A Father's Absence Makes The Defense Grow Fonder – When the State Brings Drama Instead of Proof

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So the only indication I had of how Lily might be was the 9-1-1 tape that I had listened to. And I knew Lily was going to be a little fighter. Because when she called the police on the 9-1-1 tape, she was fighting with the 9-1-1 operator. She was cursing. She was yelling. She was very upset. They were merely asking for an address. And she was full of attitude and disagreeable.

So I knew that Lily was going to be a little fun. And then Lily, when called to the stand, started fighting with the judge.

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

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

These stories are about the not-guilties public defenders get on a daily basis.

In an unjust criminal system.

With a deck stacked against us.

Another not guilty.

Good morning. And all right. Welcome back, everybody, to Another Not Guilty.

Today, Another Not Guilty Land. We have a pretty dope co-host. Actually, it may be the co-host that doesn't need an introduction when it comes to Another Not Guilty.

It's a great director from season one. What was it? Can't kill a cop roach?

Can't kill a cop roach. Yeah. Atomic lies can't kill a cop roach.

And season two, may the centrifugal force be with you, which was a title I thought. I'm very proud of that title.

Anya, guys.

Hey, everybody.

Anya.

Hey, I'm so glad to be back. I'm so glad to be back. This is awesome. Thank you for having me again.

Yeah. Anya, good to have you back. And, you know, I'm not going to lie, part of the reason why you're here co-hosting today is because our guest, Public Defender in Colorado, big fan of the podcast, requested that you specifically co-host.

Really?

Can you believe that?

Yeah.

Man, that's awesome. I didn't know that.

Yeah. And, you know, well, let's introduce the guest now. Anne, say hello, Another Not Guilty World to Anne from Colorado. Anne, how are you doing today?

I'm doing great. Thank you for having me.

Hi, Anne. How are you?

I'm good.

Awesome.

You know, Anne, just so you know, I kind of view guests and co-hosts kind of like how you kind of get the public defender you get. You can't choose your public defender.

Well, you can't choose your co-host. All right. But I made a special exception just for you. So...

I appreciate that. I'm very, very excited.

So, Anne, how long have you been a public defender for?

I have been practicing since 2005.

Okay. All right. And what jury trial are you going to share with the public defender audience today? Or another Not Guilty audience today?

This was a case that had four charges.

My client, I'm going to call her LB, was charged with one count of injury to property with a domestic violence enhancer.

And one charge of injury to property non-domestic and a count of assault and a count of battery, both non-domestic.

So, two separate victims in this case.

Oh, okay. Okay. And what did your client allegedly do?

You said that you're going with the initials of LB.

Yes. So, there was a second case that had been charged that did not ultimately go to trial that kind of precipitated my trial.

And the allegations were in the evening preceding my case.

My client went over, well, was involved in a physical altercation with one of the victims, victim Victor, who she has had an 11-year relationship with and three children.

And there was a domestic violence incident between the two of them the evening prior.

My client went back to a house that Victor resides at with a woman named Lily.

And she is the second victim in my case.

My client, in the preceding evening, went over to basically smash out Victor's car windows because of the altercation between them.

And was, in fact, successful in smashing out car windows to one vehicle of two that Victor owned.

And during that incident, my client LB dropped her phone, left the scene.

The police were called.

And a warrant was put out for LB regarding that incident.

And her phone was recovered and put into police property.

That case was ultimately dismissed.

The only named victim in that case was Victor.

And he did not come to court.

He did not answer to attempts at service.

And it was ultimately dismissed about two weeks prior to my actual case going to trial.

What why did your client I know this is the this is the preceding case.

So this incident happened before your case.

What why why did your client go over there?

Why did LB go over there and smash out his windows?

LB and Victor have had a long history of domestic incidents between them.

My client being the victim of those incidents.

And there was an altercation between LB and Victor, where he beat her up, kicked my client out of the car with her three children.

You know, told them to walk home or take the bus or get home on their own accord.

And after getting the children home, LB went over to where the house where Victor stays because she was pissed.

He beat her up.

He beat her up.

She had injuries.

She had a huge knot on her head.

And she just reacted.

Were those previous incidents where she was a victim reported to the police?

Would she ever call the cops on him?

No, she didn't.

She has a long history of trauma and just does not doesn't trust the cops, doesn't like to involve the cops and likes to kind of resolve her issues on her own.

So there was one particular incident between the two of them that Victor had knocked out her teeth.

And I'll backtrack.

She may have called the police during that one incident, but I think she did not go to court and pursue those charges against him.

So it's really just an ongoing issue of domestic incidents between them that remain out of the courts.

And Victor, you know, he he likes to likes to get around a little bit.

So Victor has about 13 or 14 kids with eight or nine different women.

Wow.

And three of those kids belong to LB.

And Victor likes to have a lot of girlfriends.

So Victor beats up your client in front of the kids.

Your client then goes over to his house later that night and smashes a window.

Right.

Right.

She breaks out some one or more windows of one of two vehicles that Victor owns.

Okay.

And then Victor calls the police and a case is filed.

Right.

Right.

And that case goes all the way to trial, but it's dismissed presumably because what?

Victor doesn't show up.

Right.

Okay.

So that's that case.

But after your client smashes the windows, that's a separate case.

What does your client or what happens next that leads to your client and your case?

So the next day, my client realizes that in the evening proceeding, she has dropped her phone.

And so she goes back to the house where Victor stays.

And he stays there with a woman named Lily.

And Victor and Lily have had a relationship for 31 years and have a 25 year old son as a product of that relationship.

So LB goes back to the house, bangs on the door and is wanting her phone back because she believes that Victor and Lily have taken her phone hostage.

So she has no idea that that Victor called the cops and that the police have her phone.

Is that right?

Right.

Right.

She presumes that she lost her phone the night before that they have it and then they won't give it back to her.

So she goes to retrieve her property.

So she says, so she knocks on the door saying, where's my phone or thinks her phone's there.

And what happens next?

So Victor answers the door.

Lily is in bed.

So here's a verbal altercation between LB and Victor.

Lily then proceeds to come to the door where she stands and watches this argument ensue.

Then Lily kind of takes charge and Victor kind of disengages from the argument.

And Lily is now standing at the door.

Lily says that the police report reads that my client walks from the door to the vehicles, two vehicles that are now parked on the street and picks up a rock on her way, goes to the street side of the vehicles and proceeds to continue smashing out or attempting to smash out the windows of the two cars.

LB smashes out the car windows.

LB is, is now smashing out the car windows for a second night.

Is the, is this the same car that she already smashed a window the day before and she's just going around and getting the remaining ones she missed?

Well, yeah, as we'll find out, my LB says that she was finishing the job.

Ah, all right.

So she is smashing out, she's continuing to smash out the windows on the car that she had already allegedly caused damage to the night before and then is going after a second vehicle.

You got to appreciate the good work ethic.

You know, if you're going to get a job done, get it done all the way.

Do it right.

I like it.

So Lily exits the house and makes her way to the driveway where she is asking LB to leave.

And the police report reads that LB then comes to Lily and just punches her in the, in the mouth and then leaves.

And the punch results in a pretty significant lip injury to Lily.

And that's because Lily thinks the police report reads that Lily thinks LB is holding a very hefty, full key chain full of keys and all sorts of gadgets and, and whatnot.

And, and believes that perhaps maybe the keys snagged on the Lily's lip and the injury to the lip is interior.

And it is almost split in half.

Oh, it's like.

Ouch.

Right.

So, you know, fire responds to the scene.

Lily's put in an ambulance and carted off to the hospital.

And at the scene are the keys of LB and also not, you know, we, we have not learned from our mistakes.

We keep leaving little souvenirs for people to find.

We do.

So the, now the police have the phone from the night before and the keys from this event and very bad lip injury.

Did they interview Victor that night?

They did interview Victor.

Did he corroborate Lily's version or any additional or omissions on his part?

Um, he did corroborate Lily's version.

He, um, one of the things I may have left out was that, um, when, after Lily was punched, Lily then responded by, um, and LB is all of 90 pounds.

Um, really, she is a tiny, tiny woman.

Um, Lily is not, not so tiny.

And Lily took LB and threw her on the hood of one of the vehicles and then proceeded to choke and punch and scratch, um, LB before LB was able to wiggle herself away and run away.

So Victor, when interviewed, agrees with all of that and indicates that he had to pull Lily off of LB.

So the charges are, I know you mentioned them earlier, but there's, uh, injury.

So the injury to property, which we call vandalism in California is with the domestic violence enhancements, right?

For one of, there's two injury to property charges.

There's an enhancement to one of the charges.

And that has to do with the damage to property to Victor because of their intimate relationship.

Okay.

And what was Victor's specific property?

The two vehicles.

Okay.

And then there's another injury to property to Lily, right?

Right.

What was, what was vandalized of Lily's?

They added that charge because Lily uses one of the two vehicles, but it was never clear.

And there was nothing discovered indicating she had any ownership interest in the vehicles.

So.

It's 50, 50.

Half the windows are, are Victor's half the windows are little, are Lily.

So.

I like it.

I don't know.

I mean, the damage to property was for the vehicles and they just, you know, split the

baby between the two cars, I guess.

Okay.

And then the assault and battery with no DV enhancements was for the punch to the face to

Lily.

Right.

Let's talk about when you get the case and you meet your client.

Tell us about that.

This was obviously pre COVID.

So we were still doing in person, um, pre trials and whatnot.

But so the first time I met her was at the pre trial conference and she was very, uh,

hesitant to just even talk to me.

And she came with a, a woman who, um, is very supportive of, of her and kind of a support

system in her life.

She doesn't have a lot of, um, support.

And so I spent a lot of time pre trial, just trying to build a relationship with my client

and getting her to trust me because she wouldn't even, she wouldn't even really speak to me.

I could tell from the beginning that she had a lot of trauma in her life and, um, that impacted

her ability to open up to me and trust that I was going to do what I said I was going to

do, which is represent her and protect her and fight for her.

So many, many, many meetings, uh, between she and I to just build that relationship.

But finally she relented.

Any questions on you?

No, I actually had one question, but it's goes back to, um, just the facts.

Did, did, did LB know that Victor was having a relationship with Lily when she went to her

house or did she know of her, you know, being involved with Victor?

Yeah.

So Victor, as I, as I said, has about 13 or 14 kids with eight or nine women.

And it's pretty, my understanding is it's pretty well known to all the women that all the other

women exist.

He doesn't try to hide it.

He openly kind of bounces from woman to woman.

And, um, the women also take care of each other's kids when needed.

And so, yes, it was, it's a weird situation.

And, um, so yes, LB was very much aware of Lily.

There's been a lot of conflict over the last 11 years.

And Lily is in turn, very aware of LB, not happy about it.

When you met with LB, did she eventually tell you what happened or did you develop a defense

strategy before you actually were going to trial, like an investigation?

What was like your pretrial workup?

So I did spend a lot of time talking to LB, mostly gathering, um, mitigation because she

fully admitted to breaking out the windows.

She admitted it to me.

She admitted it to the police.

Um, she was recorded on, on body camera, admitting it.

And so I was fully prepared to, um, put together kind of a mitigation sentencing argument if

necessary.

And so I spent a lot of time just learning about her life and all of the trauma that she

had experienced.

Um, she didn't necessarily ever talk to me about the assault and battery charges.

She did indicate that, yes, they'd gotten into an altercation, but she would never go into

detail with me about how that all came about.

So I, I was flying a little bit blind, um, in that regard.

And, um, just hoped that I could gather some facts or things would go my way.

So I could, um, set up a self-defense.

And what's that, what kind of exposure is your client looking at for this incident?

So on each charge, it's up to a year in jail and, or $2,650 fine or a combination thereof.

So conceivably, um, I would say her exposure is up to three years because the battery would

be usurped or the assault would be, um, usurped by the battery.

LB was unwilling to take a deal.

She wasn't going to plead to anything.

She wasn't going to take anything.

She was tired of the, and I, I think her, where she was coming from is she was so tired

of the abuse, um, suffered at Vic, by the hands of Victor over the course of her entire

relationship with him.

And he was non-existent in their lives and didn't support the kids and was delinquent

on child support.

And she was just pissed.

And, and he made it very clear.

She was not pleading guilty to anything and she did not care what happened.

And she was ready to accept her fate.

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Wow.

Okay.

Um, all right.

So then let's talk about it.

We're just gonna, let's just go for it.

What do you got to lose?

Right?

Right.

That was basically the mindset.

I mean, the morning of trial.

Oh, so let me back up.

Um, so Victor did not come for the case solely involving him.

And when that case was dismissed about a week or two prior to my case, I really felt like my case would be dismissed for lack of witness.

So at the readiness conference, when the city announced ready, I was a little shocked, surprised.

So I said, okay.

And it was after the readiness conference that I then received an email from the prosecutor indicating that he had had a conversation with Lily and Lily was going to be submitting some documentation and was requesting 45, $4,700 in restitution for her emergency room bill.

And she was claiming that, uh, the bill would not be paid by her insurance company because she was the victim of a crime.

So I knew she was coming.

And I asked for that documentation to be provided to me before the trial, because I thought maybe it could contain some inculpatory or exculpatory information.

And the prosecutor said he would quote, do his best.

And I did not receive it until the morning of trial.

Oh, it's a shame that his best took so long.

Wow.

I mean, if that's his best, then maybe, maybe they're not really good at their job.

Well, we can't ask for more than just his best.

All right.

So then you show up for jury trial.

And, uh, do you want to talk?

Is there anything of significance with the judge you go in front of?

So this judge is, um, she can be challenging because she, she likes to call herself like the bubble gum judge.

She's super syrupy and sweet and it's, it's kind of nauseating.

Um, she, it comes off as she thinks she's coming off as being very ingratiating and whatnot, but really it's very condescending and.

It loses its flavor.

What was it?

What were those, those little yellow gum things?

Like as a kid, they literally lost their flavor after the second chew.

Yeah.

It's great.

Yeah.

It's great for like, you know, a couple of chews.

Oh, this is great.

And then the reverse sour patch.

It starts off sweet.

And then you just want to like grow up.

So, um, it's really, it's very patronizing and it gets very old very quickly.

So I wasn't terribly excited, but I can deal with it.

That's right.

That's right.

All right.

Uh, before jury selection though happens, do you have some pretrial motions?

So, um, I usually the prosecution in my courthouse, um, very rarely has pretrial motions.

And I was, I was prepared for this.

So I actually brought down the, the case file of the case that had been dismissed because I had a feeling that they might want to pull some shenanigans.

So the prosecutor says he has a motion in lemonade to bring in evidence of the events of the night proceeding, um, under the doctrine of race just die.

Which is what?

Which is what?

What's race just die?

Well, they, they use it as, uh, you know, a continuum of events that helps contextualize the conduct of the case before the judge that day.

And, um, I mean, that's kind of how they use it.

Okay.

So they, so they want to bring in evidence of the previous night.

Right.

I object and, and I, you know, the, obviously the judge has no idea that there was a second case that was ultimately dismissed and that it was kind of tied to this case.

So, um, I'm explaining to the court that there was allegations of, you know, property damage the night before to the same vehicles and the windows were smashed out on at least one car and how that's so overly prejudicial and not probative.

And it was the same cop who responded on both cases.

So that also, um, was an interesting fact.

So, you know, we, we had some argument about it.

It wasn't very, um, it didn't take a lot of convincing for the judge to exclude that information.

So that was excluded.

Oh, nice.

Nice win.

So at this point, you're about to go to trial.

Just curious.

Do you have a defense yet or is it still in progress?

Well, I thought if I could maybe get the self-defense instruction regarding the assault and battery and at least win those two charges that I would be doing what I set out to do.

I was not, I was not feeling great that morning.

I, I was, I was not feeling great about the injury to property charges and I was not feeling, um, great about overall success.

I can't understand why, but okay.

Sounds like a slam dunk winner to me.

But sometimes as often happens, you just never know how a trial is going to develop.

And so, so I thought, you know, there's, there's, there really was nothing to lose.

So let's go for it.

Very true.

Very true.

All right.

It's time to pick that jury then.

Tell us about voir dire.

During the court's voir dire there.

She asked, you know, had anybody been a victim of a crime and like half the panel raises their hand.

And then one by one, she goes through them.

And for every person, she asks them to detail what the crime was that they were the victim of.

And she then proceeds to give a public apology from the bench about how sorry she is that that happened to them.

And then she follows it up with each person and says, so they catch the bad guy.

Did you catch the bad guy?

Oh, no.

I'm like, are you serious?

It is common for, I mean, that's a standard question to ask anybody in a criminal case if they've been a victim.

And then the question or the follow up usually is, okay, can you put that aside and realize that's a different case.

And this is something totally different.

That's the follow up question.

But in your case, she said, did they catch the bad guy?

Right.

And I'm just like, oh, my God, why do we have to do this?

And so this is said, like, you know, six times.

Did they catch the bad guy?

Are you kidding me?

Did they catch the bad guy?

No.

It's so.

It sounds like you have to have a pretrial motion to exclude the judge from referring to defendants that have a right of, you know, to be innocent until proven guilty,

to be not referred to as the bad guy.

Right.

Sure.

Any particular jurors stand out during Vaudeer?

So we had one guy who just in the middle of everything, it was non-responsive to what was going on at the moment, raised his hand and said that he had, he was babysitting his dog and he had brought his dog to court and his dog had been in the car

for three hours in the parking lot with the windows closed.

And I, we all, that's kind of what we all said is, okay, that doesn't make any sense.

And I really think he just was trying to think of something to get off the jury.

And we all, I was very concerned, I audibly kind of guffawed, I was very concerned about the dog.

And you should be.

I feel like people in Colorado, I mean, I know we have a lot of pet lovers.

I think, Anya, you're a dog.

Do you have dogs, Anya?

Oh, I had one.

He passed away a few years ago, but love, love dogs.

I feel like people in Colorado love dogs even more than Californians.

They do.

It just seems like it's a nature loving, animal loving state.

So did anybody break to tell them to go roll down the windows at least?

We released him.

We released him to go deal with his animal issue.

Can we just all agree to call him the bad guy in this?

So tell us about the jurors that you ended up with.

So I, I didn't know how I felt about them.

My voir dire, I do, I kind of do a very basic teachable moment because I find that most jurors don't understand the presumption of innocence and the burden of proof.

So I just do this whole thing where I, I tell them that they are being accused, you know, I often find a juror that has something that I can identify a bag, a scarf, a hat, piece of jewelry.

And I tell them that, you know, such and such item was sitting on counsel's table when they were led into the courtroom and I saw them take it and they are now accused of theft and they're on the other end of my finger.

And what are they going to do to prove their innocence?

And I have the whole panel kind of collectively brainstorm about what kind of evidence they're going to bring to court to prove their innocence, whether it's testimonial or video or a receipt or whatever.

And after we do that brainstorming exercise, I say, surprise, you know, you don't have to do that.

Isn't that crazy?

So I find it to be very effective and they are able to then wrap their head around this idea that my client has done nothing wrong.

And that's the, that's where we start.

So I had to educate a couple of the people that ended up being on the jury and I didn't know.

It was a very mixed jury.

I had, you know, a young black woman, kind of an older white woman who I did a lot of educating with.

Um, I had a, a older white man who was a retired comedian, David, you probably can relate to that.

Who retires from comedy, but good for him.

Yeah.

So the, the group was, you know, I, I felt like out of what I had available, they were, they were a good group.

They were willing to listen.

They seem to understand my explanation of the, the, you know, burden of proof and presumption of innocence.

So I said, let's just, let's go for it.

So then, uh, all right.

So let's talk about the, the opening statements.

How did, how did opening statements go?

I think we broke for lunch after we picked the jury and something funny happened when we came back prior to openings.

Um, so we come back down to the courtroom and, uh, we're, we're just kind of standing there and the prosecutor, um, is holding this evidence bag and it just is destroyed.

I mean, it is like crumpled up.

It looks like it's been run over, set on fire.

The tape is torn.

And I'm just looking at him and I said, what is that?

He's like, Oh, you know, it's, it's the keys.

And I was like, what?

What's the demeanor of the prosecutor when he's holding his evidence bag?

Does he seem cocky or like this particular prosecutor?

And I do like this young man.

He's very nice.

And he probably shouldn't be a prosecutor.

Um, he's just kind of like a wet blanket.

He just is like, goofy.

Like, he's just, I don't know that he really cares about his job.

I don't, he did.

He's not invested in it particularly.

So he's just kind of shrugging his shoulders.

And, you know, it's, it's the keys.

It's the evidence bag.

I'm like, can I see?

I said, where has that been?

And he said, uh, my office.

And I said, um, like where in your office though?

Cause that seems like not a good place.

I mean, I don't know.

I said, where in your office?

And he said, Oh, my file.

And I said, the evidence bag has been in your file since when?

And he said, um, October of 2020.

Is it first?

Okay.

I'm sorry.

I'm just sitting here making like expressions on my face because as far as I know, evidence

is usually kept by the police or law enforcement in like an evidence room or an evidence locker.

Like, well, you should say that on you because that's exactly what I said.

I said, isn't that supposed to be in property?

Isn't that supposed to be the, you know, purview of the police department for, you know, chain of custody purposes, maybe?

And again, he just kind of shrugged his shoulders.

And so I said, well, may I, may I, what's in it?

So he then proceeds to pull out a secondary clear plastic bag and it has the keys in it.

But that bag is also ripped open.

Apparently, he has an out office with like a retractable roof that's open to the elements and just leaves, you know, valuable evidence lying on top of, you know, ready for the lightning strikes.

I mean, it just, it was, it was, it was really unbelievable.

And so I asked him if I could look at what he had.

So he hands me the envelope.

And like I said, the evidence tape is, is shredded.

It's ripped open.

The bag with the keys is ripped open.

And so in discovery, they had produced to me photographs of the key chain, the key set that had been taken on the night of the incident.

So I take the physical keys in the clear plastic bag and start comparing it to the photograph that I had.

And I immediately recognize that there are items on the key chain that are missing.

And I don't know how that would happen considering the, the procedures in place to make sure it isn't tampered with.

But I immediately identify that there are items missing off of the key chain.

And I turned to the prosecutor and I say, well, not only do you not have chain of custody, but clearly this has been tampered with, and it is not in the condition that it was in on the night of the incident when they were recovered.

And nobody can testify to that.

And he just shoved his shoulders.

I bet you when your client got arrested and they were taking the keys for evidence, she's like, oh, I need that one key to get into my house.

Oh, you need the little mace canister that was previously missing, um, that was in the photographs, the little mace canister, you know, so she could strike again, maybe.

But, uh, that was one of the things that was missing.

And there was like, uh, there was all sorts of things missing, but.

So did you, did you go to the judge for this or did you like, did you ask to have excluded?

Of course.

I, I said, judge, we, I have a pretrial matter that I need to address.

And I went on this whole explanation about the events that had just occurred.

And, you know, there's no chain of custody and I'm going on and on and on.

And then she kind of leans over the bench and she says, I'm very familiar with how chain of custody works.

And I was like, I don't know.

Okay.

So she, she excluded that and was not going to allow them to introduce the keys.

So what happened next in trial then?

So, yes.

Then we do our openings and, um, I kept mine pretty broad, just again, reminding them of the presumption of innocence and the burden of proof and whose job it is.

And, um, the prosecutor just, you know, went down his list of check marks and, you know, my client bust out the windows and punched Lily.

And here we are.

And she's guilty.

So pretty, pretty short and basic.

At this time, I'd like to thank and acknowledge our newest members to the A&G Patreon program, Joshua M and Grant Cole for their support to the cause.

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Thank you.

Right on.

And, um, so before we get to the evidence, then how, how's your client been since the beginning of trial?

Cause you know, she said she was pretty timid and doesn't open up to you.

How's your relationship at this time?

Well, the, that morning before we started, um, she broke down into, uh, she just, she lost it.

She lost it.

She was crying hysterically.

She was, she just kept repeating.

I'm ready.

I'm ready for this to be over.

I'm done with this.

And once we had that kind of cathartic release of emotions, she just, she just, I think was rolling with the punches and just by that time we had established a good relationship and just, she just, um, had all the faith in me.

So she, she wasn't kind of non-reactive.

You said that she was sitting behind you.

Is that like a new COVID thing or is that just how they do it in Colorado?

No, it's a COVID, um, social distancing measure.

So in response to the required spacing between people that we have to have, um, we now use headsets between the court, the prosecutor, myself, my client is wearing a headset for bench conferences and whatnot, since we don't approach the bench anymore.

So I, I don't, you know, she's sitting in a chair behind me.

Um, but we can communicate via the headsets.

Oh, so everybody can, everybody talks to the jurors with their normal, uh, voices, but if there's gonna be some sort of legal issue, then everyone can just get on their headsets real quick and talk to each other.

So the jurors don't hear.

Yeah.

So we've kind of, my court has stopped and started jury trials through the pandemic.

Um, so we, my office bought into these headsets and, and encourage the court in the, um, city to also buy into these, this technology.

So everybody's on board now and we're all using it.

And I actually really like it.

It's pretty cool.

I know that's pretty, it's like, so you're kind of like the, the head coach on a, on the football team, you know, kind of, you know, kind of puts up their signs.

So the jurors can't see their lips and everyone's just like arguing with each other.

Kind of, I do tend to turn my body and kind of hide my face with my shoulder.

But does the jury get, um, asked to leave the courtroom while you guys are headset talking with each other and the judge, or do they just sit there and have to like earmuffs and I don't know.

So we have, um, we also had the court also installed white noise buttons.

So on the judge's bench, they just press a button and we have a microphone, like a speakers throughout the courtroom that puts out white noise to muffle the conversation and, or muffle their ability to hear the conversation.

And the headsets are so sensitive that you can literally whisper into them and hear very clearly.

So it actually, it, it works quite well.

That seems like a very interesting experience as a juror to be sitting there and then just, oh, that's the, is that what it is?

Right.

The white noise.

Yeah, it gives me a headache.

Actually.

That is exactly what it is.

I think that we should, they should like do more.

I mean, if the, the white noise is coming down from the, the ceiling, maybe like fog can come up from the ground so that they can't see what you're saying and reading lips.

Have all these like strobe lights, totally just special effects on council table.

Push a button when it's your turn to do the closing.

I love it.

I love it.

Yeah.

Colorado is ahead of the game.

Talk about.

Oh man.

Wow.

All right.

So now it's time.

I think you mentioned open state opening statements already.

So now it's time to get on with the evidence.

How does it go for the prosecution?

So they, um, they call Lily to the stand and I, I was very excited to meet Lily.

Um, because, and as I said, we don't have the luxury of, um, getting a sense of how a person will be on the stand.

Cause we don't do prelims and depositions and stuff.

Well, the only indication I had of how Lily might be was the 9-1-1 tape that I had listened to.

And I knew Lily was going to be a little fighter because when she called the police on the 9-1-1 tape, she was fighting with the 9-1-1 operator.

She was cursing.

She was yelling.

She was very upset that they weren't, they weren't responding to her in the way that she wanted them to.

Um, they were merely asking for an address and she was full of attitude and just disagreeable.

So I knew that Lily was going to be a little fun.

And then Lily, when called to the stand, started, uh, fighting with the judge because they asked her, we have plexi, clear plexiglass around the witness stand.

And so we asked the witnesses to remove their masks and then they are provided with a clear mask by the court that is clean and sanitized.

And the clear mask has a double strap on it.

And it's a little difficult to put on.

Well, Lily didn't like the mask.

Lily couldn't figure out how to put it on.

And she was rolling her eyes at the judge and she was slamming her hands on the witness stand.

And I already.

Is this in front of the jury?

Uh, yeah.

Wow.

So before she can even testify or swear to take a no, she's having issues.

Right.

She's ready to follow the rules.

And, and yeah, she, she was already demonstrating an inability to follow rules and that continued.

All right.

So what happens next?

So prosecution goes through, you know, their case and, and just tries to make it sound simple.

And, you know, the prosecution's theme in their opening was there were three people, uh, who were acting like children during the evening of July 19th.

But LB was the most childish of them all.

That was his theme.

Okay.

So he kind of, um, just runs through the police report with Lily and, you know, doesn't ask her to expand on anything or detail anything.

It's just LP, LB, LB came to your property, got in an argument with Victor.

You asked her to leave.

LB goes and breaks her windows and then punches you in the face.

Yes.

It's just a regurgitation of the police report.

Is he kind of like leading her, but not like in their foundational leading way, their cheating way?

No.

I mean.

At some point in the night, did her face, uh, did her fist connect with your face?

Yes.

Okay.

Tell us about that.

Okay.

Well.

I don't recall him leading.

I just was, you know, and what happened next and what happened next and what was her demeanor and what was your demeanor.

And Lily, you know, said that she was very, Lily described herself as being very polite, very, um, respectful and just simply asked LB to get off her property.

I would be like, and that's the same demeanor as you've been showing us today in court, right?

You're respectful and polite.

That's just, that's you.

That's who you are, Lily, right?

Yeah.

Just being a member of the community.

Yeah.

And actually I think the prosecutor did, did ask her, what was your demeanor?

Like, you know, were you yelling?

What, what did your voice sound like?

And she said, just like it does right now.

Oh, that's good.

I like it.

All right.

So how'd your cross go then?

Tell us about it.

So, and Lily and I, to that point, even just during the, um, direct examination, we were not, she, we were not friends.

She didn't like me because I had to object several times, um, just over, I don't remember what the specific objections were, maybe leading or, or relevance or something.

But Lily didn't like to stop talking when an objection was raised, but they keep talking and explain what she wanted to talk about.

So at least three or four times I had to turn to Lily and tell her that she needed to stop talking.

Um, and then I had to ask the judge to instruct her to stop talking when an objection was raised.

And so already Lily didn't like me too much.

And she was kind of giving me the side eye.

Okay, good, good.

But, but you kind of like that, don't you?

I do like that because I like to fight with people.

Well, clearly Lily does too.

Was she given some to to the judge or also, or just you guys?

Well, yeah.

And so when the judge would tell her that she had to stop talking, Lily didn't like, didn't accept that answer either.

And would turn to the judge and say, well, I, you know, I was just finishing my sentence or I was just telling my story.

And so Lily doesn't like, um, doesn't like, she has authority issues.

All right.

Okay.

So go ahead.

Tell us about your cross-examination then.

So while trial was going on, um, some of the new attorneys in my office had come down to the courtroom to watch me.

And I was a little nervous about them watching me because one of the things that we teach new attorneys all the time is do not ask open-ended questions.

I mean, that's just a, you know, a, a standard practice of a, of a defense lawyer.

You don't want to do that.

But I did have a line of open-ended questions that I needed to ask Lily, um, because I just needed to find something that she would give me a particular answer to that I could run with.

And, and this is me developing my defense as we are in the midst of trial.

So I have these new attorneys watching me and I'm like, Oh God, we just did this whole training about, you know, how to do a cross and, and I'm breaking every rule, but, um, I did it anyway.

So I just, I asked Lily to tell me, you know, where LB got the rock from and she gives me exactly what I want.

And she says, well, I don't know.

And I said, well, okay.

Was it by the front porch?

Was it, was it by the driveway?

Was it, you know, where was it?

I don't know.

Well, what hand was she holding it in?

I don't know.

So she doesn't know all of these things.

She doesn't know really anything in particular about how LB was able to get the rock and go to the cars and smash out the windows.

So I get her on that line of questioning.

Um, and I start demonstrating that, you know, what a farce her testimony has been and that she, um, I, I also go on a line of questioning with her about her relationship with Victor.

Oh, um, not, I'm sorry.

I go on a line of questioning about Lily's relationship with Victor and how they've been together for 31 years and have an adult child.

And in the last 11 years, uh, LB's come into the picture and has three children with Victor and Victor has multiple other children with multiple other women.

And LB or, um, Lily says, I don't know anything about that.

And I said, you don't know about the, the, you know, 11 other children that Victor has, and you've been with him for 31 years.

I don't know anything about that.

So this is good.

I'm not, I'm, I'm able to demonstrate.

She's getting angry with me and she's getting argumentative and it's great.

You know, that, that's how you make a relationship like that last though.

Right.

Right.

You got to not know about it.

That's it.

You want to know the secrets of their long lasting relationship.

I was none too pleased with that line of questioning.

So a couple months after they charged my client, but, but very close to the start of my trial, I was discovered an email that, um, Lily wrote to the prosecutors.

And in that email, it was about five sentences.

And it's, it said, um, after I was punched by LB, I then, um, threw her on the hood of the car and strangled her and punched her and scratched her.

And I wanted to kill her.

That's how mad I was.

I like that.

That's a good fact for you.

I like that.

One of the better things that happened in my case.

So I pull out the email and I then proceed to ask her about, you know, this statement that she made and, and she goes along with it.

She says, yeah, I did all of those things.

And I, I did want to kill her.

And in fact, I was trying to kill her.

Nice.

Was our lawyer appointed for her at that moment?

There wasn't.

Nobody's attempted murder.

Be bothered by that.

Go ahead, go ahead on you.

Oh, I was just to say, I mean, when somebody admits to wanting to kill somebody that they sound like a bad guy.

But who am I?

I mean, we know that the bad guy is sitting right behind you.

So, you know, who am I to, to make such comments?

Go on.

Details.

So, yeah, it was not a good moment for the prosecutor.

It was not a good moment for Lily.

So, was there a rock in the cruddy bag of evidence?

Was there ever?

Unfortunately.

Was that booked into evidence and put in the shit bag?

No rock.

No rock, interestingly enough, was ever recovered.

And there was no rock in an evidence bag.

Okay.

So then what happens next?

I forgot to mention that during the prosecutor's direct of Lily, he did attempt to introduce photographs and was successful in introducing one photograph of Lily's lip injury.

And that was it.

There were five other photographs of the damage to the vehicles that we had a huge argument about when the cop got on the stand, but he tried to introduce them through Lily.

I was able to kind of bully him into not being able to do that only because when Lily was shown one of the pictures of the car, for identification purposes only, she indicated that that damage was from the night before.

Oh.

And obviously the judge had already ruled that any evidence of what had happened the night before was excludable.

So I kind of took the prosecutor aside and I said, you can't introduce that photograph, buddy.

And he said, why?

And I said, because it's from the night before.

And he said, oh, man.

Somebody would have told me that.

Aw, shucks.

Aw.

Man.

Bummer.

So I was able to bully him out of like, not going down that path with Lily, but it became an issue with the cop.

So who testified next for the prosecution?

Next pertinent piece of evidence.

So then the only other witness was the police officer who had responded on the 19th, but also on the 18th for the information that was excluded in my trial.

And the prosecutor tried to introduce the photographs of the car damage through the police officer, as well as body worn camera when he arrived on the scene.

And the prosecutor only wanted to play the video, but not the audio of the body worn camera that showed him kind of walking around the vehicles and showed the damage to the vehicles.

And I believe the prosecutor brought up his intent to introduce these things before the officer started testifying.

Or it was like shortly after he started testifying.

And I objected.

And the jury is removed from the courtroom because the judge had a feeling this was going to be more than a headphone set type bench conference.

The white noise wasn't sufficient, huh?

Wasn't going to cut it.

So jury goes out and I proceed.

We end up, I think we had an hour plus argument about this.

So the cop is still on the stand.

And I'm reminding the court that they had ruled that information from the preceding night was excludable.

And it was 404 B prior bad act evidence.

And I reminded the court of their ruling that, you know, the city had two options.

They could have joined the cases, which they didn't do.

They could have filed a motion to bring in the prior bad act evidence, which they didn't do.

And the problem with the introduction of the pictures and the problem with the introduction of the body camera was that it encompassed damage from the night before.

And there was no way to parse out what had occurred on the 19th and what had occurred on the 18th.

That seemed like a really simple idea to me.

I'm wondering, though, had the did the prosecutor try to establish that since it was the same police officer who came out, who saw the damage on night number one, and then he himself could see the damage on night number two and maybe could say, well, this window was not broken, you know, or the night before.

Would they be able to go that way or do they try to go that route?

He did try to go that route.

And I was so happy that I had brought down the other case file with the police report in it, because so as we're having this conversation, the cops on the witness stand and he's like raising his hand and he's like, but can I say something?

Can I say something?

And I said, no, this isn't like group therapy.

We don't just get to, you know, we're not, this isn't a sharing circle.

No, you can't say it.

And the judge is like, actually, what would you like to say, officer?

They're like, Jesus.

Jesus.

So he's, so then the cop proceeds to say that, yes, he did observe the damage from the night before.

And the damage he observed was on one of the windows, the back windows of the car, the glass was not broken out.

And it was bubbles, there was like bubbles in the glass.

But on the second night for my case, when he went, the entire back window was gone.

Other windows were shattered and there was damage to the frame of a second vehicle where the rock had been, you know, like where LB apparently hit the frame of the car and dented the car.

So, yes, he was able to say that the damage was different and could differentiate what had happened on the 18th versus the 19th.

The problem was though, I pulled out the police report from the first incident.

And I said, judge, it's interesting that the officer has indicated that that was what he observed on the 18th.

Because in his report from that night, he said the windows were smashed in.

And he used the word smashed.

I said, there's no mention of a bubble.

There's no mention of the window being intact on the 18th.

His words are smashed out.

So I have a real problem with what the police officer just told you.

In front of the cop.

You told, you said, you impeached the cop and the sidebar.

I love it.

Police report.

I love it.

Do you say, officer, were you lying then or are you lying now?

And he's, he's actually, then he's a little befuddled because he's, you know, he doesn't have his report.

I'm the only one that has the report.

I'm controlling this situation.

And I'm like, so that's not actually what he recorded in his police report.

So then the judge's solution to the issue was she was not going to allow pictures of the cars to be admitted and published.

And she was not going to allow the body camera footage of the damage to the vehicles to be admitted and published.

But she was going to allow the police officer to testify to the damage he observed on the 19th.

And this is why this argument was over an hour long, because I said that doesn't solve the problem.

It's the same problem because there's damage on the 18th.

That's part of what was observed on the 19th.

And if I can't cross examine him about what happened on the 19th versus the 18th, because the court has excluded that evidence, then I can't represent my client effectively.

And I can't I can't cross examine him without opening the door.

So then the judge asked the police officer, well, I'm assuming no photographs were taken on the 18th of the damage to the vehicle so we could actually determine what the difference was.

And the cop says, oh, no, that's incorrect.

I took photographs on the 18th.

And then I just stood up and I said to the judge, well, that may be true, judge, but they did not discover those photographs to me in this case.

And there's this long pause and she does brilliant.

So ultimately, I win that argument and no evidence of damage to the cars is coming in in any shape or form.

It's great.

No corroborating evidence because.

Well, and doesn't she she admits it.

LB admits it, too.

Has that come in yet?

The statement.

So when the prosecutor had preemptively told the court what he would like to introduce, he indicated that there were two clips on the body worn camera of an interview with my client that he would like to introduce.

And I had no argument against that.

So those clips were introduced and published and that those were that was an interview that was conducted when the police officer, after Lily had been carted off to the hospital to go get her stitches, they made their way to the neighboring city of Denver and contacted my client at her apartment with her three children.

And brought her out to the porch and Mirandized her.

And she originally indicated she did not want to answer questions, but just couldn't help herself.

So she she started making spontaneous statements.

And the police officer asked her again, did she want to speak to him?

And she said, yeah, I'll tell you what happened.

And then told him what happened.

And that was played for the jury.

It was played for the jury.

It was played for the jury.

And I did not do a motion on that.

And I didn't object to the admission of that evidence because it was the only other good thing for me in this trial.

And that is my client made a statement that Lily ran up on her and hit her first.

And so she had to whip her ass.

And I knew that that statement alone would get me a self defense instruction.

That was smart.

So I welcome.

In the statement by your client on the body worn video, did she say she popped out all the windows also?

Oh, yeah.

So she when asked about the windows, not only does she say she broke all the windows, she admits to breaking the windows the night before and then says the police officer asks her, you know, why didn't you just call us?

This is what we're here for.

If you're having problems.

And my client says, I just finished the job.

I just, I just finished what I needed to do.

So she 100% admits to breaking out the windows and damaging the vehicles.

So then, so the prosecution rests after the cop.

So the prosecution rests.

So the defense, did you guys put on a case then?

I, we did not.

There was nothing I could gain.

And LB was perfectly content.

All right.

So now, time for closing, closing arguments then, right?

So we actually do jury instructions first, you know, maybe the city would best be served by having the bailiff and or the court reporter being the prosecutor sometimes because they already included the self defense instruction.

I'm just having heard the testimony without me having asked for it.

And I turned to the prosecutor and I said, are you objecting to my request?

And he said, yes.

And I said, why can't you just do the right thing for once?

Like, what is the problem?

So they get the jury instructions together.

The court asks the prosecutor whether he has any objections.

And he says, yes, I have an objection to the self defense instruction.

And I didn't, I don't think I even had to make any argument.

I think the judge said, sir, you played and introduced evidence that, you know, your witness attacked the defendant first and she responded accordingly.

Do you disagree with that?

And he said, no.

And she said, okay, then she gets the self defense instruction.

So we got the instructions together and bring the jury out for closing.

Okay, okay.

Back to your closing, back to closing arguments.

Now go ahead.

So the prosecutor gets up and he says, I know you're wondering where Victor is, but don't pay attention to where Victor is.

And don't pay attention to all of the other things that I didn't talk to you about.

Just pay attention to the other things that I submitted and find her guilty.

So you got to rebut this, this argument.

Okay.

Tell us about your closing argument.

So I stand up and I love to use my space.

And even though we're really not supposed to walk around and move around a lot, I take advantage of the room.

So I'm kind of pacing back and forth in front of the jury.

And I said, where's Victor?

He just said, ignore the fact that Victor is not here.

I said, where's Victor?

You should absolutely consider the fact that Victor is not here.

And I knew that I was moving in a positive direction when I looked at the young black juror, female juror, sitting in the second row, and she had her arms crossed in front of her chest.

And she started nodding her head up and down.

And I said, you know, that's one of many questions you should be asking yourself is where's Victor?

And there's another person nodding their head.

I like it.

And they all just started nodding.

And I was like, hey.

I just was really passionate in my argument.

And they were all nodding with me.

And I didn't know what was going on.

So I felt really good about my closing.

My colleagues were watching it online.

They said it was very good.

And I ended my closing.

And they got the case to go deliberate.

And off they went.

How long did they deliberate for?

And so they were out, you know, maybe an hour.

And it's always in these times a little different because the jury, they don't use the jury room anymore.

They use the entire courtroom and we leave the courtroom for deliberations.

So they're already seated when we come down for a verdict.

And normally when you would be looking to see if they're making eye contact with you or laughing or whatever jurors do when they're coming out of the jury room, we don't have that anymore.

They're already seated.

They've been seated.

And they're just stone faced.

And I'm like, oh, God, this is not good.

So we take the verdict.

And the comedian was the four person.

Nice.

All right.

And then the judge just starts reading off, not guilty, not guilty, not guilty, not guilty.

Oh, that's amazing.

How did your client react?

She did not know what was going on.

Wow.

She really didn't.

I turned around.

My eyes were bugging out of my head.

I have it in my mask on.

I'm lipping words to her.

She obviously can't see me.

I keep forgetting that I have to wear a mask.

We get the verdict.

The jury is excused.

We, we seal the case and do all the administrative stuff.

And I turned to my client and I bring her into the ante room.

And she says, yay.

Like, like, like that?

Like, yeah.

Like, yeah.

The question?

Yay.

Yay.

And I said, yeah, abso-fucking-lutely.

I said, I don't know what just happened, but you're going home tonight.

So.

Did you really say abso-fucking-lutely?

Did.

I love it.

That's so Anne.

That's so Anne.

Did, uh, did the client, was she happy after you did your closing argument?

Did she feel like really pumped up?

Yeah.

I think she, um, she made a comment to me.

She said something like, oh, you're a lot better than I thought.

Yeah.

Yeah.

I've heard, I've heard that one.

Yeah.

Sounds about right.

Yeah.

It always makes you feel good.

And then, uh, so, so you had to exchange with the client.

Did you guys just say goodbye and go separate ways?

Any follow up?

I think it was at that time, my client finally understood what had happened.

And she just kept hugging me and, um, was just so thankful and so appreciative.

And she said, I said, remember when we first met and I told you that you're going to have

to trust me and I was going to protect you and I was going to work for you.

And she said, I do remember that.

And she said, thank you.

And then she wandered off into the night and caught the bus and went home to her kids.

Did you do a motion to return the keys from the evidence bag?

I actually am in the process of writing a motion to return.

Not only the keys, but the phone.

Well, good job, Anne.

Yeah.

Awesome job.

That's great.

Awesome job.

That's going to be so much fun or cool.

Just to go into trial and not know what's going to happen.

Cause I feel like, you know, we always try to be as prepared as we can and kind of know

everything and only ask questions that you know the answers to and just try to control.

And sometimes you just got to let go and, and let it happen.

I think in my core in particular, um, we're oftentimes going into trials, not knowing what's

going to happen.

And I can start off in the morning, not feeling very confident in mid trial.

I'm in a much better place than I thought I would ever be.

So it, it often works to our benefit.

It's, it's a scary place to be.

And I think, um, new attorneys in particular, you know, they want to have all the answers

and the information and be as prepared as possible.

And it's not always a reality where I work.

So it does lend itself to a bit of fun.

So, and how you've been a public defender for 16 years, right?

Yeah.

And, uh, you know, I'm going to ask questions that I ask all our guests.

Like why, why did you want to become a public defender?

Well, and I being a long time listener of the podcast, um, have heard this question repeatedly

and I've tried to come up with a good answer.

Um, and what I realized is the reasons that I am a public defender have evolved over the

course of my career.

Um, and I won't, I won't necessarily start at the beginning, but I, as many guests say,

I really dislike abuse of power and authority.

And that's from the bench and that's from the prosecutor's office.

It's from the police and this kind of nonchalant attitude, um, and burden shifting and expectations

that we as defense attorneys and public defenders, um, have to answer for all sorts of things that

prosecutors don't.

Um, I like to be disruptive.

I like to, um, be the annoying gnat in people's ears and just make them work.

And I think in particular on a case like this, where you don't necessarily have a good defense,

my attitude is just like, you want to prosecute this, then it's going to take 12 hours for you

to do it.

And I'm going to make you work and I'm going to make you make evidentiary arguments.

And, and I also feel like my talent in life is being a good communicator.

And I look at myself as being a conduit of information between my clients who aren't always the most

expressive or desirable people that the court wants to hear from or understandable people

in society that I can take their story and tell it in a way that is sympathetic and understandable.

And, um, has value and worth to the people who are in positions of power.

And I, that's my, that's my strength in life.

And this is the best platform for me to use it.

And so this is my calling.

This is what I was meant to do.

Well, I couldn't, couldn't agree with you more, Anne.

And, uh, you know, just want to say thanks for coming on the show today and sharing your

story with us.

And, uh, and thanks for bringing on you back.

Yeah.

I miss you too, David.

I miss you too.

All right.

Well, thank you guys for spending your afternoon with us and we'll, we'll be in touch.

Hope you all enjoyed the episode this week.

Special thanks to Daniel Mark for the music and Mike Grimm for the remix.

Your next A&G episode will air next month on the second Sunday.

Peace.