A Shady Officer & A Gentleman OG – When Self-Defense Beats a Rigged Case

What's up, everybody? Got a pretty badass episode lined up for you this week.

It's a gang murder, self-defense. We have lying witnesses for the prosecution,

and most importantly, lying police officers who hid evidence of the defendant's innocence.

Yep, just another day in the trenches for us public defenders.

Before we start the episode, though, I want to take a moment and thank my A&G team for helping

out with the production, as this episode was edited by Jezreel White. Big shout out to Jezreel

for his help. If you are a fan of the show, I have a few favors to ask. Please support us on social

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to the cause. And lastly, subscribe to us on whatever platform you listen, especially Apple

Podcasts. Go ahead and leave us a review and a rating. Help A&G get discovered. Help us

grow. Help spread the word and truth of our dysfunctional system and the truth about public

defenders and the amazing work they do on a daily basis. With that said, and without further

ado, here's this week's episode of another Not Guilty.

I don't believe your client's innocent. And second of all, I already told you I don't know who Pato is.

So at this point, I was like, all right, fuck this guy. You know, fuck this DA. It's going to feel that much better when I wipe the floor with them.

I went back to the DA because we don't have these resources that the DA does. They have a $2 billion LAPD budget behind them. They've got a gang database, right? They've got DNA databases.

I said, look, who's Pato? Please find out for me. This is a recipient witness. My client is innocent and this witness can potentially prove his innocence. Do you really want to send an innocent man to prison for the rest of his life?

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.

And let's do this. Welcome back, everybody, to another Not Guilty special edition. Why? Because of my special co-host today, my lovely wife, Allison.

No, wait. Fellow badass public defender down in the trenches, grinding it every day.

That's right.

And my lovely wife, Allison. Allison, how are you doing today?

I'm doing great. Thanks for having me. It's good to be back. I'm excited about season five.

Yeah. And, honey, I know we're busy with work, and we have a family now, and you're busy making that go as well.

And I wouldn't ask you to step away unless I didn't have an amazing guest today.

And that's my buddy, Jimmy. Fellow public defender badass. Jimmy, how are you doing today?

Doing well, Dave. It's good to get the band back together.

It's been five years. It's been five seasons since our last episode together. And I think Allison was also a guest host at the time. A lot has happened since then.

Jimmy and I, we've been office mates. We've been court partners. We've been down in the trenches together.

We got hazed together. We were misdemeanor court partners and office mates at Alhambra, where we were baby PDs.

That's right.

We got to the show. We were downtown doing serious felonies together. We've been through a lot.

Yeah, we turned Department 115 around.

We absolutely did. Absolutely.

We kicked out the Wicked Witch of the East. Sent her off packing for early retirement. It was good.

Is that true?

For the story, it's true.

Oh, sorry.

Honey, come on now.

Oh, that's right. You did.

Yeah, that's right.

All right, Jimmy. So Jimmy's here today. He's here to share a not guilty he had recently.

Jimmy, tell me about this case that you're going to share with the A&G family.

Ooh, I don't know where to start. It was a murder case. It was a four-week trial that took me two years to prepare.

When I initially read the arrest report, I had a feeling my client was innocent.

Then when I visited him before the arraignment, I was like, oh, my God, I've got an innocent man on my hands.

So as you know, a murder case is really tough enough.

When you have a client who you know and believe is innocent, that really just raises the stakes.

It makes it that much more personally difficult because you know that you've got an innocent man's life on your hands.

All right. Well, OK, let's drop some knowledge on our A&G listeners.

So the client's charged with murder, and at least in L.A. County, if he's charged with murder, that means he's charged with first-degree and second-degree murder right off the bat, facing 25 years to life.

Correct.

Right? What did the police report say?

I'll tell you the prosecution's case.

My client is, according to the prosecution, a member of a local gang here in East Los Angeles, not too far from where our downtown office was.

He was out gangbanging, saw a rival gang member, got in a fight, and then shot him and ran away from the scene.

Had disappeared for about three weeks.

But due to thorough and good police investigation, they tracked him down.

They arrested him for murder.

And what is it about that that made you think he was innocent?

Well, even within the police report, it indicates that it was the decedent.

The prosecution calls him the victim.

We call him the decedent that had crossed the street, approached our client, asked him what gang he was from, and then when client responded, they got into a fight, and client shot him.

So even just based on the report, I was like, okay, at worst, this is provocation, manslaughter.

We had a defense, right?

Oh, I'm sorry to interrupt.

Is this all taking place out on the street, or they...

Phenomenal question.

This all happened in a McDonald's parking lot.

So there were 24 cameras that caught every single thing.

24 cameras?

Da-da-da-da-da.

What's that?

I'm loving it.

A lot of evidence.

A lot of evidence.

So then, all right, so your client's just in a McDonald's, and then the decedent walks across the street and approaches him.

Yes.

Right?

All right, so that's what the police report says.

You go, the next step is you go meet your client, right?

Tell us about that.

Met him in county jail.

You know, he's...

Spoiler alert, we got a not guilty, so he's home now.

I'd let him know I was going to be doing this podcast, and he was all for it.

He could...

Unfortunately, he couldn't join us.

He's now employed at a fast food restaurant.

Not McDonald's, but, you know, he's trying to get his life back together.

He gave me permission to use his name.

Good for him.

Kenny was in a rival gang from the decedent.

They were sworn enemies.

This rivalry goes back 50, 60 years.

And he had actually denounced the gang.

He had left the gang.

He had moved out of the neighborhood.

He was in an area visiting a friend.

They were at that McDonald's because he wanted to get a happy meal for the friend's daughter and get some food for the friend when the decedent approached him.

That's how it kicked off.

So he's in his own neighborhood or the rival gang's neighborhood, or they share a neighborhood?

They share a neighborhood.

So he's...

Okay, so he's going to McDonald's with his friend to get a happy meal for his daughter.

Is his friend a gang member?

No, I'm glad he asked that.

His friend, who became a key witness in the trial, was handicapped, was physically handicapped.

How they met was the friend was an Uber driver.

And he did Uber and Uber Eats.

How my client and this friend met was the friend used to work at a gas station.

My client's very talkative.

He's like the life of the party.

They struck up a friendship.

So Kenny would pay this witness money to drive him around.

Like, hey, if you're not working today, let me give you 10 bucks.

Let me buy you some food.

Drive me to run some errands.

So the driver, who was physically handicapped, had a partner, a young lady, about 18 years old.

They were dating.

They were both young.

Because the driver was physically handicapped, the girlfriend's job was to actually deliver the food while the driver drove around.

So you had two eyewitnesses, not gang-related, clean as a whistle, who were just trying to make a dollar.

And they drove Kenny to the McDonald's.

They were hit up, and this incident occurred.

And what did you say about actually what happened?

What led to the shooting?

So what Kenny told me was he had gone out of the car while the car was going through drive-thru to smoke a cigarette.

When he was on the street, he saw the decedent approach him.

The decedent smelled of alcohol, which toxicology tests later confirmed.

The decedent appeared to be high, which tests also later confirmed that he was high on meth, lots and lots of meth.

The decedent hit him up, meaning, hey, what gang are you from?

Although Kenny had left the gang and moved out of the neighborhood about five years before, he had to claim the gang.

Because if he did not and his gang found out, he'd be killed by his own gang.

So Kenny said his gang, immediately, the decedent pulled out a gun, they got in a fight, the decedent tried to shoot my client, client punched him, gun dropped on the floor, there's a struggle for the gun, client shot him one time and ran off.

The decedent died from one single bullet wound to the heart.

I mean, I know someone died, but one shot is a great fact, you know, for self-defense.

Absolutely.

And how far, I mean, are they like kind of in combat during the, like when that shot gets fired?

Or are they sort of separated from each other at that point?

They are as close as you and David are right now, Allison.

They were face-to-face.

Client fired once and ran off.

Did he drive off with the people he was with, or did he actually literally just like run blocks and blocks and run around the corner or something like that?

He ran to the car, and I was like, drive, drive.

So at this point, the driver of the vehicle, again, no criminal history, no criminal association, freaks the fuck out like anybody would because he saw the gunfire.

They drive two blocks and the driver kicks my client out of the car like, dude, what did you get me into?

I don't want anything to do with this.

So then after my client got kicked out of the car, he called a friend and took him back home.

So it sounds like your interview with your client, initial interview with your client, it confirms what you originally thought about the case, huh?

Absolutely.

A hundred percent.

And Jimmy, I mean, was your client open to that conversation like right away?

Did he lay it out for you?

Did you sort of have to like gain his trust to get the details?

Or, you know, like, I mean, I know that first meeting, a lot of times we don't even ask, right?

Like, we're just trying to kind of get to know you.

You can trust me.

You know, so how did how did that go?

You know, there's an inherent distrust of the system of public defenders.

Initially, he was completely reluctant to discuss the case.

Like, hey, man, I don't know who you are.

I'm not going to talk about this with you.

After a couple of hours of going back and forth, I was like, look, I have a trump card.

My trump card, as the two of you know, was I had sat in juvenile hall.

I had sat in county jail, also facing charges that were trumped up and bogus, also with a gang allegation, which Kenny was charged with here.

So once I busted that out, which I'm very loathe to do, but sometimes you really need to build that trust and rapport.

He was like, oh, word, Mr. Chu, is that right?

Tell me about it.

So I told him all about it at the end of me telling him my version.

His eye just glistened because we grew up blocks from one another.

Where I grew up in Monterey Park was on the border with East L.A.

So all the gangs that were talked about in the police report, I had heard of as a kid.

We went to the same old stomping grounds, same restaurants, same taquerias.

So, you know, we were able to bond there.

I think just having that sense of empathy and familiarity really helped a lot.

So I left it on that note, like, all right, Kenny, I'll see you next week.

Then when I went back the next week, we got into the nitty gritty.

And from there, we really just started building a case together.

So you met him.

He tells you he lays it out for you.

And how do you start building your defense?

So the first thing I do is I request all of the video from McDonald's, obviously, inside and outside.

I request the 911 calls.

I get rap sheets on the decedent, you know, lots of gun stuff, lots of violence, lots of drugs.

Obviously, I wanted a criminal rap sheet on the two other individuals in the car just to make sure it confirms what Kenny was telling me.

They weren't gang involved.

They weren't criminals.

It was nothing that the prosecution could use against our client.

Both of them were clean as whistles.

And then I started reviewing the surveillance video.

And here was the surveillance video.

It was completely like Kenny told me.

He was across the street smoking a cigarette.

The cedent approaches him.

Unfortunately, they were pretty far away from the camera at this point.

But you can see some sort of verbal and then physical altercation.

You cannot see who took out the gun.

That would make it too easy.

And then, Jimmy, sorry, so did they each have a gun or did the client shoot him with his own gun?

The client shot the decedent with the decedent's own gun.

And client did not have any gun?

Client did not have any gun.

Except the prosecution theory, it was client's gun.

Now, on the video, you said that you could see the decedent walk across the street, right?

Right.

And is there anybody else with him?

Yes.

Who's with him?

Well, at the time, I didn't know.

I was dying to find out.

I asked the prosecutor, look, you've got your surveillance video right there.

You've got your investigators out and received the scene.

Please find out for me who the person with the decedent was.

You're like, well, police didn't identify anybody.

We don't know who it was.

And when did you ask this question of the prosecutor?

Immediately after I reviewed the body cam.

Excuse me.

Immediately after I reviewed the surveillance video.

So I maybe got the surveillance video two weeks after the arraignment.

I watched it the same day.

And I immediately emailed him with my discovery request.

And what made this case really complicated, guys, was it was in the heart of gang territory.

So I sent my investigator out.

Remember, this is at McDonald's.

So you had customers.

You had eyewitnesses.

You had residents.

Nobody wanted to talk.

Nobody, including McDonald's employees.

So what happens next in the development of the defense?

What other investigation or discovery do you do?

So we go out.

So we go out.

We interview witnesses.

We find out that there's a neighbor who I'm not going to name.

She lived in the same apartment complex as the decedent.

She saw the decedent cross the street, approach my client, take out a gun, and try to shoot client, which is all good.

It goes towards self-defense.

She tells our investigator that.

However, magically, two weeks later, she says, you know what?

I actually didn't see anything.

I'm not going to testify.

If you call me to the stand, I'm just going to say I forgot everything.

So our inclination was that the decedent's family had intimidated her because the decedent's family are also gang-related.

And when we get into the trial, you'll hear about the role that his family played in this case.

So the decedent lived across the street then?

Yes, right across from the McDonald's, literally across the street.

He crossed the street from his apartment.

And what about the Uber Eats friend, driver, and the girlfriend?

Did you talk to them?

I did.

They also spoke with the police.

In the report, they said Kenny never had a gun, that they only saw once the fight started,

and that the other guy had a gun, and that Kenny shot in self-defense.

They even told the cops that, and that's in the report.

But the police chose to disregard that because they needed a suspect.

They needed somebody charged for murder.

They never talked to the guys again.

And how did the police catch up with the Uber Eats driver and his girl?

Friend.

From the McDonald's surveillance, they were able to get a license plate.

They ran the license plate through the DMV, found the Uber Eats driver and the girlfriend.

And they were completely honest.

Like, we drove to McDonald's.

I never heard Kenny mention anything.

He wasn't out there gangbanging.

He got out of the car to smoke a cigarette.

Next thing we know, we saw the fight.

We saw the seating with the gun, and he shot him.

Like, so they didn't cover for Kenny.

How the cops originally, eventually caught Kenny three weeks later was,

It was the Uber Eats driver who gave him his full name, his address.

He wasn't covering for him.

And were they questioned as suspects or just witnesses?

Originally, they were questioned as suspects.

And based on their interview, the police drafted a search warrant and an arrest warrant,

wherein they were able to arrest my client.

They searched his phone.

They searched everything.

Based off of that interview.

So they, even in their declaration, they said, this is a completely reliable witness.

Yet, they chose to disregard the part where the witness said, my client acted in self-defense.

He's reliable until he provides a perfect defense for our suspect.

That's exactly it.

But we will leave everything else.

That's exactly it.

That's exactly it.

Of course.

And was that a phone interview or a station interview?

Station interview.

So all interview, all recorded over like four hours.

Can I, what about the ballistics evidence?

There was, did they, was the gun at the scene?

Did he drop, after your client shot him, did he drop the gun or keep the gun?

Here's a bad fact.

He kept the gun and disposed of it, which the police contend was consciousness of guilt.

So when I asked Kenny, dude, why would you take the gun and destroy it?

He was like, look at me, bro.

You think they're going to believe a cholo from East LA?

I was like, I get it.

I know why you did it.

All right.

So then are we ready to talk about the preliminary hearing then?

Let's do it.

Tell us about it.

So there was two investigating officers.

They both testified.

The only witnesses that were called was the decedent's nephew, who's about 14 years old.

And it was a tough case because he was a, he was a young kid.

You know, he, you could tell he was a good boy.

He loved his uncle.

Clearly they lived together in the same apartment, but he lied through his teeth in terms of what

happened.

So impeaching him, obviously it's always a delicate balancing act.

Well, what was the purpose of his testimony for the 14 year old?

What did he prove at the prelim?

He allegedly saw my client yelling at the decedent across the street to go over, taunting him

and then hitting him up, which nobody else, which nobody else saw and nobody heard.

It was just the nephew.

Oh, wow.

And did the nephew say this in the police report?

No.

Oh, did the, was the nephew interviewed in the police report?

He was.

Okay.

What did he say in the police report?

That his uncle was a great uncle who was just minding his own business.

When my client approached him, that was his, that was his, uh, account, uh, his uncle started

getting beaten up by two guys, which was just completely a figment of his imagination.

And then his uncle was shot in cold blood.

That's at the prelim, right?

That was in the arrest report and in the prelim.

Oh, so he does say at the, he does say your client approached and shot.

He said my, it was my client who approached, but he never talked about my client hit him

up and all that other stuff that he added at the prelim.

Okay.

So that was what was added at the prelim was the hit him up part.

Correct.

What does hit him up, hit him up means?

Hey, where are you from?

What neighborhood are you from?

Uh, what set do you claim?

So you said you impeached him at the prelim?

I did.

How did that go?

With the 911 call, you could hear him speaking on that 911 call.

He doesn't mention anything about my client approaching him.

He doesn't mention anything about my client hitting him up.

Uh, it just, he obviously had time to think about his version of facts, right?

And then one thing we haven't discussed is the police brought in the nephew and his mother,

who's the decedent sister to go into the interview room.

The police left for a little bit and you see the mom just feeding the little kid.

That's what you need to tell the cops.

Don't ever reveal the identity of that other guy who was present.

Remember this unnamed friend?

He was like, don't talk about Bato.

That was his name, Bato.

Okay.

Excuse me.

Uh, Pato.

Duck in Spanish.

Like, don't ever talk about Pato.

You know, don't ever tell the police anything.

Did the nephew mention Pato then during this interview?

He did.

What did he say?

The, uh, cops were like, who else was there drinking beers with you guys?

Who else was hanging out?

And he was like, oh, Pato.

And that's when we really just try to stop the nephew and nip it in the butt.

Right?

Like, oh, no, no, no, no.

You know, this is very traumatizing.

Stop asking these kind of questions.

Let's move on.

So I'm hearing this.

I'm like, wait a minute.

Who's Pato?

He's mentioned nowhere in my thousands of pages of discovery.

And Pato will become relevant later as we touched on.

He's the star witness who's from the decedent's own gang that the mom was covering up.

So this is on video?

This is on audio.

And audio from the police station.

At the police station.

I have no idea who Pato is.

That's unbelievable.

Like, I have no idea.

I asked the DA.

He was like, I don't know who Pato is.

I was like, ask your investigating officers.

They're like, we don't know who Pato is.

Which we find out later is bullshit.

Do-do-do-do-do-do.

I'm loving that, too.

Yeah.

Wow.

So, you know, I already knew the mom was covering it up.

I knew the nephew was covering it up.

I didn't know what they knew.

I just didn't.

What happened next in the program?

Then mom, nephew's mom testified, which is decedent's mom.

Excuse me, decedent's sister.

Also impeached her.

But then the driver, the Uber Eats driver, testified.

You know, so I was getting in good information.

He drove my client.

My client, he never even knew my client was in a gang, guys.

They were friends for, I think, about a year.

My client just, he didn't gangbang anymore.

He, at this point, was working at a warehouse, just trying to get his life together.

He was supporting his mom on his minimum wage salary.

They had a one-bedroom.

So the driver had no idea my client was ever involved in any of this.

He really had just gone out of that life.

So I got that out from the driver.

You know, I asked him if he was honest, if he told the police that my client was the one

who was approached.

You know, my client never had a gun.

I asked him how my client reacted after getting into the car, because that was important.

Like, did he seem cool, calm, and collected?

Like, ooh, I just smoked this guy.

Or, guys, oh my God, do you know what just happened?

And my client was in utter fear, you know?

So I got that in.

And then, so you had those three civilian witnesses, and you had the two cops who testified to,

based on my training and expertise, Kenny was in the area of gangbang to further and promote his gang.

You know their whole script.

Right?

And still feel into the neighborhood.

And then, so the DA's theory was, the only reason he would come to the neighborhood was to gangbang.

My theory was, this is where his family is.

This is where he comes to see his family.

And then he was hit up by the decedent.

So our theories were completely contrasting.

And that was essentially the prelim.

Jimmy, did you have the opportunity to ask the nephew or the sister on the stand at the prelim about Pato?

I did.

How did they respond, or how did they handle that?

We never talked about Pato.

So they lied.

Even though I tried to impeach them, they lied.

Yeah, what was the response to the impeachment?

You know, some trial attorneys don't impeach during the prelim because they want to save it for trial and not, you know, let the cat out of the bag, so to speak.

But you were very upfront with your case at the prelim, it seems like.

I had to be, guys, just because a lot of the witnesses I had subpoenaed didn't even come to court.

So I was afraid that the nephew and the mom would become unavailable.

And this was my only crack at them, just because of the nature of the case, I needed to lock in their testimony because I was not confident they would come back to court.

And that was a strategic decision I made.

You're right.

You're right, Dave.

Like, a lot of defense attorneys will save it, but I had to show my cards at that point because I didn't know if they would come back.

And was there anything surprising to you that came out at the prelim?

Yes, there was one thing that was surprising.

And this is my fault because I asked my client if he had any visible gang tattoos.

He was like, no.

And that's what I asked, visible.

So after the police extracted his cell phone, meaning downloaded everything from his cell phone, I'm not sure if your listeners are aware of this, Dave, but everything we've ever done on our cell phone can be downloaded, including Google searches, messages, Instagram posts that we've liked, Facebook posts we've liked, everything.

So they found a picture my client has sent to a young lady.

I think the kids call it dick pics.

They found a genital picture that my client has sent to a young lady, his girlfriend.

Wait, is the PC term a genital picture?

I don't know.

What is it?

What is it?

Does that somehow make it better than a dick pic?

I think it's a dick pic.

Is it a dick pic?

Don't act like you don't know, Jimmy.

Jimmy, I think you're not 60 or 70 or, you know, a young man.

What do the kids call it when you send somebody a picture of your private parts?

In my defense, my young lawyers in the office call me a geriatric millennial, all right?

So I didn't grow up with a cell phone.

But yes, okay, I do know it was a dick pic.

Anyway, we digress, guys.

Come on.

Let's keep it professional, okay?

This will not be edited out, Jimmy.

Choose your words wisely.

Noted.

So in this dick pic, on his thigh, very small, he had the letters TB tattooed on his leg, which were the initials of his gang.

And the prosecution presented that photo to prove up their gang membership enhancement.

So then immediately when I went into lockup, I told Kenny, look, you keep anything from me and things like this happen.

So whether it's good or bad, you've got to tell it to me.

Yeah, you thought this would be bad for your case.

You're absolutely right.

It is.

But I didn't have an opportunity to prepare for it, to explain it away because you omitted it.

He was like, you asked me about visible tattoos.

I was like, come on, man, you know what I mean.

I see not any visible gay tattoos.

I mean, that was really only visible to the recipient of that photo.

Yes, you're right.

Maybe he's a Tom Brady fan.

It could be.

That's what I was thinking.

It could be.

It was not Tom Brady.

It's not TB12.

It is not.

It's TB12 in the box.

That's it.

The jury is.

So that was the prelim.

I think, so it sounds like it went pretty well.

It went about as well as can be expected.

All right.

So then now we're entering the trial phase.

We're getting close to the trial.

So what happens next in the case?

So we're getting close to trial.

Again, I covered the options with Kenny.

Most importantly was, you've got to testify, man.

It's a self-defense case.

You're charismatic.

You're charming.

You're articulate.

But after two years of getting to know you, it's clear that you can also be riled up.

And that's what the DA is going to do.

He's going to do everything he can to rile you up.

So if you choose to testify, we've got to prep for this.

Like we haven't pressed for anything else.

I'm going to ask you all the hard-hitting questions that you don't want to hear.

I'm going to be making accusations towards you.

You've got to keep your cool and answer it just like you've answered with me.

So prepping for trial, calling experts.

We had self-defense expert.

We had gang experts.

We really needed a gang expert, guys, because it's hard to explain to the layperson, a juror,

why somebody who's no longer in a gang would still claim a gang.

Like, because most of us would think, if you're not in a gang, just say you're not.

But what you have to understand is, for a lot of our clients, their fellow gang members are also family members.

It's people you grew up with.

You grew up in the sandbox.

You're going to each other's birthday parties, holiday parties, funerals.

You don't, you can't just say, I'm not from there.

Because if that happens, then you're targeted by your own gang and rival gangs who know you're from it.

So we needed a gang expert to explain that away.

We had a ballistics expert, obviously a video enhancement expert, and then we went to trial.

Who was the gang expert?

Good question.

So Loyola Law School started a new program.

It's called the Gang College, okay?

And this gang college employs former gang members who've been incarcerated, who've done decades,

who've now earned their credentials, some of them B.A.'s, some of them associate's degrees,

while in prison, in Pelican Bay, in San Quentin, who are now out of custody working as social workers,

working as gang experts, to explain this to the jury.

Because prior to using them, I spoke with academics, and some of them were fantastic.

You know, from UCLA, from Cal State, from USC.

But again, these academics read about these things in the books.

Maybe they spoke with a couple gang members.

But to have someone who has this lived experience, who can talk to you about growing up,

the pressures that gang members face, that immigrants face,

and me personally, I saw it too, you know?

You're, if I may digress, Monterey Park, when I grew up, was 40% Asian, 40% Latino, 20% other,

lower middle class, mostly immigrants.

Your family's not around because they're working multiple jobs.

You don't have a sense of belonging, a sense of connection, because you don't know the language,

you don't know the country.

And quite frankly, a lot of times you're the target of bullying, whether it's by other races, or even your own race.

If it's an Asian person, it's for other Asians who have been here longer, they call you a FAB, fresh off the boat.

If it's Latino, they call you a Baisa, essentially a farmer.

If you're new from Central or South America, you know, you're broke.

You have no connection.

So a lot of these kids join a gang for that family, right?

It's kind of like why we have fraternities, sororities, organizations, favorite bands.

We're tribal, guys.

We all want to be a part of something.

So my gang expert had to explain that, why people would join gangs in the first place,

why they would want to get out but not be able to fully get out,

what hitting up means, what happens if you don't respond.

He had to talk about the gang truce at the time.

There were just a lot of things to explain to a lay jury that a gang expert who is an academic would not be able to do.

I mean, it also just goes out to show that, like, the heightened risk.

The decedent is saying words that they're just words to maybe a juror,

but, like, they have certain meanings to it that are attached to it.

So if someone says where you're from, your client has to respond.

And all that means, and it puts them at heightened risk.

He's more at risk.

He's more fragile, I guess, in some ways.

He has a heightened state of mind in terms of his safety, you know, in this moment.

That's exactly it.

Exactly it.

Why he's even more entitled to self-defense?

Because you know where you're from is usually followed by.

So that's a great point, Dave.

I'm glad you brought that up.

It heightened his mandrea, the need for it.

Right, because for self-defense, it has to be – you have to just – your belief that your life is at risk of imminent harm,

of great bodily injury or death, has to be reasonable.

And so what are his reasons for believing his life is in danger?

You need the gang expert to testify why he believes in that moment his life's in danger.

That's exactly it.

All right, so anything else, any other developments in between the prelim and the jury trial?

So I was like, look, Kenny, we know all the witnesses that the prosecution is going to call,

which numbered around 30 prosecution witnesses, police officers, civilian wits.

So I needed character witnesses, right?

My first thought was his mom, who loves him dearly, came to all court dates, who Kenny clearly loved,

but he didn't want her to get involved because she's undocumented.

Despite my assurance, look, they're not going to use this against her.

No one's even going to ask her about her citizenship status.

He was like, I'm not going to put my mom in that,

which was tough for me to swallow as a defense lawyer, but as a son, I understood.

So I said, give me somebody.

Give me somebody who can testify to your good character.

So I wish I was making this up, but it was perfect.

He had a friend, Jose.

They grew up together in East LA, okay?

Jose wound up being a decorated Navy veteran.

He got out of the hood, joined the military, became very decorated, and then moved back to East LA to raise a family.

So Jose came in, testified.

He didn't even know Kenny was in a gang until he was going to be deployed.

Kenny basically, so he told the jury a story of how they were walking to school one day,

got robbed and jumped, and that it was completely normal because they weren't gang affiliated, but there were young Latinos living in that neighborhood.

So Kenny just got tired of getting jumped and bullied and joined a gang, but they were best friends growing up.

Jose, the Navy veteran, never even heard Kenny talking about a gang, didn't know Kenny was in a gang until he was deployed,

because Kenny wasn't a gang-banger.

He was just tired of getting picked on, of being punked.

So that was very helpful.

Jose came in his full uniform.

Yeah, it wasn't his identity.

It wasn't.

It wasn't Kenny's identity.

It wasn't.

Exactly.

It wasn't.

This is what I have to do for protection, but this isn't.

This is for survival.

Who I am.

So Jose really brought that out.

That was good.

That's way better than a mom.

It is.

That's a way better character.

Agreed.

You know, moms, their babies are the best.

They never do anything wrong, so they're a little biased.

Anything else developed in the pre-trials, before trial?

I did maybe 12 different interviews with the driver of the vehicle, the Uber Eats driver,

just to lock down his testimony along with his girlfriend.

And their versions stayed consistent the entire time.

It wasn't Kenny's idea to go to McDonald's.

Kenny wasn't talking about gangbang.

They didn't even know Kenny was in a gang.

Kenny had never had a gun.

When Kenny left the car, he was in high spirits.

When he came back in the car, it seemed like he had seen a ghost, according to the driver.

So those are all good.

The girl, who was even better, I asked her.

I was like, you were in the car.

You saw all this, right?

She's like, yeah.

I said, have the police ever tried to contact you?

No.

The police never tried to contact this eyewitness.

The only reason I found her was because they said there was another girl in the vehicle.

It was the driver who provided me this info.

So when I talked to the girl, I was like, what did you see?

She said, well, I saw the other guy approach Kenny.

The other guy was armed.

And Kenny shot in self-defense.

That was a girl's testimony.

Yet the cops never bothered to talk to her.

Not one time.

This is like, I don't know what, how the prosecution, I'm kind of, you know, we're going to get to trial.

I can't wait to see how the prosecution tries to prove that your client had the gun when you have all these eyewitnesses saying that the decedent had the gun.

Other than, I guess, other than the nephew who's, you got the video to show that the mom is sort of coaching him.

So, okay.

It's crazy.

Okay.

And he's a kid.

He's a kid.

Well, how the prosecution tried to do it, I'll tell you guys now, is at the prelim and at trial, hey, driver, now that you know Kenny was part of a gang, are you scared of him?

Most kids would be like, yeah.

So their argument was, oh, they're lying for Kenny because they're scared of him.

So after the prelim, was there any major developments in the investigation and the defense?

Oh, absolutely.

That was almost like a Perry Mason smoking gun moment.

If I may, let me get into the dynamics a little bit.

All Hispanic street gangs, once they go into county jail and once they go into the state prison system, are under one umbrella.

So essentially, whatever sort of rivalry or differences that you have on the street as rival street gangs, that all dissipates once you're in the prison system, the jail system, because there's one overarching umbrella that controls all these local street gangs.

So while I'm in county jail, there was a member.

There was a member of the decedent street gang who approached my client.

And the reason this matters is at the time, there was a truce on the streets.

No more gang banging, no more shooting at each other.

If any of you guys violate this truce, we're going to come after you.

So that was essentially the directive.

So there was peace on the streets.

So my client, when he first got into county jail, was confronted like, hey, man, we heard that you shot this other rival gang, but we're also getting a lot of information that you acted in self-defense, that you had to do what you had to do.

So we're not going to beat you up.

So we already knew that since the beginning of the case.

So now let's fast forward to post prelim, a member of the decedent's own gang approached my client and said, yo, man, you know, that's my homeboy that you shot.

But I just want you to know I got all the information and you're not at fault.

You had to do what you had to do.

So we're not going to come after you.

I was like, oh, my God.

So people actually know that you were confronted, that you were hit up, that you acted in self-defense.

Who is this guy?

We need to find him.

Right?

He's like, man, no one's going to tell me names.

You know how street code works.

So then me being diligent, I went back to the DA because we don't have these resources that the DA does.

They have police.

They have a $2 billion LAPD budget behind them.

They've got a gang database, right?

They've got DNA databases.

I said, look, who's Papo?

Please find out for me.

This is a percipient witness.

My client is innocent, and this witness can potentially prove his innocence.

Do you really want to send an innocent man to prison for the rest of his life?

Because that's what he's looking at if he's convicted.

He's like, well, first of all, I don't believe your client's innocent.

And second of all, I already told you I don't know who Papo is.

So at this point, I was like, all right, fuck this guy.

Okay?

I, you know, fuck this DA.

It's going to feel that much better when I wipe the floor with him.

So it became personal.

It was kind of like Jordan's last dance.

It became personal.

Does your client, like, call you right away?

Like, because, I mean, your client knows that you're trying to figure out who Pato is at the, like, for the past however long, right?

Right.

So as soon as your client gets approached by this guy, I mean, how does that play out?

He feels like it was Christmas.

That was his word.

Like, I can't believe we just got this break.

Except no one's willing to talk.

No one's willing to testify.

So it was up to me and my investigations team to track down this Pato duck.

But how do you track him down without the DA's cooperation, where they were stonewalling us at every single corner?

The cops aren't going to work for us.

They've already claimed they don't know a Pato.

So my investigator did yeoman's work.

He went door to door, maybe six times in the heart of East L.A.

Just, you've got a dozen gangs within these square miles.

You know, he told me he was threatened on multiple occasions just trying to track down Pato.

So he's leaving business cards with, my name is so-and-so.

I'm a defense investigator with the public defender's office.

And had the person in jail who approached your client known, like, did you have a government name or any other details?

Or was it basically like, oh, that was Pato?

Like, what was the extent of the information that the other guy in jail said?

That his moniker was Pato, and he lived on a certain intersection, but the informant wasn't sure which intersection.

So our investigator really just had to go to every single door and just knock and leave business cards.

Woo-woo, go L.A. County PD investigators.

Team investigations.

Like, our guy went out there armed, because he could have been shot and killed at any time.

And he dug up this needle in a haystack.

So, salute to our investigations team.

Let's talk about jury trial and 8402s, motions to eliminate, motions to exclude evidence.

The big one was I was trying to get in the decedent's prior record.

Guys, get this, okay?

On three separate occasions, this incident happened on Soto and Seja Chavez in East L.A.

On three separate occasions, the decedent, the victim, was pulled over by police on a bicycle with guns right outside his apartment, gangbanging.

So I was like, that's completely relevant.

That's what happened here.

It shows he has this pattern of gangbanging, protecting his neighborhood, and that anybody who he deems an intruder is going to be dealt with.

It's completely probative.

Yeah, it's a little prejudicial.

I get that.

But let's talk about probative value here.

We got to let this in.

So that was my key 402, my motion to eliminate.

The judge excluded it.

Seriously?

Yeah.

Yeah.

All of it.

All of it.

I was baffled.

Let's see.

He possessed a gun.

Let me see.

All right.

So he possessed a gun on three separate occasions in the same neighborhood, same area.

Same intersection.

But he just possessed the gun.

But that's the whole issue.

Who had the gun?

Totally should come in.

Who had the gun, Allison?

Right?

That's the whole issue.

Judge Allison would let that in.

Judge Dave would not.

I feel like if it – well, no.

I'm just trying to lay out the whole thing.

Because if it were reversed, right, let's just say there's evidence that – we're trying to

prove that our client didn't have a gun.

And the DA has evidence that your client did have a gun, at least on another occasion,

which would prove that he had access to guns.

That's what the argument is.

And then that's how that evidence comes in when it's against the defense because it shows

that he had access to a gun.

And this is what you're trying to show in this case.

Correct.

And the judge on this case, though, said no.

So, yeah.

Prosecutor in a robe.

That's it.

I mean, if it was one occurrence, I could understand.

Two, maybe.

But three times with a gun on a bicycle in the same intersection outside his apartment

where this occurred, I thought it was relevant.

So, that was kept out.

And that really just chopped our legs going in.

How recent, Jimmy?

Great question.

I've got it in front of me right now, Judge Allison.

Hold on.

Before I make my final ruling, I just need to know.

One was five years before.

Another incident was one year before where he was convicted of felon in possession of a

firearm in the same intersection.

Another incident was the same year.

So, five years, last year, and this year.

That's 100% coming in in my courtroom.

Mine, too.

But kept out.

What about any other 402s?

You said that was your big one.

That was a big one.

Any other ones or just all kind of?

There was a second one where I wanted to get in the toxicology of the decedent, which showed

high traces of methamphetamine and alcohol.

And then I was going to have a toxicologist testify to the effects that methamphetamine

can have on aggression, hypervigilance, paranoia.

That was kept out.

Why?

Relevance, 352.

Why?

How?

I mean, like, there's no disagreement that they actually get into a fight.

There's, it's really not relevant that the decedent is high on meth.

Relevance, 352.

It's too prejudicial to the decedent.

Come on.

Yeah.

That one is just.

Hold on a second.

Yep.

Prejudicial to the decedent isn't, shouldn't be a part of the analysis, right?

Like, the prejudicial category has to do with the defense.

Like, how do you prejudice the decedent?

That's, oh my God, that's wild.

It's prejudicial and, it's probative and prejudicial.

Yeah.

It's super probative.

It's super relevant.

So you, so you, because you gave a report of your toxicologist, you gave it to the, to

the DA, right?

Right.

And the DA moved to exclude that evidence.

Correct.

As it being too prejudicial that someone has methamphetamine in their system, which makes

them agitated and aggressive.

Which would make, his argument was, it would make the jury unduly biased against the decedent

here.

And that was, that was also excluded.

So you can imagine my balloon, it going into trial, it was very deflated.

And Kenny was smart enough to understand what these rulings would do for our case.

So we went in, not being able to talk about the decedent gangbanging around his neighborhood.

We went in, not being able to talk about the decedent, hopped up on meth, hyper aggressive

and paranoid.

And that's what we went in with.

Wow.

So they're really just handcuffing you here.

That is crazy that, that we can't bring in evidence as to like the, like the surrounding

circumstances.

I mean, that's evidence.

Like having meth in your system is evidence.

It's forensic evidence.

It's tangible, physical evidence.

It's not someone's wit.

No one's testifying to it saying, this is what happened.

It's literal, it's literal evidence that affects you.

There's a psychological, pharmacological, whatever.

Pharmacological effects.

Yeah, it's crazy.

That is, I'm more, see, I'm more, I'm more offended by that than the gun.

Even though I think the gun was a bad ruling, I could see like how they would do it.

That one is just, that one seems, I don't even see how you can get around.

Like, I don't know what world that happens where that is excluded from trial, even with

a prosecutor in a robe.

I agree.

I was stunned.

I, that to say the least, I was extremely stunned.

Well, it's a good thing Kenny has a pelvic defender because we know how to take a hit.

We sure do.

And keep on rolling.

Sometimes that's all you got.

So we went in.

All right.

Anyway, any other 402s of interest?

Those are the key ones.

I mean, I try to keep out my client's purported gang membership from previously.

But, you know, that came in.

I understood.

I wasn't appalled by it.

I tried to bring in the Seed-In's gang membership.

That came in as it should have.

So those were essentially the 402s.

Let's talk about jury selection.

So my ideal jury here would be people who grew up in tougher neighborhoods, who grew up

in neighborhoods where gangs were involved because you need to understand that dynamic.

Even with my gang expert, I didn't trust somebody who wasn't familiar with it.

So I really was looking for lower middle class folks.

I didn't care what ethnicity, just as long as you have that familiarity.

Here, I wanted the socio-economic cultural familiarity.

So that was my ideal jury.

I wanted people who were smart because this is one of those cases where you really have

to...

Circumstantial evidence was huge here.

It's not direct, right, guys?

So you really have to be able to piece together the puzzle pieces, be able to work through

them and follow the different types of argument as it has to do with Mendrea.

It has to do with mental state, as it has to do with self-defense, as it has to do with,

like you mentioned earlier, David, what happens to your spidey senses when you're hit up?

You know something bad is about to happen, which makes our client's conduct that much more

reasonable.

But then because it was going to be such a long trial with gangs, you know, our client was

alleged to be a gang member.

The sedent was admitted gang member.

A lot of jurors were unassembly scared.

Some of them couldn't take it off because of the length of the trial.

This happened in the heart of COVID.

You know, we were still wearing masks.

Everybody was wearing a mask.

So people were still unassembly, still scared.

So there were a lot of issues.

So jury selection was not easy.

OK, so then let's talk about opening statements then.

Tell us about the prosecutors.

A lot of it was just you can't judge the decedent because he was a gang member, because he looks

a certain way.

You know, he was killed in cold blood in front of his own apartment building, in front of

his family, and his family members were in court every single day, which obviously always helps

the prosecution, right?

And, you know, they weren't faking it.

They were obviously very sad.

They were moved.

Tell us about your opening statement.

Kenny is not guilty.

He acted in self-defense the way any of you and I were.

Throughout the case of this trial, you're going to hear evidence.

He grew up here.

He was a gang member.

You're going to hear why he joined, but you're also going to hear he left.

He did everything he was supposed to do.

You're going to hear evidence.

He got a job.

He got his high school diploma.

He started raising himself and his mother.

Went back to the community.

You're going to hear evidence.

He was approached.

You're going to hear he was hit up.

You're going to hear what hitting up means and why that gives even more credence to his

need for self-defense.

You're going to hear from multiple witnesses who have no horse in this race, unlike the prosecution's

witnesses.

At the end of the case, I trust how you're going to find him not guilty.

It was short and sweet.

Then we went into case in chief.

All right.

I like that.

All right.

So let's talk about the case in chief for the prosecution.

How did their evidence roll out?

They brought out the nephew.

That was number one.

He was sympathetic.

You know, he lied through his teeth.

I just had to keep impeaching him.

It almost got old.

I repeat almost every question.

I impeached him with his video, the video recorded interview or his preliminary hearing

transcript or his 911 call.

And after this first witness, I looked at.

This is the nephew that is testifying that he saw that you're that the decedent was standing

there.

And then your client and other people came over, started to fight with him and shot him.

Hit him up, got in a fight and then beat him up.

That was the nephew's testimony.

OK.

So without getting into all the ins and outs, basically he was covering for his uncle.

The final question, and I shit you not, the final question was, I kept on impeaching him.

And you can tell he was about to cry, which made me feel bad.

You have a 14-year-old who obviously missed his uncle.

I eviscerated him.

So finally, I said, so-and-so, you've admitted to lying in the preliminary hearing.

You've admitted to lying from your report.

Are you lying to the jury now?

No matter how he answered, I had a response to that, right?

You know what his question was?

You know what his response was?

I don't know if I'm lying now.

Right when he said, right, he said, I don't know if I'm lying now, right?

So right when he said that, I looked at the jury.

And guys, it's like a symphony when you have the jury with you.

We've all felt it.

When they're nodding along with you.

When you guys are like, just as one on the same wavelength.

So when I looked at them, just nothing but sly smiles and nods, I went back to Kenny.

I was like, dude, this is a really good start.

Let's keep on going.

So then they call up their investigating officers, two of them from Hollenbeck.

You know, they go through their little dance, gang culture, gang expert, why these two gangs are rivals, why somebody would come back to the neighborhood to gangbang to further their gang, yada, yada, yada.

So that was, and then they talked about their investigation, right?

So there wasn't much to cross at that point.

It was just, you had tunnel vision, you honed in on my client, and you neglected everything else.

You never spoke with a girlfriend in the car.

And would you be surprised if she would testify to so-and-so, so-and-so, this and that, this and that, right?

So it was just really showing that they were very biased.

That was my theme with the two IOs, investigating officers.

They called in some witnesses from McDonald's who didn't really say much or give away too much.

And that was their case.

The nephew was a star witness.

Let's talk about your cross-examination, then, of the driver.

It was consistent, you know?

Kenny never talked about gangbanging.

He wasn't a gangbanger.

I didn't know him to be.

Called him a jokester.

We went to McDonald's to get food.

He went down, and then I saw the fight.

He didn't have a gun beforehand.

He was scared out of his mind after.

So that was good, right?

But the girlfriend saw even more because she wasn't driving.

She was able to perceive more.

So although she didn't see who pulled out the gun or who had the gun,

she confirmed the sedent approached client,

a fight ensued, and client shot once, okay?

So then at the end of the testimony, I asked her,

so-and-so, you have no relationship with Kenny, right?

No.

You have no...

The prosecution asked you if it makes you scared that Kenny is in a gang,

and you testified yes.

She's like, yeah, right?

I said, do you have any reason to lie for Kenny Morales?

And she gave the best testimony that I didn't know she would give.

I just knew that she had no reason to lie for him

because they didn't have a relationship.

She said, no, if anything, I want him to be convicted.

And here's why, guys.

And she explained it.

Their car was impounded.

The car that was doing Uber, the car that was doing Uber Eats.

So they didn't have an income.

Remember, the driver and the girlfriend, they were partners,

doing Uber rides together and delivering food.

They were just two young kids with no money,

and this is their only source of income.

Because the police impounded this car, they were broke.

They weren't working.

So the girlfriend actually did not like our client.

So she had every reason to see him convicted.

So the fact she said, no, I want to see him convicted,

but I have to tell the truth, was extremely impactful.

So she blames the car being impounded on Kenny?

Yeah.

She's 18.

Not the police who impounded it and chose not to talk to her.

On Kenny.

I'm going to take a no comment on that one.

These 18-year-olds.

So anything else with the cross-examination that you remember?

No.

So that was the extent of the prosecution case.

So going into the defense case, Kenny and I then had to determine,

one, whether he was going to testify,

and two, if he was going to testify, what order I wanted him.

Do I want to start off with a bang,

whereas the jury would be thinking about that the entire time,

or do I want to leave it and end it with a bang

where they go into jury selection with that?

So we decided to call the other witnesses first, right?

We decided to call his character witness.

We decided to call some folks that are at the McDonald's.

And then we get a hold of the Cedan's gang friend.

This is the guy who was with him?

Yeah.

Pato?

Yeah.

Okay.

Yeah, how did Pato, because when the trial started,

Pato wasn't there.

No.

You didn't have Pato.

So how did this come about?

So Pato got a business card that our investigator left,

called, talked to the investigator,

was like, hey, somebody left a card.

I think I know what this is about.

So the investigator filled them in.

And the investigator, like, called me.

It was a Saturday.

I remember, like, you're not going to fucking believe what I just got.

I was like, what'd you get?

He was like, I got Pato.

He confirms client's account completely and says he's going to testify.

I was like, oh, my God.

That's incredible.

No way, right?

It just, you never get this, especially in a gang murder.

So I called Pato with the investigator.

Mr. So-and-so, my name is Jimmy Choo.

I'm an attorney with the public defender's office.

I understand he has some information.

I made sure I didn't lead him, just so this was completely clean.

It was open-ended.

And this is what he told me.

I was there.

I said, wait a minute.

I saw two people on the video camera.

Tell me your position.

Where were you standing?

Did you cross the street?

Just to make sure he wasn't fucking with me.

So completely consistent.

Yeah, I was standing with him when he told me he was going to go across the street and hit up that guy with a gun.

I stayed behind, which is completely consistent, okay?

I said, why are you calling us?

Are you still part of the gang?

He was like, yeah.

You know, how long have you been a part of this gang?

He said, I've been in since I was 13.

I looked at his file.

He was 38.

So he had been in for 25 years.

He was considered an OG, an original gangster.

And I asked him, I was like, are you a shot caller now?

He's like, yeah, I am.

I said, if you came and testified, you know your life is in jeopardy.

He's like, I know.

So I was curious.

I was really curious.

Why are you doing this?

Like, you don't know Kenny personally, do you?

So I was covering everything so that he couldn't be impeached, okay?

He was like, no, I don't, Kenny.

But I've seen nothing but, like, death and destruction.

We started off wanting to protect ourselves.

And just the kind of things that we're doing now, we're destroying our community.

Instead of protecting it.

That's what he said to me.

I said, and you're willing to come into court and testify?

He was like, yeah.

I said, have you told this to anybody else before?

And this is when my heart almost dropped.

He said, well, I was pulled over on my bicycle without lights, like a lot of our clients are.

Two weeks after, two weeks after the killing.

And I told the cop everything.

I was like, you told him everything you just told me.

He was like, yeah.

I said, do you happen to know if he had a body cam on his uniform at the time?

He was like, yeah, absolutely.

He told me he was recorded.

I was like, you don't happen to know his name, do you?

I didn't think there was any way in hell he would have the name.

He was like, yeah, he gave me a card.

I was like, oh my God.

And this is in the middle of trial?

This is in the middle of trial.

And like, do you remember at what point in the trial?

I mean, had the prosecution rested yet?

Like, where are we at in the evidence?

The prosecution had rested.

I was in the middle of the defense case issue.

So this is literally like, oh my gosh.

Because you said that the investigator said he talked to him on a Saturday.

So did you get this phone call on the weekend?

The investigator called me on a Saturday, and he got the call the Saturday as well.

And then you had asked for discovery on Pato, and the DA said they don't know who he is at all.

And they said they asked the cops, and they don't know who he is.

So this was like a discovery request that you made, and the DA responded through in writing, on email?

Or was this open court, this response, that the cops, was there a discovery motion on it?

Formal discovery motion, and I addressed it in court, because this was such a blaze.

This was such a smoking gun.

And on the record, the DA said, I spoke with my IO.

They say they don't know who this Pato is.

Okay?

Because at that point, the detectives and the prosecutor have all seen this video between the sister and the nephew saying, don't mention Pato.

Which I think also suggests that Pato even told the sister and the nephew.

You know what I'm saying?

Right?

Yeah.

Am I reading?

Yeah, absolutely.

Yeah, absolutely.

Am I reading?

No, you're connecting.

Okay, okay.

You're connecting the dots.

Okay.

You're connecting the dots.

Okay.

All right, so this gets...

So, like, it almost seems like Pato, like, goes back to the house, or whatever the timeline was, and was like, hey, you know, this is the way it went down.

And they're like, no, like...

No, you're absolutely connecting the dots.

And that all comes in in my closing.

So, two weeks after the incident, Pato is pulled over on his bicycle.

Not by the same police, but somebody from Hollenbeck, just a patrol officer.

Same division.

Same division.

So, I asked Pato if he knows the cop by any chance he spoke with.

He was like, yes, I do.

I have the card.

Guys, remember, this is mid-trial.

I think I had the grounds to move for a mistrial.

But at this point, I thought we had a shot, right?

Like, it wasn't worth it to move for a mistrial after all the good shit we've gone in.

So, I made the calculated decision.

We were going to proceed with or without Pato, but if we got Pato, it was almost a sure thing.

So, after he provided me with the officer and his badge number, we served a rushed subpoena on him.

And I told the court I needed to call this witness that wasn't on the witness list.

He said, what?

Why?

I said, I need to discuss this with the court ex parte.

Number one, it would reveal defense strategy.

Number two, I do believe there's a viable Brady here.

And I don't want to tip off the I.O.

That's what I said.

How do you think the judge ruled?

Take a lucky guess.

Nope.

Denied.

Open court.

Let's go.

All right.

So, I subpoenaed this cop in.

Not in front of the jury, okay?

It was a conditional examination, okay?

I asked them, do you recall pulling over so-and-so on this date?

He was like, yeah.

I said, do you have the report?

He was like, no, I didn't write a report.

I was like, how do you remember?

He was like, because everybody in my district was talking about this murder.

And then this kid told me he was a witness to the murder.

I was like, so you knew the case he was talking about?

He was like, oh, yeah.

Everybody knew.

And so, guys, they always teach you in law school.

Never ask a question you don't know the answer to.

But this was a murder case.

So, fuck what we learned in law school 101.

I was like, by any chance, do you have a record of sending this information to the I.O.?

Well, at first, I was like, did you send this information to the I.O.?

He was like, yes, I did.

Do you, by any chance, have a record of it?

He was like, yeah, I do.

I said, did you email it or text it?

He was like, well, I texted it to his cell phone.

I was like, what'd you text?

He was like, I have it right here.

So, he had to go through his cell phone, you know, go through the contacts of the I.O.

and then go up and down.

He texted the mugshot of the witness.

And in the text, he read it in open court and the judge had to read it.

No matter how much this judge tried to protect the cops, was like, this witness says he was

an eyewitness at the murder and has, it wasn't exculpatory.

It was, I forgot what, basically good information as it pertains to our client.

He didn't use the word exculpatory, okay?

You know, please give him a call.

But he has good, he has good information for the defendant.

As to the defendant.

As to the suspect.

For Kenny.

For Kenny.

And during this conditional exam hearing, or like, I guess, 402 hearing or whatever,

the I.O. sitting there next to the D.A.?

Yes.

Yes.

Like, shaking?

Like, could you just get a pee?

Oh, you could tell, you could tell he was heated.

Red face?

Red face.

Just kept on looking at me.

Like, if we were out on the street, he probably would have strangled me.

Monday morning, you talked to Pato.

Then you go into court before trial, and does trial stop?

And you start doing this conditional, you said you had to subpoena the officer to come

in, did trial commence, and then the officer came in, then you stopped trial, and then

did the conditional examination, or do you remember anything?

No, correct.

The trial commenced because he wouldn't grant a continuance, and then after two days, this

officer came in, we did the conditional exam, and he showed us the cell phone where he texted

the I.O. who was sitting at a council table, a mugshot of this gang witness who had good

information as to the suspect, and said, here's his contact information, laid out his phone

number, laid out his address.

He had it all right there.

Wow.

So then at this point, I was like, Your Honor, I'd like an opportunity to recall the investigating

officer to determine whether a Brady violation has been committed.

Even this judge couldn't say no.

And Jimmy, just for our listeners, you know, so I don't have to record it in, what is a Brady

violation?

The police and prosecution have a mandated duty to turn over any evidence that is exculpatory

or has the potential to be exculpatory.

That's favorable to the defense.

Correct.

And a violation could result in dismissal.

Correct.

Brady versus Maryland is a United States Supreme Court case.

Like, this isn't, you know, this is something that applies across the board everywhere in

the United States.

And if you follow me on the A&G Instagram page, I've done stand-up comedy on Brady versus

Maryland.

I've seen it.

Okay.

So what happens next?

So I asked to conditionally exam the I.O. and recall him outside the presence of a jury.

Are you familiar with the witness that just testified?

Yes.

You work in the same precinct, correct?

Yes.

Did he send you this text message?

I don't recall.

I was like, as an investigating officer and you had a lead, wouldn't you want to follow

up on a lead?

He was like, yes, typically.

I was like, why don't you do so here?

He was like, we already got our shooter.

I said, but you have additional information.

Isn't that something you should investigate?

He was like, possibly, you know, just being swirming.

Why don't you do so here?

I don't recall.

Did you ever try to contact Pato and then I use his real name?

I don't recall.

Right?

So I can't prove that he's a liar.

He just, they know when they're lying to say, I don't recall, a la Donald Trump.

Right?

I don't recall.

So even at this point, this judge turned bright red.

It was like out of a movie.

I got my smoking gun.

I said, this is as clear of a violation of Brady as there is.

This is Brady.

This is a textbook definition.

Not only is it potentially exculpatory, this witness said my client acted in self-defense

after the decedent from his own gang approached my client with a gun.

This is Brady.

So at this point, I moved for dismissal.

Can I ask you something?

What was the prosecutor arguing?

Was it brought up that the fact that they, on the record, said that there is no Pato,

they have no record of Pato or anything like that?

I mean, that was on the record from previous hearings.

So as much as I dislike this prosecutor, I believe him when he said that's what the cop

told him, that, you know, that's what he really believed.

So it was the cop who lied to him.

But the prosecutor is trying to argue right now that it's not a Brady violation, though, right?

He didn't even try to argue that to his credit because he knew he had nothing to stand on.

His argument, I remember it clearly, was, Your Honor, Hollenbeck has dozens of homicides.

This police officer was so busy.

You know, he just overlooked it.

It wasn't intentional.

I was like, Your Honor, my client's been sitting in jail 20 months as an innocent man.

It doesn't matter how busy they are.

They have this duty.

Right?

That's not a justification for a Brady violation.

Not turning it over or not even investigating it.

So the judge did find a Brady violation on the record, which is a BFD.

It's a big fucking deal.

Then the remedy is, you have a whole list of remedies.

I think some judges would have granted a dismissal because it was so outrageous.

My innocent client had been sitting in custody for 20 months while this evidence was buried.

I learned about him mid-trial, literally, after the prosecution's case had been arrested.

He wouldn't dismiss.

So you asked for dismissal?

Of course.

And I'm sorry.

Sorry.

One more thing on this.

Was the judge, I mean, aware to the level that, like, at the prelim or around the prelim,

you specifically asked this prosecutor, which means that this prosecutor, if they were doing

their job, specifically asked this I.O. about Pato.

And this is all after this I.O. has gotten this text message?

I mean, this is egregious hiding of evidence, right?

I mean, this isn't just the first stop of, like, I didn't investigate.

Like, this is something that you have been seeking regularly and asking about.

So, I mean, if a case were ever to be dismissed for a Brady violation, I feel like we're here.

And this interview was on body camera.

So this cop had the video.

And he didn't turn it over.

You're absolutely right, Allison.

This is as egregious as it gets.

This is the most egregious case of Brady I've ever seen.

And were you talking to our wonderful appellate division during this time?

Yes.

I was talking to a recently retired Mark Harvest, who's a saint.

He's my go-to appellate lawyer when I'm in trial.

He's always there.

Always.

He's there, like, at 5.30 in the morning.

Anytime.

You text him, he's always there.

Sensei, I miss you.

You know, I was conferring with Mark.

I was conferring with Dylan Ford.

I was conferring with our colleagues at CCB.

Just, we were all appalled.

We really were.

So I moved for a dismissal.

The judge would not grant it.

He suggested a continuance instead.

You're like the continuance I wanted on Monday?

I think I could have gotten a mistrial.

And I conferred with my client extensively on whether he wants me to move for a mistrial

and we start over or we take an enormous risk of proceeding without a mistrial

and possibly a guilty verdict.

He didn't want a mistrial.

So my final remedy was, okay, if you're not going to grant me a dismissal,

I want the court to play this body cam video where this witness lays out exactly what happened

and tell the jury that this police officer committed Brady and what Brady is.

At this point, he was hamstrung.

He had to do it.

And when did you get the body worn video in all of this melee?

The same day, that afternoon, after we conditionally examined the officer who pulled over

Pato, you know, we had the date.

So it was easy for them.

They went into their program, Axon.

They pulled it up.

But we all watched it together.

It was clear as day.

There was just no way around it.

Is the whole statement, is the whole statement there or is it just like, hey, I've got information?

The whole statement is there.

I'm just dying here, Jimmy.

I'm sorry.

I'm glad you guys are feeling my frustration.

It was ironic because I was so frustrated.

I was so angry.

I was so livid.

But I also knew that this could potentially save my client's life.

So I had to really just stay in the zone of plowing straight ahead without letting my disgust

overtake me.

So you're going to get a Brady instruction about the violation.

You're going to be able to play the video in open court.

You're going to do a quick transcription, I imagine.

Yep.

Right?

Yep.

For the audio.

Who made the transcription?

Ariel Taroni.

Love you.

Is that a law clerk?

No, no.

He's a Spanish interpreter who also does transcriptions.

But I didn't want the video to just be played.

So I asked Pato to come in.

Of course.

So Pato came in and he came out of Central Casting, guys.

You know, it looked like he had just woken up.

Thanks.

You know, he looked like you would expect from an East LA OG.

And he took the stand.

Who are you?

Why are you here?

You know, so you have to lay the foundation, right?

Were you there on this date?

Walk us through it.

So you guys already know the story.

I'm not going to rehash it.

Then we get to the bread and butter.

Were you present when decedent approached my client?

Yes.

So I put the video on the screen.

Remember how in the very beginning of this podcast,

I told you we saw the decedent, unidentified person?

Is this you?

Yeah, that was me.

Why didn't you cross the street?

Well, because my homie told me that he was going to go across,

hit him up, and blast him.

And I didn't want to be a part of it.

I said, did you try to talk him out of it?

He was like, yeah.

I said, it's not worth it.

So then finally, I asked him,

is your life endangered if you testify here in court?

He was like, yeah, of course.

I said, why have you decided to come tell the jury what really happened,

although your life is endangered?

And he told me what I told you guys earlier.

25 years of terrorizing the community, getting nothing out of it,

being essentially homeless and broke 25 years after in the gang.

I got nothing out of it.

I'm just tired of everything that we did.

At this point, guys, I've never had a jury like this.

I'm 43 jury trials in, okay?

Every single juror was sitting on the edge of their seat, like literally just lean forward.

This was as good as any movie I've seen.

I bet.

I bet.

Wow.

And so the cop is just, the aisle is just sitting there seething.

You could see the smoke coming out of his big head.

The DA was just like a turtle stuck in his shell.

It was phenomenal.

So at the end, I asked him, do you have any reason to lie here today?

No.

What do you think is going to happen to you?

The DA probably should have objected to speculation.

But at this point, I think they were so defeated.

He was like.

And scared.

Yeah, we're not trying to hide anything anymore.

Whatever you want to know, ask.

Anyone else have any questions?

Anyone in the back?

So at this point, Papa was just like, you know, I'm probably going to be killed.

That's what he said.

He said, I'm probably going to be killed.

And I said, and you think it's worth it to come in and tell the truth?

He was like, I could tell my kids I did something right.

I remember that testimony.

I could tell my kids I did something right.

Wow.

That's so.

Right?

That is such a, that is.

That's amazing.

That is like, I don't think you can even write.

No.

You can't script that any better for a.

No.

No.

What about the DA's cross-examination?

Was there one?

It was very bare.

Super bare.

Like, you weren't across the street.

So you don't know who actually had the gun, right?

It's possible.

Kenny had the gun, right?

So, you know, it was very, he had to do his job.

But at this point, I knew it was over.

It was just a matter of time.

Right?

So he was, after he testified, I didn't even need Kenny, but I've heard jurors say, even

though they tell you during jury selection, I won't hold it against them if he doesn't

testify.

I just didn't even want that.

I knew Kenny would, he couldn't hurt us by his testimony.

I think he would do more harm if he hadn't testified.

So I still put him up.

I would.

You, I mean, listen, you got to go all the way.

Wow.

You know, that's interesting.

I, I really feel like you didn't need him at this point, especially since his interview

came in.

I know what you mean, Allison.

You're right.

I mean, I know what you mean.

I mean that, I mean, I think it's a, I think it's a, it's a ballsy move, but this was a

ballsy case, you know?

So interesting.

And then Kenny want to testify.

He wanted to testify.

He wanted his day in court, but Allison, your concern, I definitely considered, but I, at

this point, I thought we were at third base.

I wanted to go in for the fucking kill.

Like I wanted to step on his neck and make sure he never got back up.

Like I went in for the kill.

You wanted the 10 minute not guilty instead of the four hour not guilty.

I love it.

We'll go to the verdict.

How did his testimony go?

He was completely honest.

It was consistent.

What I told him was, and I tell all my clients, the truth is easier to remember than a lie,

because then you don't have to remember anything.

You're just telling the truth.

So he was completely honest.

You know, there were some things that were bad, such as destroying the gun, not telling

the police everything, but the jury liked him.

They believed him.

It was completely in line with what he told the police two years ago.

So it was a good testimony.

And then the DA and the cross-examination of him.

How was that?

The DA was essentially yelling at him just to try, like literally yelling at him just to

rile him up.

Right.

But Kenny was cool.

I gave him the preview, try to get in his gang stuff, try to get in his tattoos, try to

get in some inconsistencies he had with the police.

Again, this was after Pato.

So unless Kenny was up there saying, yeah, I killed him, he deserved to die, I deserved to burn him out.

Something along those lines.

Samuel L. Jackson.

Yeah.

I, I've never been more relaxed during a client's testimony than here.

On a murder case.

I was like, yada, yada, yada, yada.

Tell your story, Kenny.

We're good.

So you guys could guess my closing.

We don't have to rehash it.

It was everything we've talked about.

The last thing I said was, we've heard a lot about gang culture.

We've heard a lot about gangs.

I'm going to leave you, ladies and gentlemen, with two thoughts.

One, we heard from Pato.

I guess there's honor amongst thieves.

And we heard what really happened here.

Two, not only is my client not guilty, he's innocent.

Thank you.

They go back into jury deliberations.

I'm about to cry because I'm just exhausted.

So this is a three-week trial, 10 to 4.30 every day.

They deliberated for two hours.

I went downstairs.

I sat with my client.

You know, you still never really know, even though you feel good.

So at this point, you know, we're sitting as close can be.

Almost the entire 11th floor of CCB is there.

They had heard about this case.

It was an exciting case, right, with fun facts, self-defense, gang, bad cops, bad judge, bad DA,

like everything that a PD trial lawyer lives for.

Not guilty second.

And then when they said not guilty first, I thought I was in shock.

I like time just stopped.

And then I heard my client and then I felt him just bear hug me.

He just leaned over and I started feeling all his tears on my face.

At this point, I broke down at council table.

It's the first time I've ever cried at council table.

I think it was just the relief and the exhaustion and knowing that he was innocent, knowing that if I had gone the other way,

he'd be serving life in prison, that we were able to redeem him.

We just bawled at council table.

Everything else was a blur.

What was the judge's reaction?

Well, after my client and I held each other and just literally bear hugged each other and bawled at council table,

I looked up and you just see the judge storm out and didn't even come back out.

Typically, even in like a misdemeanor vandalism case or petty theft, a judge would be like,

thank you, Mr. So-and-so, you know, thank you, jury.

I order you released.

Nothing.

Didn't wish him good luck.

Didn't congratulate him.

Nothing.

Stormed off the bench like he was livid with the verdict.

He had to see it coming, no?

I mean, what am I missing here?

This is the justice system, man.

They have a preconceived notion.

Sometimes, no matter what the evidence shows, it doesn't matter.

And then let me show you guys something.

Oh, it does work.

Oh, he's a share screen.

Oh, yay.

Aw.

What's this a picture of, Jimmy?

So the very next day, he came to CCB, was like, I told you I was serious that I'm never going to forget you.

He came with his mom.

We hugged.

We cried outside.

He's like, let me see my future office.

I walked him up to the 19th floor.

He met our boss.

He met a lot of our colleagues who walked me through it.

Then we walked downstairs.

That's Temple Street.

I hugged my friend one last time.

And we said I bye.

And somebody happened to be walking by and snapped that photo for us.

Aw.

Jimmy, I love that.

What an amazing, amazing not guilty.

Do we know, I mean, did the DA go back to his supervisor and be like, hey, I think we should let this case go?

That is such a good question.

So after Pato's testimony, but before client testified, DA was like, is your client still interested in an offer?

I kid you not.

I kid you not.

I kid you not.

I literally laughed at him.

I literally did.

And it wasn't, I wasn't even trying to be an asshole.

It was hilarious to me.

Right?

Whether my client was still interested in an offer after you were going first degree, murder, 25 to life for two years, after all the evidence I gave you.

You're like, yeah, you know what?

We'll take a loitering at McDonald's.

You know, you're not supposed to smoke there.

You actually have to.

I told him a dismissal, an apology, and you charge your cop for perjury.

He didn't give me a response.

But based on his expression, I think how he knew how you felt about me.

But I don't know if you guys want to get into this.

You might want to edit out.

It's not all a happy ending.

Sure.

So I think he's back.

No, he's not back.

We've been in touch, though.

We call each other.

We text each other a lot.

He's homeless now.

He can't get a job because when he applies, it shows murder on his arrest record, even though he was acquitted.

So nobody will hire him.

Not even King Taco.

For a while, he was working at a fast food restaurant.

He started developing symptoms of PTSD from both the killing and his time in jail.

So he started using some drugs.

So now he's homeless, unemployed.

Mental health.

Mental health.

And using some drugs on the street.

I've tried to get him help.

I've tried to bring him in.

He just is completely resistant.

I don't know if he's going to survive this, but that's what I'm working towards.

That's terrible.

Man.

But this is what we deal with, guys.

This is, you know.

Like, there's no apology.

People think justice was done here because it was not guilty.

People don't quite understand the collateral effects of just being prosecuted, of being in jail for – you said this happened during the pandemic.

So how many months or years did he spend in jail?

20 months.

He got COVID.

Well, and I mean, especially in a situation where you're – part of that reason you're in jail for so long and at all is because the IO specifically refused to look into, you know, this other witness.

Right.

I mean, that's really –

Like, he's called – the IO, by the way, is investigating officer.

Like, and they sit there during trial at the table with the DA as the investigating officer or as the detective, and there's sort of this perception that this guy actually did work on the case and actually tried to investigate the facts and get all the evidence and bring the truth to the jurors as to what happened.

And that, you know, this is a solid prosecution because this man right here was in charge of it when, in fact, it's the opposite.

The guy doesn't give two fucks about bringing the truth or investigating everything.

Nope.

Did anything happen to him, Jimmy?

Absolutely not, Allison.

I have a new murder case where he's the IO.

Shut the fuck up.

Yeah.

Absolutely not.

No discipline, no termination, no charges.

He just goes on like it never happened while my innocent client spent 20 months in county jail as an innocent man.

Now he's unemployed, now he's homeless.

So you get to cross him on this, though, right?

Absolutely.

If the next judge lets it in.

Yeah.

And we all know how that goes.

That's fucking wild.

My goodness.

That's crazy.

Your DA didn't file a complaint against him, for real?

I mean, like, what about their, like, you know, whatever, internal, blah, blah, division, whatever, like, the DA's office.

I mean, this is, I mean, am I crazy?

Like, this is really fucking egregious, right?

I mean, I'm, I gave it to our law enforcement unit.

I'm hoping they turned it over to Orwitz, Brady, but a Brady violation was found on the record, so I can't see how he escapes it.

Yeah, doesn't that have to go?

I mean, it'll just, of course, take a million years and whatever, but the fact that he's still out there investigating cases, I mean, that's wild.

All right, sorry, wrap it up.

All right.

Well, Jimmy, you know, thanks for coming on the podcast today.

I was really excited to have you as a guest because I knew it was going to be good.

I've worked with you for so many years.

I know how you tirelessly defend our clients, work as many hours as you need to be, seeing them all the time, sometimes making me look bad, but that's okay.

I know that when you're in trial, our clients are in good hands because you do things that no other lawyer that I've met is able to do, or things just happen.

They seem to happen when you're around.

I don't know what it is.

So because of that, you know, we made a special day so I could bring in my special co-host, so Miss Allison here.

So anyways, thanks for being on the podcast today.

One last question.

You know, it's been a while.

Last time you put up an episode for us was season one, I think.

So we're about four or five years ago.

So let's ask this question again.

You've been a public defender for about 12 years now, I think.

Ten and a half.

Ten and a half.

But you walk, like you carry yourself like a 12-year veteran.

Yes, I do, like a 12-year veteran.

You're absolutely right.

Ten and a half years.

We'll say 11.

Let's just go.

You've been in the office for 11 years now.

And why did you want to become a public defender?

It's my dream job.

It really is.

I would do this job for free, guys.

I think it's the most noble job in the legal profession.

We touched on it in the beginning of the interview.

I got into a little trouble myself, charged as a juvenile for assault with deadly weapon and gang enhancements.

I was fitnessed up and charged as an adult, moved to county jail.

I just thought the system was inherently unfair and tilted towards minorities and people who didn't have money.

So I wanted to play my little part in it.

And I hope in the last 11 years, I have.

You know, I am very proud of what we do and to be public defenders.

I know in the last three or four years, in light of Ferguson, George Floyd, that public defenders have kind of become sexy and in vogue, which is bizarre to me because it was the furthest thing when we started.

Right, guys?

But, you know, I've never lost that sense of pride and mission.

And I know both of you possess that as well.

So I am incredibly honored and privileged to be able to do what I do.

And I hope Kenny's story can shine light on some of the travesties and injustices that our clients do face on a daily basis and the fight that we put up.

Right on.

Right on.

Well said, Jimmy.

And, Allison, thanks for co-hosting today.

It was great having you right by my side.

You're very welcome.

I'm happy to be here.

My ride or die.

That's right.

All right, guys.

Thanks for being on the show.

Thank you.

Bye, Jimmy.

Bye, guys.

David and Allison, it is always a pleasure.

Let's not wait another five years for our next episode.

All right, Jimmy.

That's up to you, Jimmy.

Let me try harder.

Well.

Well.

All right, Jimmy.

All right, guys.

Good to see you, buddy.

Take care.

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

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

And guess what?

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

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