they don't get in trouble if you find my client not guilty.

And I wanted to make sure that they knew it wasn't a civil case and that they're not the ones on trial.

Okay. So now, okay. So the juries are, the jurors are deliberating then.

So how's your client been during the trial anyways?

He was really, a little bit difficult. I'm not going to lie.

He was hard to control.

He wanted me to present things that were either irrelevant or not in the evidence.

Like the fact that the, something silly, the cop had said that when he saw him the day before that he was,

that he had gone into his gate and had this conversation that he was petting his dog and he claimed that the dog was a pit bull.

And my client's like, my dog's not a pit bull. Here's a photo of him. Show the jury the photo.

And I was like, yeah, no, it's not really.

I don't know. I might, I might've, I might've done that.

Just like a cute little dog, like Mr. Mr. Scruffy or something like that.

Well, he brought it, we brought me that photo on the morning of closing.

So I was like, okay, it's too late. That ship has sailed.

Also, Kaya really loves that dog.

So I think it's like, he was deeply offended that anyone would insult the dog.

Yeah.

Oh yeah, that's so true.

Yeah. Um, so how long did the jurors deliberate for?

They only deliberated a very short time.

They deliberated for just like a couple of hours.

Okay. So that's, so tell us about the, the reading of the verdict then.

Yeah. So they read the verdict. Um, and so they, they said they had a verdict and they,

they come back in and they, um, found him.

Um, Oh, they also got, I forgot to say they were instructed on the lesser included offenses.

Okay.

Um, and there were several of them, uh, lesser included of PC 69.

They got instructed on a one 48, which is just resisting without force, resisting, delaying

or obstructing.

And they got instructed on simple assaults and simple battery.

Uh, if they decided that my client did punch the cop, but that the cop, but he didn't know

he was a cop or something.

Oh, knew or reasonably should have known that then, then they, he, they could find guilty

of a simple battery or a simple assault.

And a lot of times defense attorneys will make the decision to kind of go for the lesser.

Like what was your approach?

Did you, you wanted the full walk on everything?

I've wanted the full walk on everything.

Okay.

And they did fully walk him on everything except for the lesser included of the one 48, a one

where they hung.

And it was based on the fact that when the office, when the officer says you're under

arrest and my client says why the officer goes to grab his left arm, he kind of moved

his arm backwards about four inches.

Five of the jurors thought that could have been a one 48 as he's saying, why, what did

I do?

And then the other seven jurors were like, nah.

And then, so they, they hung on the lesser one 48.

Oh, okay.

So he's not guilty on everything, uh, except for the one 48 because five jurors believe

that we live in a police state.

Okay.

Yeah, pretty much.

We're moving your arm five inches, five inches and asking why.

You know, when, when, when, when there's a penal code instruction saying you can't ask

why, you know, like let's, what happened to that, that hung case?

Did they, did they retry it or was it dismissed?

It got dismissed eventually.

Okay.

Okay.

Of course.

No, the DA eventually did it in misdemeanor land.

He, he resisted for several weeks and then he eventually did it.

Resisted and delayed justice there.

Yeah.

Yeah.

Which I guess will lead into Martinez.

Alona, congratulations on a, on a great job done on your case.

Woo.

Woo.

Thank you.

Yeah.

Thank you.

It was a hard fought and very satisfying victory.

How would, yeah.

How was the client afterwards?

Oh yeah.

That was the best part.

He just started crying when they were reading the not guilty verdicts.

He's sobbing at the table next to me and you know, I put my, it was pre COVID.

I put my hand on his shoulder and I'm like trying to, you know, make him feel it.

But the whole jury is just like, Oh, like they just were like, Oh, is he like, and then afterwards

they asked me if he was okay.

And I was like, yeah, he's just a very emotional guy.

He definitely is a very emotional guy, but that was really sweet.

And, and, you know, he gave me a huge hug and he was sobbing and he was just, he felt

like really vindicated.

Well, great job.

That sounds, I mean, I don't know.

I mean, I feel like, I mean, sure you should have used an investigative, but like, I don't

know, like, I don't know.

I'm so happy that you didn't.

It actually ended up working to my advantage, even though I don't think I would do it again.

What?

And then, so how long have you been a public defender for?

So I actually had a weird path.

I was a paralegal at the public defender's office in juvenile from 2005 to 2010.

Okay.

And then I went to law school and I've been a member of the bar since 2013.

So I've been a public defender since 2013.

First in Santa Clara County and then now in San Francisco since 2015.

And yeah.

What brought you to this calling?

Why'd you become a public defender?

My time at Juvie really inspired me as a paralegal.

Initially, I thought I wanted to be a social worker and I actually applied to MSW programs

for that, but I was talked out of it by a friend and colleague who convinced me that I really

should just become a lawyer and that it's what I was meant to do.

And it is, it's, I feel very strongly about that.

What we do is we fight for civil rights.

We fight for justice for our clients who are so often denied justice.

I'm so glad that somebody convinced you to become a lawyer.

It really is what you were meant to do.

You are one of the fiercest advocates I've ever met.

Oh, thank you.

Amazing issues.

Mergey emotions all the time.

You just, you're ready to take on the system every single time.

It's amazing to work with you.

So, Alona, why did you reach out to me and send me an email to be on the podcast?

So, I started listening to Another Not Guilty because one of my colleagues told me about

it and I, like, I got really into it while cleaning the house and stuff.

It was great background, like, listening and the stories were awesome and it actually gave

me some different ideas.

Like, I love the, there was one about a homicide where it happened inside a house and the guy

tries to take the body out in his sister's car, I think.

And I feel like that is a really helpful case for, you know, I came up with all sorts of

ideas for other, for one of my other cases from that.

You know, there's kind of, I find a lot of inspiration in it and, you know, oh, the gang

case also, the two episode gang case was fascinating.

So, I felt like I got really into it and I kind of aspired to be on it and I feel really

honored.

I felt like this case was the perfect one because it had this hook of, like, luckiest man alive

wins two not-guilties with two public defenders within one year.

And I just really, you know, I think it's an honor to be on another not-guilty as a public

defender.

Well, thank you.

Thank you for that.

And I mean, it's definitely an honor to have you.

I'm just, you know, I feel humbled to have, to be able to meet public defenders across our

nation or even just upstate in San Francisco up in the Bay Area.

It's cool that we're all able to connect and have this sort of common thing, you know,

the common mission.

And I just really like sitting down and talking and meeting other public defenders.

You guys are just lovely people.

We're a team.

We're a team.

We all are on the same team.

Yeah.

Well, and I think the other really great thing about this show is, like, I can, I've recommended

it to family because it kind of shows just how ridiculous sometimes things are behind the

scene and how much money is wasted and kind of the stuff that they would never hear otherwise.

So I think it's just great to kind of give people who may not always have that insider

knowledge, the background and perspective that, like, we really do win a lot of cases that

never should have gone to trial.

And some of them are hot, hot, hot battles.

And maybe some are ones that you're just like, oh, my gosh, how did this ever get here?

I just want to say, Alona, thank you for coming on the podcast today, for sharing your

story.

And Martina, thank you for being an awesome co-host.

Well, thank you for having me.

Yeah.

Yeah, that was really fun.

I hope we can do Martina's segment soon.

So after this trial, did anybody go out and celebrate?

Oh, yes.

There was some celebrating.

There was pre-COVID.

Oh, yeah.

Our client also celebrated for about a week.

Oh, really?

Really?

Why?

What happened?

How do you know that?

Well, that's how it leads into my case.

What?

Wait, what happened?

Yeah, well, he continued the partying for about a week solid.

And, you know, one morning, as after a night of partying, many of us know the feeling, he

did not want there to be loud banging and construction happening to the building next to him.

And he was very vocal.

And he ends up throwing some rocks at this construction worker.

And then they say he also ran down and tried to strangle him with some rope.

And that is how I got the case.

And who was the prosecutor on that case?

It started off with porn stash.

Oh, man.

Well, we got to hear all about that.

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

Shout out to Daniel Mark, original A&G theme music composer.

And guess what?

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