New England Clam Chatter – When Tough Talk Turns to Acquittal

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The worst line in the letter was, "Fuck a warning shot, aim for the bed shot. Put these guys to sleep." And they're saying, like, "Hey, what does this mean? What do you think it means? You know, it sounds like you're trying to kill people." Like, "Oh, I'm not trying to kill people." Right, yeah, put him on. You know, and he did the, like, "Where'd you interview him?" "Oh, right, you interviewed him inside a state prison. He was a prisoner." Like, "Yeah, alright, we know. They know. Like, now move on." Just the act of not putting on

The defense shows to the jury, "Hey, we got this. This is what we think of the state's case." Welcome!

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

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

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

Another Not Guilty.

So here we are, guys. Welcome to Another Not Guilty. We're back. Swinging well.

David here, flying solo in the hosting department. But that's cool, guys. We got an awesome show today.

Coming all the way from the East Coast.

Chris DiMatteo, all the way from New Haven, Connecticut, guys, here to share one of his not-guilties.

He's a private lawyer who does court-appointed work. He's here to let us know that justice is being served all across America because of us awesome public defenders, court-appointed defense attorneys, private lawyers, fighting for our clients' rights.

Chris, how are you doing today?

Ah, pretty well. I mean, it's evening here, so I had a full day of going all over the state.

And how long have you been a defense attorney for?

About nine years.

But you're not a public defender, right?

Right.

What do you do then?

A lot of states have it, I think, where when the public defender is conflicted out of a case, they appoint private attorneys or maybe there's a conflict office.

Here in Connecticut, there is a statewide public defender's office and it's broken up into offices throughout the state at each court.

But there are, they used to call us special public defenders.

Now it's called the Supreme Council.

So we have contracts with the chief public defender.

Then we get assigned a particular court or a location.

And then we get assigned cases that they can't handle.

It could be because they represent a co-defendant, they represented a witness or a victim.

And I've been doing that for, I'd say at least seven or eight years now.

What's that?

You got a not guilty to share with us today?

I do.

All right.

And what were the charges in this case?

So my client was charged with two counts of inciting injury to a person.

It is when a person essentially tries getting somebody to commit an act of violence to either hurt or kill another person.

Soliciting an act.

So they do something that makes somebody else hurt somebody.

Right.

Or really just asking or trying to hire somebody.

Really any incitement doesn't have to be paid.

So what did your client allegedly do then?

So my client was at the time a prisoner in a state correctional facility.

And he was alleged to have, through a letter and also through some phone calls, arranging hits on the outside.

And how did they find out that he was arranging hits on the outside?

Or why does the government think that he arranged hits on the outside?

Well, he wasn't arranging hits.

So in prison, all prisoners' phone calls and mail are monitored.

While phone calls could be, well, except for, obviously, attorney-client communications.

But the phones they use are recorded and monitored.

And outgoing mail and incoming mail could be intercepted and read.

So at one point, a letter was intercepted.

And also his phone calls, his phone recordings were pulled.

I still don't know at whose direction it was.

Whether the police were, you know, asked the DOC to take a look.

Or if it was just a routine monitoring.

So there were, you know, some communications that they said sounded like he was.

That he and his friends or family were talking about some things that happened in their neighborhood.

And that he was telling them to seek revenge.

You know, he had a brother who was recently shot.

And he had somebody else that he knew was jumped by somebody.

And in the letter and the call, it was, you know, language along the lines of, you know, this is war time.

We have to take care of this.

That sort of thing.

So these are actual letters, right?

From your client.

It was one letter.

And then a few phone calls.

And in it, he's in it, he's saying stuff like, there's this war.

We have to take care of it.

Who is he sending these letters to?

Or what letter to?

Again, the one letter that came in only, actually, it only was one letter intercepted.

And it was introduced into evidence.

I mean, it was mailed to a person who was not a witness.

The police and the state thought he was talking to somebody else in that letter.

That he sent it to somebody to give to, you know, a brother or a friend or somebody else on the outside.

Is your client, is he a gang member?

They tried alleging that he was part of gangs.

He denied gang affiliation in this interview.

There was nothing that connected him to any gang.

Okay.

That is interesting.

And then what about, and then the phone calls.

Who are the phone calls?

The incriminating phone calls.

Who were those two?

Just a family and friends.

Mother, brothers, girlfriends.

Can you describe one of the incriminating phone calls then?

One that came into evidence mentioned his brother was shot.

And he got pretty upset about that.

And that's when, that's where some of that, that idea comes.

They find that his brother was shot.

He says, you know, we got to get back at these guys.

We can't let this happen.

If I were on the outside, I'd be taking care of this.

But you have to do it.

That sort of thing.

And our whole thing was that he was just upset.

He was blowing off steam.

Real quick.

What's the client in prison for?

So he was actually there on a special parole violation.

So he had a lengthy period of special parole.

And he was actually, he had violated it for a previous charge.

And he was currently only being held on that violation.

He actually had a release date coming up.

Did the police interview your client?

Yes, they did.

The letter was in probably July.

The police had interviewed him shortly.

So the state police interviewed him because he was in a state facility.

It wasn't actually the police.

So there was some things, there were some things going on in the city where he was from.

And I think they were trying to connect him to that.

So the state police interviewed him in probably July.

It took a couple months for a warrant to come out.

So did some type of crime or violence happen?

And then the city or the police were trying to say it was because your client said, take care of this or handle this or something like that?

Actually, there wasn't.

There were things that had happened that they thought he was responding to, but there was never anything that came as a result of that.

And that became a big part of our case, the absence of any kind of follow up of any kind of, that nothing was really carried out.

What exactly did he say in his statement to the police?

So the police, again, the state police showed up and they actually came in with this letter saying, I've got this letter.

We want to talk to you about it.

And he was trying to probably feel them out.

Kind of like, all right, what do these guys have on me?

What do they have?

It was a voluntary interview.

He actually was interviewed before he was charged.

So the police come in with this letter and they're saying, we got this letter.

This is yours, right?

And they're saying, all right, what does this mean?

You know, you're saying, who are you talking about?

And he's like, ah, what do you mean?

What am I talking about?

I'm not saying anything.

And they say, hey, like, we're just here to make sure you're not just talking shit.

We think that's what you're doing.

But, you know, we get one of these letters in a correctional facility.

You know, it sounds like maybe you're arranging murders.

And he's saying, oh, I'm not doing that.

I'm not arranging murders.

And the thing is, the police are actually, I pretty much took what they had said in this

interview and used that as a big part of our case, because they're going in saying, yeah,

you know, we think you're just, you know, talking trash.

You're just saying this stuff.

But if you're not, and again, I use those.

You said that you use what?

Because the police said they think he's talking trash, you use that how?

So the statute and the jury instructions, because the statute has been challenged on First Amendment grounds.

You can't just be charged with this crime for saying something stupid.

So the case law does require that the threat lead to some sort of imminent violence.

And also, again, I later on asked for an additional jury instruction based on a recent case that the language be likely to cause such injury.

So then do you think like when the police went into that interview and said, oh, what is this?

You're just talking trash.

We just want to make sure you're talking trash.

Say yes, right?

Are they trying to get them to say yes?

You know, honestly, I was trying to, I didn't really know what they were doing.

I don't know if they were trying to get them like buddy up to them.

I don't really know what their interrogation technique was.

I think they're, what they're trying to do was get them to identify the people in it.

So they could probably start questioning those people and figure it out.

Identify the people in the letter.

Right.

Like who he was sending it to, who he's referencing.

Because he's referencing, he's using nicknames and first names.

I think that's what they're trying to do.

But in the course of doing it, they're saying, yeah, it looks like you're, you know, you're pretty pissed off that your brother got shot.

Yeah.

Who wouldn't be?

And it seems here, you know, again, you're, you're just talking shit here.

I mean, that's what we think you're doing.

But, you know, don't tell us that you are, you know, we'll, we'll leave you alone.

And they went on for about, probably about half an hour.

And they just asked him about, like, who's this?

Who's that?

You know, what does this mean?

What does that mean?

Because one of the, one of the, probably the, the worst line in the letter was, uh, fuck a warning shot.

Aim for the bed shot.

You know, put these guys to sleep.

And they're saying like, Hey, what does this mean?

Like, what do you think it means?

Like, Oh, I, I'll tell you what I think it means.

And, um, it's pretty bad.

Yeah.

You know, it sounds like you're trying to kill people.

Like, Oh, I'm not trying to kill people.

Did your client sound like he was intimidated by the police?

It sounds like he wasn't.

No, actually.

What do you, what do you think?

What does this mean?

What do you think of me?

No, actually.

You know, like.

He actually came across fairly well.

And the whole interview was, um, almost as light as a police interview could be.

Like there actually was, they're kind of, you know, chuckling through it.

At one point, um, the lead investigator was reading it and kind of a tough sounding voice.

Other ones said, Hey, you sound pretty good.

Like that.

Almost believable.

Like, Oh, you think so?

Like, no.

Um, so yeah, it was kind of light.

Like my, my guy didn't sound like he was tough.

He also didn't really sound.

Like he sounded like he was, uh, again, trying to feel them out.

Um, he wasn't just shutting up.

You know, he was talking a bit.

Um, wasn't admitting to anything.

Wasn't.

Yeah.

He was denying things.

But yeah, it went on.

It's about 38 minutes of, um, you know, what does this mean?

Who's that?

What number is this?

Hey, ANG fans.

Thanks for listening.

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And please leave a comment if you like this episode.

Well, any interesting phone calls of note that you remember?

Actually, uh, there was one where he's.

They claim he's talking about getting back for this, um, this hit.

And it sounds like he says something like that.

I think the phrase was strap up.

You know, we got to strap up.

There was another one, probably one of the lighter moments in trial.

There was a phone call between him and a female friend.

Okay.

And this one had nothing.

There was nothing in it about any kind of crime.

Um, but I think the reason they used it was because she uses his name in talking to him.

So that was a way they could connect his voice and his identity.

Um, and this was a call where, uh, yeah, I think it helped us because I don't know if this was his girlfriend.

Um, what's the relationship was and it wasn't very clear.

And she was complaining to him about how, how she thought he wasn't really being straight with her.

Like at one point, I guess his last bid, he got out, he told her he was getting out on a Sunday, but he really got out on a Friday.

So she thought he was hanging out with somebody else for a couple of days.

Uh, but one of the things that you typically don't, if, if a release dates on, it's calculated to be, I think on a Saturday or Sunday, he'll let you out on Friday.

It's like, there was something about that.

And he's kind of taking the same thing with the police as he was with her.

Like, Oh no, it's not like that.

Yeah.

And, um, and, um, then she was talking about, like, I don't need you.

I have, I have other, I have other guys.

I have toys and things like that.

Um, whatever toys meant.

Um, and so it's one of those things that, and the jury's listening, like, wait, what, why are they playing this call?

Like, what does this have to do with anything?

Um, but again, I think that helped us too, because it, it, it, it gave kind of a window into his personality.

Yeah.

One of the hardest parts about this case, I think probably the hardest was, is this one thing to represent a client who's being held in jail.

It's another thing to represent a client that the jury knows is in jail.

And that is one of the big problems with the police interview was they're talking like, like they know he's in jail.

They know he, what facility he's in.

They know he is in the most secure facility in our state.

Um, you know, you'd have to think that a lot of jurors are thinking, geez, uh.

They're pretty dangerous.

Yeah.

Like, do we really want to let this guy out?

You know?

Um, they, so to be fair, they never actually talked about what he was there for.

What is, I think they do mention it as a parole violation.

They might've done that, but they did the underlying charges were never mentioned.

Yeah.

Well, I'm sure you could have like done a motion, did a motion at the beginning of the trial, but not to bring up the reason why he was in custody.

Yeah, we did that.

Cause even if you say like, oh, it's just a parole violation.

Well, he's on parole for some.

Yeah.

Right.

I think everybody kind of knows how parole works or what it is at least.

But you know, like, Hey, look, you know, sometimes like you just got to embrace those facts.

He's in custody period.

Let's move on.

Yeah.

It is what it is.

And now we're here to find out something else about him.

So.

So then like, I mean, this case sounds kind of quirky.

It's, you know, interesting charge.

You got interesting facts.

He sends some letters.

He sent the letter and some phone calls saying, let's strap up, let's get them.

But we really don't know who he's sending these communications to.

And we don't know why he's sending them to.

We don't know.

It's very vague, right?

It just, it's like smoke, but no, no real fire yet.

So then what are you doing with this case then?

What's your plan?

What's your goal?

I mean, the obvious goal was an acquittal.

And our whole, our whole thing was really just.

All right.

Smart guy.

Of course it's acquittal.

All right.

Look, but what's your plan of attack here?

How are you sizing this case up?

What's going on?

Just to.

And my theme for the closing was all talk.

That's all he was doing.

Like there has to be more than words to convict somebody in this offense.

There has to be some sort of action.

There has to be some sort of, they have to be likely to produce some sort of result.

And that wasn't here in this case.

These were just words.

They were a guy who's upset.

He was a guy that's really cut off from the outside world, but for what he hears over the phone.

And he got some bad news.

So, right.

There's a lot of research ahead of time on the law and, you know, case law regarding that statute.

And what did you discover with your research?

Again, that statute was challenged on its constitutionality.

And, you know, judicial gloss was added to the jury instructions.

So, again, it has to be language that's likely to produce an imminent injury.

Yeah.

And you said your client was kind of quirky or no, I said quirky, but you said like they really showed his personality.

The phone calls did and his interactions with the police.

What can you describe his personality then?

Yeah, he described himself as a rapper.

The guy that likes to, you know, maybe talk a big game or at least rap a big game.

Well, cause it's not, I was thinking rapper just because some of those, those lyrics about the bed sheets.

What was the bed sheets?

It was a bed shot.

I have actually not heard that in any rap, but I might not.

I'd probably don't listen to the same stuff my clients do.

It's not in the latest Drake album or anything like that.

I don't know.

But right.

It was very, like fuck a warning shot, aim for the bed shot.

Yeah.

That's, that's a rhyming.

That's a lyric really.

Over here in LA, you know, we have Compton.

We have South Central.

This is just normal talk for us, but.

But so, okay, so let's go.

Let's go to trial then.

Let's start with the trial then, right?

Yeah.

So we went, we went to trial quickly in this case because the prosecutor and actually the

good prosecutor guy that likes to try cases.

He said like, all right, why should we bother having judicial pre-trial?

This guy's not going to take anything.

Then we'll set it for trial.

And my guy said, yeah, let's go.

Yeah.

Let's just move this case.

Yeah.

So we put it on the trial list.

We met with, we met with the judge one morning.

She had actually, even though we had a date for jury selection to start.

We met with her a day or two before to really just go over the schedule, how much time we'd

need if I had any, you know, motions.

So we started jury selection.

It took two days to pick a jury.

So tell me about jury selection.

Well, it took two days.

That is, you know, maybe quick, maybe on par with a lot of other trials in Connecticut.

Our jury selection system is different from probably the other 49 states in that we questioned

each juror individually outside the presence of the jury panel.

And each juror is called in one by one.

Um, the, I think the state gets the first set of questions and then we get the second and

then we alternate.

And, um, we do juries of six.

So we only picked, I think six jurors and two alternates.

So what did you do?

I was actually looking for, so I was looking for jurors that would really follow the law

and uphold beyond a reasonable doubt.

Um, I asked about, well, one thing I asked about was, um, not just credibility of police

officers, but credibility of prisoners.

You're going to be hearing from witnesses who might be prisoners.

Would you value their testimony any less because they're there for a reason, right?

Um, you know, things like that.

I asked, um, I asked jurors, um, you know, if in their experience or in their lives they've

ever said something they didn't mean, um, or that people could say things they don't really

mean.

And yeah, of course everyone's said, yeah, that makes sense.

Of course people say stuff when they're mad and stuff like that.

And the prosecutor was onto that.

So he was asking his own questions, like, you know, um, but people could say things that

they mean.

Yeah, of course they could.

So that's kind of how I was, um, what I was going for.

Again, I wanted people that would follow the law.

I saw this as a burden type case that there wasn't enough evidence beyond a reasonable

doubt to prove my client guilty.

So I wanted people that would follow that standard.

I wanted people that understood and would follow rules.

So I looked for people who, you know, worked or had some experience where they were, again,

upholding some sort of standards or, um, you know, one juror, actually one juror that we

had, well, one, you know, actually, I think the first one we picked was a delivery truck

driver.

Somebody that worked for one of the courier of FedEx or UPS or something like that.

Um, and he seemed pretty objective.

Um, and also somebody that, all right, that this guy drives, he has policies to follow.

Obviously it's supposed to be following the rules of the road.

It's like, it's like, you're all, you're all like, you're a UPS driver.

What can Brown do for you?

You're used to working at a certain level, right?

Can you uphold that?

Well, I mean, I made a point that, you know, it's not just people who have to follow rules.

You know, it's not just criminal law.

The law also applies to courts.

It applies to the state and that if they would treat their responsibilities or the burden of

proof, um, the statutory requirements as much as they would, um, treat criminal laws, that

they would be following that law too, the way everyone's expected to follow all the laws.

Um, and another juror we had was actually a retired probation officer.

And that's one of the, a jury that both the state liked and I liked.

Oh yeah.

Um, kind of, we were kind of seeing it as, well, this is a person that probably understands

people in the criminal justice system, but also sees them as people, people who have

families and have lives, not just.

I'll be honest.

I am not, I am not putting a probation officer on my jury, but it worked.

I've had good experience with them, believe it or not.

Uh, both with adult and juvenile probation officers.

I feel like in my, in many of my experiences, they, they really did.

They weren't just looking to violate people.

And this was a person that I can choose to be very fair.

I think the state saw her kind of as the way you're thinking of her as, ah, this is a

person that's on my side.

Someone that probably sees this guy as a thug or as a, as a crook.

I mean, they, I mean, they, they, they can go back and they, when the jurors are deliberate,

he could be like, look, let me tell you, I'm a probation officer.

I know how these guys talk.

Yeah.

That's code for go murder somebody.

Let me tell you guilty.

You know, I'd be afraid of that.

Yeah.

We really liked it.

My client liked her.

He said, no, we got to pick her.

I said, yeah, yeah.

All right.

We'll pick her.

Your client liked her.

Um, you know, we had, um, well, actually one of the more amusing moments was a juror

that the state, well, two jurors at the state struck.

Um, so in our part of Connecticut, we are located near a well-known university.

And we occasionally, and they're actually, there are quite a few universities and we, we occasionally

have professors and grad students in our jury pools.

And we had two professors in our jury pool.

One was a, uh, professor of philosophy.

Oh, okay.

It was my turn to start questioning.

So I had the first round and I asked, all right, well, what do you teach?

Or what, what specifically in philosophy do you teach?

He's like, well, I've been the philosophy of doubt.

I'm thinking, oh, all right.

Philosophy of doubt.

Um, you know.

Nice.

Yeah.

We asked a bunch of questions.

He was, he was loving it because he was talking all about, all about doubt.

You know, he had an audience.

Did you bring up reasonable doubt?

What about reasonable doubt?

Yeah, I did.

Okay.

What's, well, what's reasonable?

I mean, there's, what's reasonable.

It's subjective.

He was saying things like that.

I was the philosophy.

I was the philosophy major.

So, um, yeah, I think he said, like, oh, I've also been reading a lot about the innocence

project.

Oh, okay.

Um, I, I, I didn't ask any follow-ups on that.

And then, um, you know, the state asked him, I think, one question as soon as he's left

the room.

But then they, that's the other thing.

Once, um, we finished questioning jurors, the juror is taken back to the jury room.

And then we either attempt a four cause challenge or use one of our peremptory challenges.

Um, I think as soon as the door shut behind him, the prosecutor said, uh, the state uses

a peremptory challenge.

Um, so he was struck.

Oh, the prosecutor struck him.

All right.

Yeah.

And then, um, so we also get questionnaires for each juror.

So even though we don't get to see the full panel as a group, we at least know who's coming

down the line.

So there was another professor farther down, but while he was, I think he was the next one

from the prosecutor just said, don't spend any time on this guy.

Burnham.

I mean, I still question him figuring, Oh, is he playing some game with me?

And yeah.

Right.

Do you remember what it was about that particular professor that may have been unappealing to

the prosecutor?

I mean, I'd like to say that the state doesn't like smart people on the jury, but there might

be something more than that.

Cause you would want to academic.

I did.

No, I really did.

I want people that would really think about like this was, again, I thought this was

a, even, even though the statute's not a very long statute, it's one that has some,

the jury instructions I think are pretty complicated with the eminence requirement.

Right.

People that would think about it.

Cause they're like, what's the prof?

Okay.

The pro what's the prof to this?

What's the law?

And can we apply it to the facts?

It's very academic what we're asking jurors to do.

Yeah.

Um, another, another, another jury has a younger guy.

I was probably in his twenties.

I think he was just out of college.

You know, one thing I think I was asking him about, oh, you know, one thing I actually

do ask all jurors about their perceptions of the law, you know, where they get, what's,

what shapes their perception of the criminal justice system is from TV or movies or books.

Um, you know, cause some people might expect a Perry Mason or a Matlock moment where I have

to actually prove that it was somebody else who did it.

Um, or they might be fans of law and order, or they might be fans of about Nancy Grace or

some other horrible show that I'd want to give her.

But no, there was a kid that said, uh, he's like, yeah, I'm really into that serial podcasts.

And I'm thinking, actually, this is, this is a, could be a pretty good juror cause we're

dealing with recorded prison phone calls.

And maybe he's somebody that thinks that's some criticisms of the judicial system.

So I didn't ask him much more after that.

I kind of want the state to get onto what I was, and the state didn't have a problem

with them.

Maybe they weren't aware of the, that podcast or just didn't care.

So yeah, that's a few jurors.

And then, yeah, I mean, another one was a person who I think was retired.

I think she might've been an insurance adjuster at one point.

So somebody that like reviewed claims, I'm thinking, all right, this is somebody that probably

weighs evidence.

Yeah.

I think the prosecutor probably thought the same thing.

All right.

Person that, that weighs evidence, but I know a false claim when I see one.

That's probably what they were thinking.

But she seemed pretty fair.

Um, also seemed like she had like my client detected that.

Yeah.

She has, um, kind of like an ax to grind.

Like she was.

Yeah.

I would think I would want an insurance adjuster.

Someone who's cynical, who doesn't believe people.

Yeah.

Doesn't get caught up in the emotion of the event.

Yeah.

Um, I mean, again, during my, my question to the jurors, I was also trying to prep them

for the fact that my client probably wouldn't testify.

I might not put any witnesses on and that my evidence would be coming through cross-examination.

Yeah.

And actually people seem to have no problem with that.

I, I don't know if that's just them agreeing with the judge or if they, I mean, I like

to say that we have a, we had a pretty sophisticated jury pool, but yeah, that really wasn't as much

of an issue as I expected.

I figured I'd get jurors who would say, Oh, I want to hear both sides.

Um, no, actually that really didn't come up, um, as least as much as I expected.

All right.

Tell me about opening statement.

Oh, another interesting thing we don't do in Connecticut.

We do not do opening statements in most trials.

Oh, that's cool.

That's a waste of time anyway.

Um, you, I mean, you could, I think both sides have to agree to do them and the court

has to allow them.

Um, it's very rare if ever in criminal trials.

So no opening statements.

Yeah.

That's great.

I mean, defense opening statement generally is only a minute anyways.

Hey, keep an open mind.

It's, uh, you'll find out that it's not everything, you know, there's two sides to every story.

It's not everything's what it's cracked up to be.

No, actually I think that's, um, I think that is something that, um, benefited us because,

um, yeah, there wasn't, you know, the state didn't get really the first word.

The witness started.

So right.

No opening statements.

So, okay.

So who does the state?

Yeah.

What's the first piece of evidence the state brings up?

The first witness the state calls wasn't security director, but it was someone from the security

department of the department of corrections, the person who was in charge of the phone monitoring

and the mail monitoring.

So that's how they introduced the calls and the letter.

And well, they tried actually, um, state tried getting her to do a courtroom, a dramatic

courtroom identification of my client.

And I objected, you know, and they sent the jury out.

And I said, no, your honor, there needs to be some foundation here.

There needs to be a basis for how she knows who he is.

Actually, that's the thing.

When she came in and sat down at the state, my client said, Hey, who's that?

You don't know her?

Um, I don't know her.

I've never seen her.

Okay.

So the way this judge did most objections, she would actually send the jury out of the

room.

And then we'd, we'd argue them.

And there actually was a recent state Supreme Court case involving courtroom identification

where the state had to make a showing that the, the witness who's doing identification

has a basis for it.

So it's not just the prosecutor saying, all right, like, yeah, that, like, yeah, that, that

guy over there next to the defense attorney, he's the, he's the defendant.

Like, yeah, of course he is.

I mean, everyone, like it's really not that hard to pick out a defendant in a, in a courtroom,

right?

Yeah.

So all, so this witness only knew my client based on what she had in her file that she

had never seen him or talk to him in real, in person.

And the judge said that wasn't enough for her to do identification.

So we're able to keep out.

Yeah.

I mean, I personally think those courtroom identifications are such a crap.

Really.

Anyone could point like that.

That's him.

You know, which one?

Oh, you know, the person sitting at the defense table, who's a, you know, not the lawyer

that that's the defendant.

Yeah.

I mean, it was definitely planned out.

I don't value them all that much.

I mean, no one gets that wrong.

If you get that wrong.

Right.

If you don't know who it is.

Although there have, I have heard of, um, defense attorneys filing motions to allow

a client to sit somewhere else and have somebody else sit at the council table to see if they

can identify the right person.

Um, no, this shit, our case is really like the voice recognition.

What was your cross examination like then?

I used her actually to provide some information or really set the scene for prisons.

So I asked her about the phone policies that, you know, phone calls are recorded, that there

are messages during these calls saying they're recorded, that there are signs posted by the

phones saying these calls are monitored and recorded, that inmates handbooks and their, um, their

phone, their, I think they have to sign up or they have to sign a card to get their phone

privileges.

So that says that they're recorded.

Um, and that their mail is monitored and that they get warnings for when their mail is being monitored.

So I got all of, of that in.

Cause you're trying to, you're trying to argue that, you know, your client wouldn't say, go

kill somebody or go shoot somebody.

And like you really meet it.

Cause he knows that he's being recorded.

Right.

I mean, I didn't want to try the argument like, Oh, my client wouldn't be so dumb to make a

threat on a recording.

Cause there probably are people that would, but I want to have that idea in there.

I want the jurors to be thinking like, why would anyone ever make a serious threat or something

on a recorded line?

Um, I also got, I think one thing I did get in, um, I didn't argue it, but I was able to

get it in that, um, cell phones are one of the most sought after pieces of contraband

that gets smuggled into prisons.

You know, the state's trying to say that my client was some sort of, you know, kingpin

directing orders.

Would he have better ways to get messages out of prison than using the mail?

You know, Oh, he gets, he gets smuggled a cell phone if he really wanted to make a shot.

Right.

Um, well actually also kind of nailed her into the timeline.

Um, you know, when did you first get this letter?

When did you notify the state police?

You know, when did these interviews occur to show that it actually took a period of months

for this to happen?

This wasn't, they got a letter that said, Oh my God, someone's going to murder somebody.

We better call the police.

Like, you know, it actually took a little longer than that.

So that kind of went to my whole imminence argument.

Like how imminent was it if they were kind of dragging this thing out?

Um, right.

I also got in.

How many calls did he make?

You know, this, this, this guy made lots of phone calls.

He was calling people almost any time he could.

And, you know, then also, you know, were you monitoring calls from, um, you know, this

date to this date, you know, which would be the time from when the let the letter was intercepted

to when, um, my client was interviewed.

Um, you know, I, I think I, you know, when did, you know, when was this letter intercepted?

When did, when was the client interviewed by the police?

Cause he didn't have any idea that this letter was intercepted.

Um, he also didn't have any idea that these calls were monitored or at least that the calls

were pulled until he was interviewed by the police.

So my point being, if this guy is making these, uh, orders, he thinks he doesn't know he's

being monitored.

Why doesn't he keep talking about them?

You know, why are there all these phone calls that, where he's not talking about this stuff?

Why is he not following up with anybody?

Why didn't he send any letters after this?

Yeah.

You know, it's not like you can say, oh yeah, he didn't send it and anything else because

he knew he was, they, they accepted his mail.

He had no idea that letter was intercepted until the state police came in with it.

So that's what I was trying to do.

You know, nail her down on a timeline.

Again, again, also just demonstrate to the jury what the monitoring is in a prison that

that you have limited contact with outside, um, what his, how many visits he was allowed,

how often he saw people.

Really that the only way this person can know about life on the outside was through the limited

contact he has over the phone.

So who was the, what was the next piece of evidence by the prosecution?

So again, I think the letter and those calls came in through that witness.

And then the next witness was the state police detective who did the interview and ran that

part of the investigation.

And, uh, how'd that go?

I don't know.

Again, it went pretty well.

Um, again, he, he came across very well.

He was a pretty, you know, sharp, uh, clean cut, um, young guy.

You know, I thought he did a great job cause he didn't testify the way a lot of cops testify,

you know, not one of those ones like turns to the jury.

And he actually was pretty conversational, I think the way a witness should be.

He didn't seem defensive.

No, he really didn't.

Um, not at all.

He really had an approach of, Hey, this is what I did.

Um, no, he wasn't backing off anything.

He wasn't digging in.

It was, Hey, this is what I did.

This is what I didn't do.

Um, this is the interview I took.

But he, wait, I'm sorry.

His testimony was he actually went and interviewed your client, right?

Right.

He's the one that took his statement.

With his partner or the other detective, right?

Right.

They didn't call the second detective.

They just called.

And so the prosecutor just sort of just, uh, talks to him, but then plays your client's

interview.

Right.

Right.

Yeah.

Put them on, you know, and he did the, like, where'd you interview him?

Oh, right.

You interviewed him inside a state prison.

He was a prisoner.

Like, yeah.

Yeah.

Right.

I'm going to move on.

That kind of thing.

I didn't really care about that.

Um, so what was your cross-examination like then?

Again, it was actually going into a lot of the stuff that he said.

So I was trying to take his words out of the interview.

As in, all right, you're, so you're talking to him and you're, and again, you walked in

saying, you know, it sounds like you're talking shit here.

That's what, that's what we're here to ask you about.

I said, all right, so you're saying that my client might be, you know, just talking

some trash.

So in your experience as a police officer, people do that.

Right.

And it's like, oh yeah.

Yeah.

People say stuff all the time.

You know, and I got that.

He was, um, state police.

I think he might've been a city cop before that, but you've dealt with people that just

they're yelled things at you or they say things and they're not, they don't mean that

they're going to kill somebody.

And you think he's, he's agreeing.

Yeah.

No, they, they, they, they do that.

People do that.

Um, and I said, like, and prisoners, I mean, you know, prisons are.

Prisons are places where people also say some, you know, some nasty things.

Like, yeah, yeah, they do.

Um, so he's kind of, I mean, again, he's very truthful and that's really what we got.

And then I went into, so, you know, you, you interviewed my client on this day and then

we nailed down the exact date.

And then I got in that there really wasn't much followup that they didn't track down the

people on the other ends of those phone calls.

They didn't go to like, look up that phone number and go after that person.

Um, or, or go to, um, the person, the letter was addressed to, or the address, the letter

went to.

And that kind of played into my whole imminence thing.

Like, really?

Like they, they didn't go, they really thought somebody was in danger of being murdered.

They didn't try to stop it or something.

I mean, they didn't go look around and find out who these people are.

And somebody really was shot.

Yeah.

I don't know if that's because his job was only to investigate what was happening in the

prison.

And maybe another department took the local aspect of it.

But either way, in his testimony, it pretty much ended with, um, yeah, we did these and

we interviewed these prisoners, um, you know, pulled these records and.

Yeah.

Yeah.

Then that was it.

Then the state got worn and made an arrest.

So that's cool though.

You, you've established with the first witness that it wasn't imminent.

And then this witness, you established that what he said, they didn't even take serious.

Cause they didn't even like follow up on anything.

Yeah.

That's the thing.

I think that really came across in, in the interview itself that maybe people expect the

police to be doing like the good cop, bad cop, and trying to just grill somebody.

And they weren't doing that.

It went fairly well on both sides.

Then again, I think the police officers came across well.

They weren't, they didn't come across as bullies.

They didn't come across as lying.

I mean, he seemed like he was pretty, they were pretty objective in their questioning, but

right.

So we got into the content of, of what he was saying and kind of just building that theme

of, you know, trash talk.

Yeah.

So again, he was, he was also a fairly good witness for us.

Cool.

So then who does the prosecution put up next then?

They actually didn't call anybody else after that.

They arrested after those two witnesses.

That's it.

So there's a bit of a backstory to that.

There were some other witnesses that they wanted to bring in, but through pretrial motions,

I was able to keep them out or at the very least limit their testimony to the point where

they'd be.

All right.

Let's, let's tell us about it then.

So the state's witness lists was more extensive than two witnesses.

Um, just as mine was more extensive than the no witnesses I called.

Um, but they had a bunch of police officers from, so again, they're trying to connect dots

between my client and these things that occurred in, um, his hometown.

I guess some random things, things that might've involved people he knew or family members,

that sort of thing.

So they had some cops talking about that, but I was able to, you know, keep those out.

Uh, like they're just not related.

Like he, he was clearly in prison when this stuff occurred.

Um, they tried, again, they tried, uh, calling, or at least they put a, a police officer detective

from a, a gang unit in a, in a particular city.

And they want to make him a gang expert, somebody that can talk about gangs and connect my client

with a gang and also talk about, uh, lingo, you know, the language they were using.

And I was able to keep, um, so I filed motions limiting about that.

Um, that having a witness talk about, um, that this gang activity or members of this gang,

like he basically be giving summary evidence, talking about stuff that other officers,

other witnesses provides them.

And that, that would be a sixth amendment problem.

The confrontation clause of the sixth amendment to United States constitution provides

that in all criminal prosecutions, the accused shall enjoy the right to be confronted with

the witnesses against him.

Generally, the right is to have a face-to-face confrontation with the witnesses

who are offering testimonial evidence against the accused in the form of cross-examination

during a trial.

The right only applies to criminal prosecutions, not civil cases or other proceedings.

Um, because we can't confront these other, these unnamed, you know, confidential sources.

Um, so yeah, the judge, you know, agreed with that.

Like, no, you can't just do that.

Um, nice objection.

Yeah.

Again, as a motion, again, a lot of the trial, like I think most of the trial was one through

the pre-trial objections or the pre-trial motions.

Um, and then they also want him to be able to talk about, you know, try to decode this letter

as to say what these things mean.

And then I crossed again during the, so during the, the motions here, uh, before trial,

I crossed him on his, uh, again, he was an experienced officer and detective.

Um, but you know, he wasn't a code breaker.

I think I asked him if he took any courses in cryptography.

I don't think he knew what it meant.

There's no code.

He's, he's very explicit in what he's saying.

You know, it's not like a, it's not like he's taking the first letter of every paragraph

or something like that.

Right.

Yeah.

I think that was the judge's point that like interpreting language is the job of the jury

that, and I argued that having a witness testify what something means would take that power

out of the jury's hands.

That would be, uh, effectively giving a closing argument from the witness box.

Right.

So they weren't allowed to do that.

They weren't allowed to bring in any.

So they tried to make like a, they tried to make like an officer, like, like an expert

on what this means.

Right.

It's like, no, let's just let the jury decide what that means.

Right.

Yeah.

So that was one thing we were able to keep out.

Um, again, we were able to keep out these other, you know, these other occurrences,

these other crimes or things that occurred, um, you know, in the city that just weren't

really, you know, they weren't linked to him at all.

Right.

There's no link.

Yeah.

So I think the judge actually said, like, I'll, I'll allow that in if you can connect

it somehow.

And they didn't, they didn't have that bridge.

I mean, they couldn't show that your, that your client's the big time crime boss of this

little Connecticut city.

Right.

No, they're like, well, he's, he's not.

So they operates the, you know, Giuliano's pizzeria and does deals out the back or whatever

or, um, right.

They didn't, um, Luigi's, Luigi's pizza.

Sorry.

That's Giuliano's Luigi's.

That's it.

Um, I seem to know Connecticut pretty well.

Um, my office is actually next to a pizza place.

How about that?

Oh, okay.

So, so the state rests, right?

That's it for their evidence.

Right.

So it's time for your time for you to present a defense and your defense is the motherfucking

burden.

The proof is on the people.

That's my defense.

I mean, I was a bit limited in terms of witnesses I can call anyway.

Cause our, one of our whole things was that there isn't any connection with these things.

We don't know who these people are.

We don't know what they thought of it.

And I didn't want to put anybody on the stand that could fill in those holes.

Um, and even though like, what would be the benefit of somebody getting up there saying,

Oh yeah, that's how he is.

He, he says these stupid things.

No one takes them seriously.

I don't know if that really would have helped.

Um, and who knows some of these people might not have been, they might've had records.

They might've had other issues.

Um, and also I've always thought that we know the burden of proof beyond a reasonable doubt.

I think it's, if not the only advantage, certainly the biggest advantage a defendant has.

And I also think that once you start putting on your own evidence, the jury might be inclined

to think of it less as holding the state to its burden and more of doing a balancing act on a scale.

That's like, who do I believe more?

It shifts the focus.

Yeah.

Sometimes it shifts the focus to you and they start doubting you.

And then if they doubt you, the state seems more credible.

So what's the point of, yeah, just let's keep all the doubt on that side.

Let's just be honest.

A lot of people think that us defense attorneys are constitutional and burden.

We're really just lazy.

You know, we're just lazy as fuck.

We don't put on evidence.

We don't want to do any, you know, that's all.

Yeah.

Well, that's the thing, right?

I mean, that's true.

I would have to send out some subpoenas if I want witnesses.

But I also think that just the act of not putting on a defense shows to the jury, hey, we got this.

This is what we think of the state's case.

Yeah.

Another thing, maybe you've encountered this, too.

I also think it might be tough if you put on witnesses and then don't call your client to testify.

Whereas if you don't put on a defense at all, they're not putting anybody on.

I would like that because, you know, I've done it before where I don't put on a defense either.

And then the judge says, you know, Mr. Moore, does the defense rest?

And you say, yes, the defense rests.

But I would like it if the judge would be like, Mr. Moore, are you going to call any witnesses?

And you say, nah, nah, it's okay.

Didn't need to.

Nah.

Like, what?

I can do that?

Nah.

I'm not really feeling like it, judge.

We don't need to waste these jurors' time anymore.

Let's get on with this.

By the way, what has your client been during this whole trial?

What's your client been like?

He was doing really well.

I mean, he had given him an old suit to wear and his mother brought him some shirts and ties.

So he was dressed well.

He was sitting next to me.

I always like to engage my clients.

I think, first of all, he knows a lot about the case.

He and I were preparing for so long.

He knows all the people involved.

He had a lot of time to review materials I was able to send them.

So he and I were conferring a lot during the trial.

I'd say, what do you think I should ask this?

You know, or he'd have a tip or he'd write a note to me.

Okay.

And what about the, so you say the charging, anything special with jury instructions or anything like that?

So you have the typical pattern jury instructions about circumstantial evidence and testimony and the burden of proof.

One, I did request a specific instruction, and that was based on some of the research I had done on the case law.

And that was the language of the statement itself must be likely to cause such injury to occur.

So it wasn't part of the statute, but there was a case that mentioned it.

And I was able to get the instruction in the way I wrote it.

So you guys do, you guys do closing arguments out there though, right?

Yeah, we do closing arguments.

All right.

How does that go?

What was the prosecution's closing argument like?

It was, so that prosecutor, again, somebody I tried case with before, but he's a good prosecutor, a good guy.

So I always liked working with him.

He's more dramatic than I am.

Okay.

I'm not one for histrionics, jumping up and down and shouting.

I tend to have a pretty even measured approach.

And that's my style.

I don't think I can, I don't think I would believe it if I were just jumping all over the place and pounding the table.

I'm not that kind of guy.

A lot of prosecutors that I've encountered.

Well, first of all, the prosecutor gets the first introductory closing and then he gets the rebuttal.

And a lot of times the first one is the, thank you for all to serve on this jury.

You've undertaken a very important civic responsibility and your time means a lot to us here.

And that's usually what they do.

His was a little like that.

He got in a bit with the facts and just, you know, this is what, this is what it says.

He was trying to, he got mad because his brother got shot.

He wanted to get revenge.

He wanted people to carry out his orders to kill this guy, you know, mentioned the name that was in the letter, anyone in his family.

And, but good thing he got caught before that happened or something like that.

And I actually objected to that.

Like, all right, this is just playing out of motion here.

And the judge just kind of did the, well, I'll let it go, but you know, you watch yourself.

And then for my, you know, my argument, I mean, I opened it with the line, all talk, you know, that's what this case is.

It's all talk.

It's no action.

There's no, no one was taking these as serious threats.

I used a few analogies on reasonable doubt in my case about, I usually, I like sports analogies.

And I used one about, I think I used bowling that you have to knock down, the state has to knock down all the pins.

They have to knock, if each pin is a reasonable doubt, they have to knock down all of it.

And what's reasonable in this case is reasonable that this person was just upset upon hearing bad news, was powerless to do anything because he was locked up.

And he just said some things and wrote some things that there's nothing imminent about it.

And also that none of this was likely to cause a result that the people, when you listen to the calls, the people who hear it, don't, don't respond with, oh yeah, yeah, I'll take care of it.

The guy just went and continued talking.

And then there wasn't really any follow up.

He had plenty of phone calls after the calls that were in question.

And there wasn't any question like, Hey, did you take care of that thing for me?

You know, the thing, you know, nothing like that, nothing like that.

Um, there weren't any letters that he didn't know the letter had been intercepted.

There was nothing after that.

The police never tracked down the people at the ends of these calls.

Like we don't know who they are.

Um, we don't know if he was talking to some, to an actual killer or anybody.

Like, it seems like he was talking to his mother and his brother.

We don't know anything about them.

That's really what I focused on.

You know, just hammering away at that eminence requirement, that likelihood requirement.

So then, uh, how long did the jurors deliberate for?

Not too long.

We must've, it must've, the case probably went to the jury at around noon or maybe a little

later at one o'clock is the court lunch break.

So it was definitely before lunch.

That was when the marshals that we heard the radio saying, there's a verdict.

I was like, okay.

And then some people are saying, Oh, that's good.

It's quick.

And I said, all right.

I hope so.

Sure enough.

We, you know, we went in and, um, I'm not guilty on both counts.

All right.

Congratulations.

Uh, how, how the client react?

He was happy.

Yeah.

Yeah.

Said, thank you.

And shook my hands.

His family was quite happy.

Well, Chris, congratulations.

Good job on your case.

Uh, so why'd you become a defense attorney?

Why'd you get into this game?

I mean, I got into law, became interested in quite a, quite a while ago.

My father's an attorney.

So I grew up, you know, same way.

I guess a lot of people share trades with their parents.

Um, I was exposed to it at a young age.

So I always knew what, you know, about court and what attorneys do.

So that's how I first got exposed to law.

And just growing up, um, you know, in high school, I was really into government and

civic activities.

I did all of debate and mock trial and model Congress, whatever we had in school.

I was just interested in the legal process and the politics too, at the time, and how

we have laws and rules that must be followed.

But it's not just the people that have to follow the rules.

It's also the government that has to follow the rules.

It's the police that have to follow the rules.

And while the police and the state enforce laws, well, who enforces the laws and rules

against them?

And that's us.

You know, that's, that's people, but it's also lawyers who represent the people.

I like that.

Like, you know, we got where the checks and balances, you know, we, we keep the, those in

power and check.

So we try to.

Yeah.

I think so.

Um, we have to do it.

Somebody has to do it.

And yeah, that's, that's, that's, that's why this is something that I like doing.

I mean, I just threw it throughout school.

I always learned again for my, I think for my parents too, you know, the question authority,

just ask why a lot.

You're like the philosopher.

Yeah.

Well, why?

Why?

I wouldn't get picked for either, but right.

You know, question authority.

Um, and do what's right.

Just because something is the law doesn't mean it's right.

Well, thanks for being on the show today, Chris.

I appreciate it, buddy.

It's great.

Anytime.

Thanks for contacting us all the way over here in LA.

It's cool to hear.

Be in touch with my fellow defense brothers on the, on the East coast over there.

So.

I come by sometime.

You could have some pizza here.

That's one thing.

Yeah.

Go down to the Luigi's, huh?

Yeah.

Be right there.

So yeah.

I mean, I'll let you know when I have another not guilty.

Yeah.

So then I'll just keep listening.

All right.

I appreciate it, Chris.

Take care, buddy.

All right.

You too.

Have a good day.

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

Shout out to Daniel Mark, original A and 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.