Race, Guns, & Subway Sandwiches – When a Jury Says "Not Guilty"

What's up, my A&G-ers? Here we are with another dope episode featuring the amazing team at the

Public Defender's Office in Monroe County, Indiana. Yep, the best part of this podcast is being able

to connect with other amazing individuals all over the country, united for a single cause to help

and represent those in our community who are disenfranchised, marginalized, and dehumanized

to provide a scapegoat for those in power that want to maintain the status quo and keep us all

enslaved mentally and even physically for some of us. Keep fighting the good fight. Oh, one last

thing. Special thanks and shout out to Matthew Killegru for editing the episode. He edited this

audio version and also go to YouTube and this episode will be video published on YouTube. So

this will be the first time we've published an episode, another Not Guilty episode on YouTube.

So check it out on YouTube. Hopefully the YouTube channel is something we can build. Thank you,

Matthew Killegru again for editing everything. Love you all.

The coolest part of voir dire was actually about the all-white veneer. We like, at one point we stood up and we're like, you know,

looking around this room, it looks like Sean's gonna be tried by an all-white jury. Like,

does anyone have strong feelings about that? And it was a, like, I'm Spartacus, like, moment kind of. Like, there were,

these juries were like, juror number 14 has a problem with that. Juror number 16 has a

problem with that. Juror number 21 has a problem with that. And it went, like, probably 14, 15 people

through, like, the whole veneer. And so there was a guy who was in the, in the panel and he goes, like,

yeah, I've got a question for the attorneys. Like, is it even legal for this man to be tried by an all-white

jury? We're not his peers.

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 the deck stacked against us.

We're not guilty. We're recording and welcome back, everybody. It's your boy,

Davey D here, bringing you the freshest not-guilties across these United States of America. One not-guilty

at a time. And of course, they happen anywhere across these great states. Today, we have an

awesome show lined up for you today. But first, let's introduce our all-time favorite A&G co-host,

guys. The hottest rising star in the Another Not Guilty sphere. We have Lauren with us today.

What's up, Lauren? How you doing?

What's up, guys? I'm glad to be here. Looks like I'm holding it down for the ladies in this group.

No, no, Lauren. You're here for your skill set. Because you're qualified.

That's why you're on the podcast.

I'm not the token on this episode.

No, no, no. We would never. We would never.

Oh, don't be silly.

Thanks, guys. Thanks.

But anyways, guys. Yeah, I am here to be excited to introduce

our first guest. Our guest today was one of the first Another Not Guilty fans I ever found out

about. You guys know, you may remember him from season two, Confidential Misinformant. He was not

on the show, but he was right there on the sidelines cheering on the Indiana public defenders of that

time. But now he's back with his own Not Guilty guys. Say what's up to Kyle. What's up, Kyle?

Hey, thanks, David.

Yeah, that sounds good.

Wait, so this is your first time as a guest?

This is my first time as a guest, yeah.

Okay.

You know, we almost, a couple of years, like two years ago, Kyle reached out to me and we

almost recorded another one he did. But we just, for some reason, I don't know just what happened.

It just fell through. But Kyle, you know, as any public defender, he's resilient.

He keeps on pushing. He's back with another one. So I'm glad you kept your back here today,

Kyle. Good to see you. And Kyle, you have a team with you today. So why don't you go ahead

and introduce your team?

So we're from the Monroe County Public Defender's Office. It's in Bloomington, Indiana, home of

Indiana University and the IU Hoosiers. I have with me my co-counsel on the case, Noah Williams,

who is a recurring guest on the pod. And then our ace investigator, Chris Saunders. There was

one other attorney who actually worked on this case, was co-counsel with me as well. He has

moved on to Greener Pastures and left our office.

Oh, okay.

There are no greener pastures outside of the Public Defender's Office. Come on, man.

There's no greener pastures. There are other pastures, but they're certainly not greener.

That was me being really political. He has resigned to a life of meaninglessness.

And he no longer is fighting the state and freeing people from the state.

Oh, he got promoted to management. Nice. Nice. And that's actually, guys, Kyle's right. We

got Noah here, too. Noah was from Confidential Misinformant, too, in season two, along with

Amy. Right, Noah?

Yes. I appreciate you having me on.

Yeah. Welcome back, Noah. And say hello, Chris. Welcome to the show.

Thank you for having me.

Behind every not guilty is a good investigation. Am I correct, guys? Amen. Amen to that.

Amen. Truth. Amen.

Truth. Amen.

Amen.

You know. So, Kyle, you reached out to the podcast. You wanted to share this not guilty you had

recently. Tell the A&G sphere, what was your client charged with?

Client was charged with attempted murder, which in Indiana is a level one felony. It is the highest

designation of offense other than murder itself. It carries a penalty of 20 to 40 years. The

minimum for that 20 is non-suspendable, so you can't get it put on probation. You've got

to go for the 20 at least. Anything above 20 can be suspended. But in Indiana, you do three-fourths

of it at that level. So, the minimum possible sentence would have been 15 years real in the

Department of Corrections.

And is there stuff that elevates it to 40 years? Is there, like, sort of, like, little factors that

aggravate it, I guess?

We don't have... We have statutory mitigators and aggravators, but the court's not bound by them.

Court has pretty wide discretion within that range of what they want to do.

Okay. And so, your client's charged with just one count of attempted murder?

Yes.

Okay. And what did the police allege he did? What were the prosecution facts in this case?

State facts, which were also widely reported once news outlets in the area got a hold of the

probable cause, the initial probable cause affidavit are, nice man...

Media case.

Yeah. Nice man goes into a Subway sandwich shop. The Subway employee who is working and

making his sandwich becomes so angry that the man parked illegally in front of the Subway store

that he chases him out. The man leaves the store peacefully and the client, Sean, chases him outside,

prevents him from getting to his vehicle, stops him from leaving the property, and then shoots him in cold blood

to kill him.

Okay, whoa.

Because he parked illegally outside the Subway. And that's it.

The client works for Subway.

Correct.

So, he's like making sandwiches and a little hat and a little apron and decides to chase somebody out and he just had a gun with him.

I've never been to Indiana. Is that common?

Like sandwich makers just pack guns in their pocket or...

Before we started, voir dire, I looked up our firearm ownership and it's like 44 or 45% of Indiana adults own a firearm.

So, I was like, we at least are going to have like four, three, four people packing heat on this jury.

But I will say that, you know, in our state, in Indiana last year, they, we became a constitutional carry state.

So, we did have a requirement to carry a permit to carry a firearm.

Our legislature was like, nah, just everyone can have a gun all the time.

Oh, Indiana and Texas. Here we go.

So, someone got mad. This is the prosecution version, right?

Somebody got mad.

Correct.

Who got mad and left?

State's version is basically that our client and the alleged victim got into a dispute because the alleged victim illegally parked his truck in front of the subway.

And then that this argument over the illegal parking spot escalated to the point of this shooting.

And so, that's also why it was kind of a media story.

It's easy to, you know, it's like parking spot dispute leads to murder.

Did he get his sandwich before he left?

No. So, this dude didn't even order.

This guy stormed out.

Yeah.

Asking the right questions, though, I feel like.

Yeah.

It's important to know.

Sandwich in hand.

Have you told us the races of your client and the...

Young black male is our client, 22 years old.

The alleged victim was an older white man in his 50s.

Okay.

And in Indiana.

Correct.

Okay.

So, okay, Kyle.

So, you get this case.

It's an attempted murder.

The serious of the serious.

Client's like a 20 to 40.

You see the police report.

And I imagine you go meet the client, right?

He was, like I said, I really like him independently of our representation.

He was just always a great kid.

You could tell that he had gone to this military-affiliated, like, job corps.

He was incredibly respectful.

And just went out of...

Called you, sir.

Yeah, a little bit of that kind of thing.

He had...

We were lucky he was pretty consistent.

He, the entire time, you know, his biggest concern was getting back to his family and getting out.

So, really, like, the beginning of the case, we tried really, really hard just to get him out of jail.

Can you tell us what he said about the incident, though?

Yeah.

So, he gave a statement to police that was pretty much consistent to what he told us, too, though.

Okay.

What was that?

What did he tell you?

So, Sean's story is that this guy walks in, he goes up to make him a sandwich.

I stand in there, and this guy, basically, Sean goes, sir, I'm sorry, but you can't park your car there.

And this guy's like, what are you, a fucking cop?

The fucking parking police?

He is irate when he comes in.

And you can, this kind of pans out.

You can see it on the video.

But, so, he tells this guy, what are you, the fucking parking police?

I'm not even going to fucking eat here.

And so, he storms away from the counter.

And Sean's like, cool, good, you know?

But then he comes back to the counter again.

He, like, gets to the door of Subway, turns around, comes back, and then he tells Sean, like, you need to get your ass outside.

So, then he storms outside, but instead, he doesn't go to his car.

He goes behind the subway.

There's, like, an employee-only area behind the subway that has, like, their CO2 tank for their sodas and stuff, like a dumpster, and then a back door that comes, like, into the subway from the back.

And instead of leaving and going to his car, this guy goes back there and waits.

Is Sean working alone at this point?

There is one other employee at the store who's a high schooler, who's also a person of color.

But, yeah, Sean is in charge of the store.

The other kid who was there was, like, 16.

So, this is happening during daytime?

It's, like, 1230 p.m.

And just to give a little bit more context, too, it's, yeah, sorry, it's just, you know, so you guys could kind of paint the picture.

The subway is on a corner, so you kind of have, like, the see-through of the front, and then you can see out the side, and his vehicle's on the side, which Sean can see when the gentleman kind of, like, pulls up.

He's already blocking, and then sees him walk around, comes in, and then also sees the gentleman, when he's exiting, kind of, like, walk past his car and walk towards the back, which then kind of, like, triggers Sean to want to, like, be inquisitive as to where is this disruptive person going.

So, maybe this is a dumb question, but why didn't Sean just lock the doors when he, the other guy, walked around back?

All right, detective.

That's exactly what he asked.

It seems like a real easy way to avoid trouble, no?

That's essentially the state of the case.

Yeah.

This guy, can we give him a name, the complaining witness?

Yeah, let's call him BJ.

Jay?

What are we calling him?

Okay, we'll call him Jay.

We'll call him Jay.

Okay, so if I'm tracking this properly, Jay comes in, he's illegally parked, blocking traffic, and being an asshole, and tells Sean, come outside, basically, like, hey, come fight me.

But there's, he doesn't reach for him.

There's no additional threatening facts, right?

No, correct.

And so then your guy, Sean, is like, I will take all five foot four of me and go out and see this giant construction guy in steel-toed boots.

Yes.

And I'm assuming that's when Sean grabbed the gun, unless he really did have it tucked into his apron.

Facts are a little worse than that, even.

Oh, good.

I love it when they're even worse.

Let's go public defenders.

When the guy says, get your ass outside and walks behind the subway, Sean did not have his firearm at that time.

He goes back to the employee area in the back, takes off his shirt, gets a backpack that has a gun in it, and walks outside with the backpack.

All on camera.

Shirtless.

Oh, Sean.

He takes off his shirt.

I like.

Did...

That's what you do when you get ready to fight.

Did Sean...

That's my least favorite fact.

Did Sean make a statement to the police about taking the gun out with him?

Yes.

What did he say?

So...

If my memory's correct, when the cops are asking him about it, and the interview really devolves because of the way the officer's conducting himself, Sean says that he takes it for protection.

He does not want to fight this man, but he goes out there with the intention to trespass him and tell him he needs to leave the property.

And really, he's worried that the guy is going to be so irate back there that he's going to damage the subway property, which will cause him to get in trouble, or he'll come in through the back door of the subway.

And, like, attack him or the high schooler who's there.

And so he says his intention was to go out there, tell the man you need to leave, make sure that he leaves and gets in his car.

But in the event the man would have attacked him, he wanted to be prepared.

And my memory is the gun is not for subway.

It's for the walk to subway and back, which is through a little bit of a rough part of town.

Yeah.

Okay.

Oh, so he just carries that.

Yeah.

Is it legally...

Does he legally carry it?

Yep.

Okay.

Well, it's Indiana.

Yeah, that's what I asked.

Maybe anyone can carry it.

We covered it.

So did Sean call the police, or was there security for the strip mall or anything?

He could have asked the high school kid to call and alert them that there was a problem?

There's no security.

He probably...

So he did not call the police.

Basically, Sean walks outside.

They walk outside the view of the camera.

Sean tells the police that the man attacked him, shot him, drew his firearm from his bag, fired one time at the man's chest, and then Sean leaves.

He lives about like a half mile away from the subway, and he does walk through this kind of like high crime area.

So he ran to his house.

So he didn't even call the police after he shot somebody?

Mm-hmm.

He didn't call for help.

He just shot someone in the chest and said, I'm out.

All right.

Any other bad facts you got for us here, Kyle?

But here we go.

Listen, because Lauren's asking all these questions, and this is the tough part with a jury on a self-defense case, especially murder.

Like, jurors always do, like, what could they have done differently?

He could have locked the doors.

He could have called the police.

He could have this.

He could have that.

But what's the law on self-defense in Indiana?

It might be different from California.

But I know we're pretty...

Ours is pretty good.

Ours is like Florida.

So it's not too bad.

What's going on in Indiana?

So Indiana has a sexy, robust self-defense statute.

Sexy.

Let's hear it.

The legislature is basically, you know, in enacting this, we recognize our Hoosiers' broad rights to protect themselves and their property from harm.

A person...

So a person is justified in using reasonable force to terminate, like, an unlawful trespass or to protect themselves.

And a person is justified in using deadly force to prevent the...

Basically, if a reasonable person in their shoes thinks it would be necessary to prevent the commission of a forcible felony or to prevent the infliction of serious bodily injury.

Sean, describe what happened right before he shot him.

The guy attacked him?

He said the guy attacked him.

So how?

Yeah.

So he says that he walks out there, approaches him, says, you need to leave.

Basically gets back there and as soon as they're in the dumpster area that the guy rushes him and kind of like bear hug grabs him.

And then...

So he actually made contact.

He got his arms around him.

Sean is not saying he shot him before he grabbed him.

Correct.

Okay.

So then what?

Did Sean approach him with the gun out already?

Was it in the backpack still?

No.

In the backpack until basically right up until it was fired.

Sean has his backpack on the front like a kangaroo pouch, so to speak.

Either in one hand or on his front.

For easy access.

It's not on his back.

That's the point.

Go ahead, Noah.

Sorry?

It's not on his back.

It's definitely on his front somewhere.

Okay.

So the pouch is on his front.

The guy rushes him.

And what happens next?

Sean says he pulls his firearm, fires one time.

The guy drops but then gets back up again.

And then Sean runs away.

Runs home.

Great fact.

So he shoots him while Jay is holding him still?

Like it was that close?

You know, it was still...

This is all fuzzy and we kept it fuzzy.

Okay.

I'll bet you did, Kyle.

I bet you did.

So then who does call the police?

So it's like a crowded parking lot.

They are...

People respond immediately who hear the gunshot.

They see nothing leading up to the gunshot.

There's no witnesses who saw what happened prior to the shot being fired.

But there is an off-duty EMT, actually, who's in the grocery store parking lot.

He comes over and renders first aid to Jay.

Jay calls 911 himself but then gets so mad at the operator that he hangs up on her.

So...

I want to know more about this.

I want to know more about this 911 call.

It's basically just him, you know, he says, somebody shot me.

It's like a black guy who works at Subway.

And then he gets...

She's like, you know, where are you?

Who are you?

And he's like, gosh, he's asking all these dumb questions and like hangs up on her.

Oh.

And then later, like tells...

I think he says that maybe in the police interview, too.

It's just like, I tried to call 911, but they were just asking me all these dumb questions.

Did he speak like where they could find him?

Yeah.

All right.

So then that's the state of the case, right?

As you get it, right?

Okay.

Yes.

So let's talk about the development of the defense, though.

Where do you go from there?

So there was a real...

There was basically no police investigation, really.

What happened was, you know, the employee who was there had Sean's...

The high schooler had Sean's address and his contact information and everything else.

So the police show up very shortly.

They talk to Jay, who's on the ground there.

They give him some first aid, too.

He goes off to a hospital.

And then, you know, they're like, who was the guy who was here who shot him?

The other employee gives him Sean's address.

They go to Sean's house, which is like a half mile away.

Sean surrenders himself.

He goes with police voluntarily to the station.

He gives a statement.

And so the detective who interviewed Sean interviewed him without watching the surveillance.

He didn't listen to any of the 911 calls.

He didn't talk to...

There was a witness, another witness inside the subway.

There was a family who was dining while all this happened.

And so there was a, like a husband and wife and their child who was eating in the subway.

And so this was actually Chris, like, knocking out of the park a little bit because we got to be so far ahead of the state.

Like, this guy, the guy who was eating in the subway called 911 and gave a detailed account of everything that happened.

And then he was like, here's my name.

Here's my phone number.

Please call me if you have any more follow-up questions.

So in Indiana, we get to do pretrial depositions, right?

We can, like, subpoena people and just take these sworn recorded statements before trial.

And so it was when Chris just listened to the 911 call, found this guy, called and talked to him, got his statement, you know, for us ahead of time.

And then when we did the deposition of the detective, you know, we were like, did you ever talk to that guy who was in the subway?

He's like, no, he couldn't be found.

It was impossible to find him.

We checked to see if he, his credit card was on file for buying their meal, but they paid cash.

So he's on, he's unfindable.

And then we were like, oh, did you listen to any of the 911 calls?

He's like, no.

He's unfindable if you're not looking.

Yeah.

So, so it sounds like you got Chris support, Chris on the case, doing some investigation, right?

Chris, you interviewed.

Yeah.

Do you want to talk about what he said to you, Chris?

Because you interviewed him.

So I called, so I called him, I called him on the phone.

I kind of was just like, hey, Mr. Ball, like, you know, my name is Chris Honis.

I'm an investigator.

You know, I'm sorry that you, you know, witnessed this event.

Like, you know, would you be willing to talk to me?

And he actually was very forthcoming and saying, yeah, this guy came in.

He was being very aggressive with the worker.

You know, I particularly didn't like the quality of the subway sandwich artist, but, you know,

it all kind of happened quickly and I got my family out of there.

Was now, was that, I didn't like the quality of the sandwich artist.

Was that in response to a question you said, or was that just, he just volunteered that?

He, he volunteered information.

Yeah.

He wanted to make, he was very, even with his 911 call when listening to it, it was very

detailed, even so much that as he was leaving the scene while on the phone with 911, he managed

to also take a picture of the, you know, the alleged victim, two photos that he then shared

with me.

The guy who now has a hole in his chest.

Yes.

He stopped to take a picture of that on his way to getting his family in the car.

Yeah.

Drive, drive by cell phone pic.

Yeah.

Drive by cell phone pic.

And also tells 911 that he doesn't want to get in trouble for being on his phone while

driving and being on the phone with 911.

Who is that?

You know, maybe MacGyver's cousin or something.

I don't know.

There was a lot.

Thank you.

I appreciate that you have the same question I had.

I thought the really important, I thought the really important part that we got from him

was he said that he never heard Sean use any profanity to Jay.

He never heard Sean raise his voice.

He never heard Sean threaten Jay, but he specifically remembered hearing Jay tell Sean to get his ass

outside and that Jay was the one who was being aggressive, basically was like the initial aggressor in the situation.

And that was his take.

And I know you mentioned some video surveillance.

So you did you gather or were you able to collect a lot of video surveillance, Chris?

Yeah, we were lucky enough where, you know, as technology is evolving, it's getting like more and more complex

where sometimes investigators are able to just run into a place and just put a thumb drive in and get it.

And then some people don't want people digging in their, you know, DVR.

So they're doing screen grabs of, you know, multiple cameras that you then have to zoom in.

So that was kind of what we were dealing with, where they gave me a screen recording of all of the cameras of the subway location.

And, of course, there was no camera outside.

And was there a particular video or screen or about that stood out to you, a particular snapshot of something that really you thought was good or bad?

Yeah.

So, you know, we had the bad one of like, you know, seeing the back shirt off, grabbing book bag.

But we did have the front camera, which showed Jay kind of like, come in, leave, come back.

So that's a very different story from what he chose to say.

And also the camera facing the side where his car was illegally parked, showing that he walks past his car,

which, again, also is, you know, conflicting with what he initially said, which was,

I went straight to my car and would stop from leaving.

I'm assuming that all of the surveillance video from Subway does not have sound.

Correct.

Correct.

So did you talk to the poor little high school student that Sean abandoned with the crazy guy?

So oddly enough, I went to his house and his father kind of like ducked them from me.

So they were able to speak to him during the depositions.

But before that, it was kind of like a no go.

We're just leading up to investigate the depositions at this time then, right?

So tell us about the depots.

How'd those go?

It was interesting.

We had a really quick turnaround time for this trial.

The court had an automatic setting.

This happened in July of last year.

And they set us in October.

So it was three months turnaround.

And because Sean was in and we weren't able to get him out of jail and, you know,

his kids were like taking their first steps and stuff like that while he was in,

we really were trying to, you know, never, not go to trial, not prepared, but at the same time,

like get it together as quickly as we could.

And so we set kind of a fast deposition schedule.

I would say that this was one of those weird cases where everyone testified at their depositions

basically the same way they testified at trial.

There weren't like big surprises.

Did anybody say anything that jumped out at you during these depositions?

No, it was interesting to find out for sure that no one had seen what had happened.

That was like a total only Sean and Jay.

Jay's deposition was wild.

Okay.

Basically, he gave an interview to the detective too later in the presence of his wife,

like being coddled by the detective for like 20 minutes.

And he's just like, everything was chill.

We never had a fight.

This guy never threatened me.

This guy never cussed at me.

I never cussed at him.

I never told him to go outside.

I left and was just going to go get in my car and leave peacefully.

This guy came out of the back door of Subway and shot me for no reason in cold blood.

Liar, liar, pants on fire.

So the jury doesn't know what happened, but they will know that didn't happen.

It's sort of where we settled on his story.

So was he aware of the video surveillance at this point when he testified to this at the deposition?

I don't remember if we asked him or not, but no, I don't think he ever saw it or anyone ever showed it to him.

I think he is not that dumb.

He wasn't aware that the video surveillance would completely contradict what he said.

I think that's right.

Jay is just completely lying about everything that happened.

Doesn't really give a clear picture of how he got shot because it's a lie what led up to the shooting.

So he's not saying anything that's going to help the jury.

Nobody else saw the shooting.

There's a family that's present that's saying, like, yeah, I mean, they weren't the best sandwiches, but it was something worth getting a fight over.

That's really it.

The EMT shows up later.

We got the 911 call where he's irate and yelling at the 911 operator.

And that's kind of your case.

Yeah, so when you're going into this, sort of what is your theory of self-defense you're planning on before the trial starts?

I think that one of the major themes that we had to deal with in trial and deal with was that being prepared for a fight doesn't mean that you're agreeing to fight.

And so, or wanting to fight.

And so, being smart, like, being ready if someone attacks you does not mean you are consenting to a brawl.

Our intention was going to be, we anticipated that Sean would testify, talk about how he was scared of this man, but also felt a sort of, like, concurrent need to make him leave the property.

And whether that was right or wrong, or wise, that was another theme that we kind of tried to build through it, is that the law doesn't necessarily require you to always do what is wise or what is smart.

You don't have to necessarily be the best.

It's also really easy in hindsight to look back and say, oh, well, you could have done this and that, and that would have been a better way to de-escalate the situation.

But, you know, in that moment.

Speaking to the high school student, did he say that he was afraid of Jay?

I don't think we asked him at the depot.

At trial, he testified that he was not afraid.

This is kind of, I mean, just curious, did Subway get involved at any point?

Like, I mean, this guy kind of shot someone while working for Subway.

So?

Was he acting within the scope of employment, or what?

Did they disown him?

There is kind of, like, this famous personal injury attorney in our area who has, like, the bus benches and the billboards and all that stuff.

And so Jay hired this man to sue the Subway Corporation.

As you would.

You know, because obviously Sean shooting this.

Didn't have any money?

Yeah.

Sean is named as a respondent.

But obviously, they're going for that, you know, that Subway money.

And so, yes, there was a co-occurring civil lawsuit where Jay is trying to sue Subway for monetary damages.

Interesting.

All right.

So then let's, and there's no chance of selling the case then?

Or was Sean trial all the way?

Or the state, were they, like, 40 years all the way?

Or there was no?

So they offered him essentially nothing.

They offered him 20 years.

They offered him a plead guilty as charged for 20 years executed.

Which I thought, I was, you know, pretty upset about considering the facts as we knew them and Sean's history and just kind of his character.

What were you hoping for?

At one point, we offered them to plead open to a level 5 felony, which, I can't remember, maybe battery with a deadly weapon, which would have carried a range of 1 to 6, but all of it could be suspendable.

If they'd offered that, probably would have advised Sean to take it.

And he was, he was fairly, like, he was a reasonable, he's a reasonable, risk-averse person.

He understood kind of the danger of what was happening.

In a way, while I think it was despicable, in a way the state refusing to offer him anything was kind of a silver lining because they made it so that there was no reasonable alternative than trying the case, which obviously panned out well.

That's nice when you don't have to, like, stress out about this sort of, like, you're so close, you're so close, and you're trying to get people to bend.

Yeah.

All right, so then let's, um, let's talk about, uh, what's the prosecutor like?

Has it been the same prosecutor you've been dealing with the whole time on this case, Kyle?

Yes.

Great guy? Gal?

Well, I liked the way he said yes.

Yes.

So, I think what I'm willing to say is that I think even among prosecutors, this prosecutor maybe doesn't have, like, a sterling reputation of diligence, necessarily.

He is a perfectly likable guy.

I get along with him fine, but it's one of those things that's going to be hard because you just know that he's not going to, like, in the months leading up to this trial where I was, like, meeting with Sean in the jail and stressing about this and everything, he, like, had not thought the case was not, like, in his universe, you know?

And really, it was only, like, I feel like a lot of our practice is just trying to force them to, like, look at the case and think about it.

I feel like this comes up in every one of these episodes we record where the public defenders are, like, goddammit, you're trying to put this person in prison for a long time.

Maybe fucking look at the case.

Mm-hmm.

Yeah.

Especially.

They've been arrested, so clearly they did a crime, right?

Yeah.

They're clearly guilty.

Well, and, you know, it's weird because, like, honestly, this has been an interesting experience, this podcast, because I never had the impression that when we started doing these facts, I always was kind of like, I didn't hate the case ever.

I always thought it was okay.

And maybe to them, you know, some other people in my office told me, like, the prosecutors think this is a slam dunk.

And so maybe that is why he's, like, you know, fuck you, like, I'm not offering you anything, I don't really have to talk to you, because he's just, like, he walked out and shot him in the chest.

Like, I don't have to think about this.

But especially after, like, the depositions, there were a couple times where I wanted to have in the file, like, an email that I sent near, maybe, like, a week or two weeks before trial, just being like, hey.

You know, I think you're trying to do this wrong thing.

I think that, you know, Jay lied about everything that happened.

And I don't think it will pan out.

And I think there are reasons that you should consider giving this person, like, some consideration or an offer he could live with or something.

And they just said, no.

Actually, it was worse.

He made us a fake offer.

He made us an offer.

And then, like, later, and I can't even remember, it was still pretty shitty.

I don't remember exactly what it was.

But then he called later and was like, never mind, I talked to Jay and he's not on board, so never mind.

Oh, man.

That was a fake offer.

We did get a fake 10 to 12-year offer.

Yeah.

Yeah.

Hey, did you consider speaking to an expert who could talk about the trajectory of the bullet and anything to show that Jay was actually holding your client, that he was attacking your client at the time that he was shot?

We didn't use an expert, but we got that.

Just through, okay, so when we deposed the EMT, he responded.

He's like, I'm still in college, but I've done a little ballistics training.

Nice.

Oh, no.

Like, in one of my classes.

And so we're like, okay, man.

I've watched CSI.

I'm qualified.

I was like, what do you know about this?

And he's like, well, you know, the entry wound is higher, like, basically in the pectoral muscle, and the exit wound is lower on the back.

And so, basically, the bullet traveled at a downward trajectory.

And so that actually kind of became big for us, because later we talked about how Sean is significantly shorter than this guy.

So the only way the bullet could do that is if that guy was pitched forward, like he's bull-charging.

Like he's lunging at him.

You know?

Lunging.

Yeah.

Is, like, about the only way, unless Sean was, like, holding the gun up.

Yeah.

You know?

Yeah.

And so we didn't use an expert for that, but we did get it.

And jurors talked about it.

I'm sorry.

Is the prosecutor present for these depositions?

Well, what do you mean by present?

Well, physically.

Yeah.

Okay.

Okay.

So the prosecutor had the opportunity to sort of hear all of this evidence to support what you were just saying, your claim, that this case maybe deserved the prosecutor to take a look at it and maybe come up with an offer that would be good for your client.

But it all just went through in one ear and out the other.

Yeah.

The prosecutor.

Okay.

No, that tracks.

Yeah.

All right.

So let's talk about jury selection then.

Tell us about jury selection and how it went down.

We had fun topics.

You know?

We're here.

We're like, we're going to talk about race, guns, self-defense, subway sandwiches.

It's getting more American than that.

Like all these, you know?

Like hot button issues.

Race, guns, and subway sandwiches.

Let's go.

Yeah.

It's true.

It's really true.

You know, it's interesting.

Like I think I tried pretty hard to be like, you know, this sucks.

Like it's going to be hard.

Like if you own a gun, you don't tell people about it because people steal guns or they judge you for having guns or they think you're a maniac for having a gun or that you become a target if you own firearms.

And so like I know there's people in this gun.

And so like I know there's people in this room who have guns who don't want to talk about it, won't say it to a room of strangers that they do or have feelings about it.

And that kind of worked as a good segue into talking about race, too.

The coolest part of voir dire was actually about the all-white veneer.

We like at one point we stood up and we're like, you know, looking around this room, it looks like Sean's going to be tried by an all-white jury.

Like does anyone have strong feelings about that?

Oh, you just asked it outright.

Yeah.

And it was a like I'm Spartacus like moment kind of.

Like these juries were like juror number 14 has a problem with that.

Juror number 16 has a problem with that.

Juror number 21 has a problem with that.

And it went like probably 14, 15 people through like the whole veneer were like I want to have my turn to say my piece on this.

And so there was a guy who was in the panel and he goes like, yeah, I've got a question for the attorneys.

Like is it even legal?

For this man to be tried by an all-white jury, we're not his peers, you know, is this.

And so I was like, well, I can tell you that the courts have found that it is permissible for a black man to be tried by an all-white jury, you know.

And so they're like, rabble.

And then, you know, the state, you know, the state's like, and everyone knows it's not my fault.

Like I don't pick the veneer, right?

Like I'm white.

My co-counsel's white.

The judge is white.

You know you're not going to judge me, though, right?

Like this wasn't my fault.

I agree with Mr. Duggar.

It'd be cool if there were some people of color here.

But like, you know, don't.

That'd be cool.

Yeah.

Like don't hold it against me.

Stop it.

And don't be mad that we're going to strike all the people of color that are.

And then every person who said anything that was remotely racially like woke, gone, you know, at the same time.

So the prosecutor struck all the jurors that were sympathetic to the fact that there was no people of color on the jury, right?

All the people that were upset.

Yeah, who were vocal about it.

Did he justify it somehow?

What did he?

Well, in the language the prosecutor chose to try to disqualify people for cause, he goes, now if I'm hearing you right, it sounds like I'm going to be starting off a little bit behind, you know, Mr. Duggar and Sean over there.

I'm going to have to do a little more than they would have to, and I'm going to be behind.

And then the guy was like, yeah, I think so.

And then he'd go up and be like, I'm going to strike this guy for cause.

And it was kind of my co-counsel who left office was like, that's an accurate statement of the law.

He is behind.

You know, he is behind.

The burden is on you.

He does have to do more.

He does, you know, like that juror correctly stated the law.

Yeah.

So that was good.

I mean, the judge really didn't, the judge didn't really grant hardly any for cause challenges.

We had to get kind of deep.

Both, both sides basically used almost all the peremptories, I think, to get a jury.

Now, was it obvious, though, that the prosecutor kicked off all the people that were sympathetic?

Yeah.

I don't think we were surprised when we got, I mean, it was people who pretty, there were people who were like, it's not, a black man can't get a fair trial in America at all.

You know, like sitting there and you're like, okay, this guy's, you know, he's gone.

Okay.

Okay.

Let's, let's move on to the opening statements then.

Tell us about that.

This turned out to be kind of like a boon for us in this, in the recorded interview that Sean gave to the detectives.

At one point, he acknowledges this thing.

He says this thing that no one else said.

Like the witness who was inside that Chris talked to, the high schooler who was there, or the victim, all of them, none of them said Sean said this.

But in his interview, Sean's like, yeah, I told this guy, like, you know, I'm going to snap on your ass.

And he's like, I meant it verbally, like, I'm going to chew you out.

But I told him I'm going to snap on your ass.

And so that's in Sean's interview tape.

And we really wanted them to play this interview tape.

And we weren't sure if they would, because he basically lays out his entire defense, and is incredibly likable, and respectful, and talks about having a family.

Like, it was almost nothing but good things in this interview.

And so we really wanted them to play it.

We knew they had it on their exhibit list.

I would have never played it if I was them.

But I think it's kind of like a testament to the state's inability to feel empathy towards, like, one of the people they're prosecuting, like, they'll never find this guy likable.

And so the state stands up an opening and goes, I'm going to snap on your ass.

That's what Sean Rivers said, and that's what he did.

You know?

And so from the, you know, they're basically just like, this poor guy came in.

He was just having a bad day.

Even if he was a jerk, like, you know, Sean shot him, and you'll find him guilty of attempted murder.

Thanks.

It's your American right to disparage a cashier at any sort of place when you're having a bad day, you know?

In the video, the cop's like, yeah, man, like, people are going to come in.

You just need to eat that shit.

They, like, abuse you, whatever.

You just take it.

It goes even a little further than that in the police interview, where at one point, the cop, the detective says, Sean, why didn't you just lock the door?

And Sean goes, why didn't that man go to his car?

And the cop goes, that's none of your business.

He can do whatever he wants.

Which, let's all think about how that sounds in the context of the race of the people involved and what's happening in this police interview.

And the build as well, right?

Where, like, Jay was a bigger white man, and now he has an even bigger white man, you know, towering over him, you know, as he's just trying to tell the truth as to what happened.

And every turn of it, he's being told, no, you're wrong.

No, you couldn't have done that.

No, what you did was absolutely horrific.

And no one is to blame but you.

This statement is in the recording that you were just saying you hoped they played.

Yep.

Mm-hmm.

Okay.

So this is what gave me, so we had a lot of pause and weird things about this video because Sean's portion is fantastic.

I mean, he really is like, I did this in self-defense.

What am I supposed to do?

Let this guy beat the shit out of me?

You know, what the detective literally goes like, Sean goes, it's self-defense.

And he goes, there can't be a man with a hole in his chest and not have someone to answer for it.

Unless he's black.

So the first part of the video, Sean talking is great.

But then the, like, last third of the interview video is basically the detective just shouting Sean down and misstating the law of self-defense.

And I was really worried about that because I didn't want the jury to watch this authority figure who they believe is a competent authority on the law,

misstating the law for them and talking about why our case is wrong.

You know, he's, he basically is just being like, the high schooler didn't get, isn't on trial, Sean.

You know why?

Because he stayed inside like a good boy does.

You know, you're the one who, you know, and like.

Did he call him son too?

It was implied.

He, he really does just, you know, and he changes the, you know, he changes the things that Sean says.

Like Sean would be like, I told this man, sir, you can't park your car there.

And then the, and when he's yelling back at him, he's like, you know what you did?

Like you told this guy, you can't fucking park your car there.

Like he's attributing like profanity and like violent language to Sean that Sean never says.

But I was worried about it.

And so we decided to hit it in opening.

Like my opening, I basically did the day from Sean's perspective.

Like Sean got up with his family.

Sean was just going to work.

Sean was just chilling, like making sandwiches.

You can see on the video that you're going to, that Sean's sitting there.

I forgot this all happened in a subway first.

Yeah.

Listening to music.

Just chilling, making sandwiches.

Okay.

Listening to music.

The, uh, the problem was this guy.

The problem was Jay.

And then I'm like, you're going to see this video.

Um, and you're going to see Sean repeatedly try to explain himself to detective, the detective.

And you'll see the detective refuse to hear him and do everything he can to paint Sean as the

village, uh, villain and shot him down.

And then that was kind of cool.

So we both locked the state into showing the video and, uh, like kind of got out ahead of it.

And I really think it worked well.

Cause let's talk about the state of the evidence.

And how does, how does it roll out for the, for the prosecution?

I think they started off calling, um, like just the civilian kind of witnesses, um, people from the

parking lot, people who, you know, were like, I heard a shot.

I went over, I saw a man.

Um, truly, I don't think there was a lot of meat to the testimony.

A lot of our crosses were, you know, like this car was parked illegally though, right?

Like, yes.

And you know, like you didn't see anything that happened between these two guys.

No.

Like, okay.

Nothing further.

Yeah.

And then cops who also were responsive, um, to the scene, a lot of them didn't have, but

you know, it was important to cross the witness who was inside.

They called him, I think on the first day.

Um, and so we got out that the initial aggressor was Jay.

Um, that he never heard Sean, you know, raise his voice or threaten him or anything like

that.

Did they, did they play the 911 call with, with that witness?

Yes.

I think they did.

I think they thought that it was, so what I can say about the state, they put on a lot

of evidence in the trial that this man had been shot and that being shot is bad.

And so like, they played the 911 call and we're like, listen to him, you know, gasping.

And they did a lot of stuff.

Like they brought his shirt, like his bloody shirt.

And we're like, look at this bloody shirt.

There's blood on it.

You know, like, and it was like, we all, I said in my opening that he shot him.

Like he got shot.

Like shooting, being shot is hazardous to your health.

It's usually bloody.

Yeah.

And so they did that.

It was not unexpected.

All right.

So then, so they just played some, they began their, the state's case with just some sort

of like setting the scene type evidence, people who heard gunshots or were at their restaurant.

But the first big witness then would, would have been the detective or Jay, who was the

first one?

Jay.

Tell us about Jay.

How was his testimony?

So he gets up on direct and tells the exact same crazy, not impossible, like thing that

doesn't match the video that they watched.

So they did, they called the, um, subway employee who was inside.

And honestly, he was kind of good for the state.

He said those things we talked about earlier where he's like, I was only scared when, you

know, Sean had the gun and when the shooting happened, I wasn't scared of Jay.

Um, he also testified erroneously.

He was like, when Jay left, he just walked to his car, which luckily is like objectively

provenly not true because of the video, but he remembered it wrong and testified that

Jay left and just walked to his car.

Um, and so when Jay got up to do his direct, he was like, well, you know, this is all fuzzy

for me.

And I think the way the prosecutor tried to fix it, he goes, you know, trauma causes you

to like lie about things.

Right.

And, uh, you know, he's like, yeah, you know, it's like, it's all fuzzy for me.

I don't remember a lot.

Um, but what happened was I went in, things never escalated between us.

There was no harsh words exchanged.

We actually didn't talk at all outside the subway.

Um, basically I went in, uh, I thought he told me I can't park there.

I was like, what are you?

The parking authority.

And then I left and I was like, or, and then I was like, you know what?

Since this guy criticized my parking, I bet he's not even going to serve me.

So I decided to just leave of my own accord.

And he's like, so I left.

Um, and then he came out the back door and yelled something at me.

So I went over to see what he had said.

And when he did, he took two big lunges at me and shot me at point blank range saying

nothing for no reason.

Um, okay.

And so that was, that was his story.

Right.

Okay.

Sure.

Sure.

That's what happened.

Um, so luckily I had like cross referenced his like depot had it all like ready there,

like with all the sites.

So I got to do that real, the cool thing where you're like, well, I don't know, like you came

to my office on this date and gave a sworn statement, you know, and I asked you if you

didn't remember anything and you said you didn't, you never said you didn't remember any of

this stuff.

And then I was going through like, you said this.

And it's like, well, you said on this date, this thing council, I'm looking at page 13

line 33 and then kind of went through, but basically was able to like impeach him on

this crazy story that he told.

Um, and then I tried really hard just to hit the stuff that the jury would be able to see

from the video.

So like you see this guy walk onto this dumpster area where there's this concrete platform

and I'm like, you were never on this concrete.

And he's like, that's right.

I was never on it.

And, you know, I was like, and you never like raise your voice at Sean, you know?

And he's like, yeah, that's right.

I never did.

And so I think the, I think the jury came away being like, this guy is a like ridiculous

liar.

Like he's lied to us the entire time he was giving this testimony.

Did you ask him about, um, initiating the fight or telling him to go outside and that

whole motion where he then walks outside or what do you, what was it he said again?

He said something like, get your ass outside.

Did you ask me if he said that?

Didn't say, nope.

Didn't say that.

Okay, great.

And then, and then you have that, that guy from the restaurant that was there who could

testify to that.

So, okay.

So he denied that.

Great.

Even, even the high schooler heard that too.

The high schooler who was there heard him say that.

So like three people, Sean, the high schooler, the other guy who was in there.

So it seems like at this point you have it pretty well established that Jay was looking

for some kind of confrontation.

Yeah.

You know, what would have been an unbeatable case, I think if Jay was like, I told that

guy to get his ass out here.

I wanted to fight him.

He agreed to fight me.

We went outside and we engaged in like mutual combat and then he shot me.

I really think like the reason we were able to get the not guilty in part was because his,

because he had zero credibility by the end and there was no reason not to believe what

Sean said.

Sean's story was functionally uncontroverted for the dumpster portion, for the, what happened

during the actual altercation.

Sean's story was uncontroverted.

So then, uh, is the detective the next big witness?

So he was their chosen sit at the table guy too, which, uh, yeah, we learned later.

They, the jury were like, we hated him because he was kind of like petulant during the whole

trial.

Like he was like fidgeting with it, like playing with his phone and just like disinterested

and like not paying attention to what was happening.

These detectives are on their phones all the time these days, you know, they just can't

all the detectives back in the day, you know, uh, my favorite bit of the cross.

So he did a lot of good stuff.

Like he was like, you know, threatening someone to tell them to get their ass outside so you

can find them as a crime in Indiana.

Right.

And like refusing to leave proper private property after you've been asked to leave is a crime.

Right.

Like attacking someone is a crime.

Like you didn't investigate any of these crimes that, you know, there's evidence were committed.

And it's like, no.

And then I really liked, uh, my co-counsel.

What else could he say?

Uh, and then it's like, you, you interviewed Sean's like, you, uh, you didn't watch the

9-1-1 call or you didn't watch the surveillance.

No.

Uh, you didn't listen to any of the 9-1-1 calls.

No.

You didn't know who the witness inside was.

No.

After we did a deposition two months ago and I asked you about the 9-1-1 calls, did you

listen to him after that?

No.

Oh no.

My, I really liked Justin, the thing where he goes, do you, do you lie to people you're

interviewing?

And he goes, sometimes.

Yeah.

And he's like, why do you do that?

He's like, well, it's a tactic.

You have to sometimes go, did you lie to Sean?

He goes, no.

He goes, well, you told Sean that Jay was an asshole.

And he goes, yeah.

And, and then left it after that.

Yeah.

And then we did, he also did a chapter about, um, the video and was basically,

you know, there are these things that the detective like screams at Sean, basically

that are objectively like against the evidence.

So, and he had them quoted out.

He's like, so you say in the interview that you tell Sean, you ran after JD Dyer, like

you wanted to fight.

And it's just like, yeah, it's like, but you see on the video, he just walks the whole

time.

He never runs.

It's like, yeah, you said that JD Dyer was going to his car and that Sean stopped

him from leaving.

It's like, yeah.

And it's just like, but you see on the video that he doesn't walk to his car, you

know, and just kind of like goes through all of the things that are objectively untrue,

but also that he, to try to take the sting out of the interview video because they put

it in through, during him through the, through the cop.

That's good though.

Cause it kind of just goes through the whole lie that the prosecution case and the

prosecution's case is built on.

Like you were able to do that with, when Jay testified, you're able to show the video

and show that it was kind of Jay's up here lying.

And now the detective is investigating Sean and he's doing it based off a lie.

And everything he's saying to Sean is a lie because of the video.

So everything, all the state's case is based or view on what happened is through lies.

And the detective is doing a lie and Jay is lying.

So everyone's fucking lying on the prosecution side.

Garbage in, garbage out.

He said kind of a crazy thing during the deposition.

We were like, is Sean's, Sean's story is consistent with the physical evidence.

Right.

And he's like, yes.

Like, did you feel like Sean was dishonest with you during his interview?

And he goes, no.

And so like, okay.

So then like when he has him on direct, you know, or across, he was like, and, and you

think that Sean told the truth to you in the interview and he's just like, uh, like, he's

like, you know, and you said it during the deposition.

He's like, well, you know, I don't know.

Maybe it was, I don't even remember how he tried to hedge, but he tried to like get out

of it in a way that it was very clear that everyone knew he'd already said that.

And then now was like, I see why that is bad.

Also, but just once again, the prosecutor was present for these depositions where the

police officer said that he believed Sean was telling the truth about what happened.

Yeah.

You'd almost think that would be enough, right?

Like if you were like, well, your story is consistent with the physical evidence you, uh,

and I believe you're telling the truth about your theory of defense.

So I will proceed in prosecuting against you.

What about the, the one shot?

Just that, I mean, Sean only shot him one time, which is a great fact for the defense.

Um, did that come up at all through the detective?

Yep.

They showed him, they put the gun in evidence and then the, and the jury are like, oh my

God, do you guys get to have jurors ask jury questions?

Depends on the judge.

Sometimes.

Yeah.

Okay.

Hate it when it happens.

So our jurors are allowed to submit, submit questions at the end of, um, redirect or cross.

Uh, and then the judge decides, you know, confers with the party and asks if they can be asked.

And so at the end of the detective, um, they submitted jury questions.

And the two juror questions were, if someone was attacking you, where would you shoot them

to stop them?

And if you really wanted to kill someone, would you only shoot them one time?

Oh, oh.

I mean, those aren't just good for defense.

They're like, they're very snarky too.

I mean, it very clearly is like, come on, you asshole.

They were for the coach from the player.

I didn't know at the time, but those were his jury questions.

The juror who had been his, his football player.

Oh, that makes it even better.

When did you find out about those questions?

At the end of cross.

Okay.

Um, or redirect by the state or whatever.

And then we go up, the judge did not ask either of them.

What?

Did you guys, were you able to argue that?

Did you guys, was that a discussion you had?

Yeah, I can't remember exactly.

I mean, we argued, we were like, yes, ask them.

Um, but I don't remember how the judge decided not to do it.

Okay.

It's too good for the defense.

Um, okay.

And so they put the gun in and you could definitely tell the jurors, um, we talked about, like,

there was a magazine in the gun.

He had 13 more shots that he didn't fire.

Um, we had an evidence that the gun seemed to be, you know, was functioning.

There was no reason it could have, like, not fired more.

And the one casing, there was, like, one casing, right?

In evidence.

There was other stuff that was good in the physical evidence.

Like, you know, Sean had, there was a holster that was recovered at the scene and stuff.

And we're like, and this is an appropriate civilian carry holster.

It's safe.

Like, officer.

And the officer's like, yes, yes.

You know, it's like, and it would, it would have been, like, a fine holster to carry your

firearm in.

Yes.

And a lot of the other physical stuff, like, the casing was on the concrete in the dumpster

area.

The blood was in the concrete in the dumpster area.

Um, the holster was on the concrete in the dumpster area.

And then this guy's like, I was never in, Jay's like, I was never in the dumpster area.

Oh.

So.

I was lying about that.

That's troublesome.

Yeah.

Yeah.

Yeah, because Jay would have to admit he was in the back to cause shenanigans.

Shenanigans.

In terms of farming, like, random good facts from cops, you know, it's like, you went in

this dumpster area, right?

It's like, what's back there?

And the cops would say, and they'd be like, is there any reason for someone to be back there

who's not an employee of Subway?

No.

You know, and so they, we got a lot of good stuff from the cops that I think they were

like, there's no harm in giving this up.

Like, this doesn't matter.

Was Sean the ship manager or ship supervisor or something like that?

At the time.

Yeah.

He was the, like, most senior employee.

Okay.

So he was responsible for the store.

Yes.

Okay.

Any other evidence in the prosecution's case we want to talk about?

I don't know.

Can you think of anything?

I don't think so.

It was kind of a thin case, you know, it really was these two witnesses mostly.

All right.

So then the state rests, motion, directed verdict, motion to dismiss.

How did that go?

Oh, judge hated it.

State didn't really have a counter argument.

It was a good one then, right?

And I made an argument based on a weird language in the trial rule, which is also for civil

stuff, right?

And it seems to indicate that you couldn't direct out issues, even like counts or whole

cases or issues, sort of.

And so I made an argument that she, that essentially Sean, the state had played Sean's statement

where he says, I did this in self-defense.

No other witness says he didn't do it in self-defense.

It's uncontroverted.

And the judge was like, no.

Right.

And the prosecution, she said that defies common sense counsel.

She should have.

It was worse.

She paid you back.

Noah was like, you know, they have to disprove that this was in self-defense.

That's part of their burden.

And so they have introduced no evidence that this was not in self-defense.

And then judge is like, I'm pretty sure.

And looks at her notes.

She's like, I'm pretty sure there was some evidence back there that said it wasn't self-defense.

There must have been something.

And then Noah was like, Noah's like, I need to know what evidence you're talking about.

And she's like, we're moving on.

You know.

That's such bullshit.

So that's a good point.

On any battery case, even a murder case, it has to be, it has to be, self-defense is

an element that has to be not committed, has to be committed not in self-defense.

And they're saying the prosecution didn't prove it was committed not in self-defense.

And therefore, the case needs to be dismissed because there's no evidence, other evidence

other than Sean's statement as to what happened.

Sean's statement is supported by all of the physical evidence that they have.

All right.

So time for the defense case.

Did you guys put on a defense case?

We did.

So the state had listed as witnesses two people that we had deposed.

One was a cop and one was another eyewitness who was there.

But she put him, she also put Jay in the concrete area.

She's like, I didn't see the shot happen, but after the shot, I couldn't even see this

guy because he was back.

I could only see the top half of his body because he was back in this concrete area, the dumpster

area, and the dumpsters and stuff like obscured my view.

So he was back there.

And the cop, there was just this cop who said a bunch of cool stuff in his depot about like,

well, this is private property.

So, you know, if you park your car there illegally and someone tells you to move it, like you

have to, or you're, you know, he was really into like private property rights.

And the state didn't call either of these people.

And so since we'd already deposed them and had prepped for them, we decided to call them

on direct.

So we called both of those people.

And then it truly was like a big question.

We'd always anticipated that Sean was going to have to testify.

I don't know how you do a self-defense case without really him testifying about his state

of mind and what he wanted to do.

But Sean also has pretty bad anxiety.

And so he was really nervous about having to testify.

And ultimately, when they played this video, we left it to him, obviously, and we talked

to him about it.

But he had told this story so well and like so compellingly in the video that we were like,

at this point, with the evidence that they put on, I don't think you have to if you don't

want to.

And he ultimately, he thought about it for a little bit, but he opted not to testify.

So after those two witnesses, we rested.

All right.

Time for closing statements then.

Tell us about that.

So we broke overnight at the close of defense evidence, and we were going to come back in

the morning and let the court know if Sean would testify and do closings.

So Noah and I, I was up like working on the closing night before.

Noah and I were like, won't it be crazy if they come out in their clothes and they say,

I'm going to snap on your ass.

That's exactly.

And they opened their clothes with that too.

And that's exactly what the state did.

The state came out and was like, I'm going to snap on your ass.

That's what he said.

That's what he did.

You know, this guy is a jerk, Jay.

But basically, so they really hung on.

There is a jury instruction that they got, a final instruction that says you can infer intent

to kill from the use of a deadly weapon.

And so they were really hanging their hat on that.

They're like, he used a gun.

He intent to kill.

There was specific intent to kill because there was a gun.

And I would say that on initial close, I thought the state did pretty well.

Like it was at least, it was put together.

They, you know, cast out on the right aspects of Sean's story.

One thing that I, um, one thing that I liked that he did that was really like one of the

only kind of defense attorney things, like kind of apt, like a skill thing is he goes like,

oh, the, uh, defense has said that Sean was like trying to, it was a subway employee getting

rid of a trespasser.

He needed to like act in his capacity as manager to make this man leave the property.

Good thing he ripped off the only identifying, the only article of clothing that identified

him as a subway employee.

And then they also kind of tried to do a thing where they're like, they want to say, they've

been talking about thinking about this from the defendant's perspective.

Think about this from Jay's perspective.

You're just out standing trespassing on this concrete and a shirt and a shirtless man runs

at you, you know, or walks at you.

Like, what are you supposed to think he's going to do?

Um, so anyway, you know, find him guilty of attempted murder.

Thanks.

And then, so what'd you do on your closing argument then?

I went through again, like the story from Sean's perspective, um, everything that had

happened.

I talked about how Jay was the problem in this situation, not Sean.

Sean was at work doing everything that he was supposed to do.

Like Jay came and introduced this problem into the world and then hit really hard the detective's

video and was just like, you can watch this video.

Here are things Sean actually says in the video.

A bunch of quotes where he's just like, I did not want to fight this man.

I, I told this man, please leave.

I, you know, and then here are the things that the detective said attributed to Sean falsely.

And I was kind of like, uh, in another, you know, I can picture another world where the

detective's like, wow, it sounds like you were the victim of a crime today.

But like, Sean doesn't get that consideration from this detective.

And then, so there's a really annoying part of the video where the detective goes, Sean,

why didn't you just take your gun out and point it at him to deter him and not shoot and just

use it to like make him leave?

Why didn't you commit another crime?

So I talked about that and was just like, it's clear that the detective wants to hold Sean

to a higher standard than every police officer has ever been involved in the shooting of

an unarmed man.

And that drew an objection from the state.

Yeah.

And they're like, they're trying to inflame the jury, you know, but that was all I had

on it.

So that was fine.

Talked up, went through that.

And then really we went through, I went through the law of self-defense, the elements of self-defense

talked about how big this guy was, talked about the steel toed boots, talked about how Sean

could have gotten like truly horribly hurt by this man and how the law like doesn't require

you to take that risk basically.

And we talked about the difference between what's smart and what the law requires and that

you don't have to wait and see to find out whether this guy's going to let you go home

to your family or not.

Like we live in a state where if you threaten some, if you come onto private property and

you refuse to leave and you threaten someone and you attack someone, then they might shoot

you and the law required, you know, the law sanctions that and finds it justified.

Well, I don't even know how much wait and see there is if the guy had rushed him and had

him in a bear hug at that point.

I mean, but you said you were keeping that a little fuzzy.

Yeah, I think the state's state had to like their two best arguments, I think, were Sean

was a mutual combatant.

He agreed to fight with this man by taking off his shirt and going out there.

And you can't claim self-defense when you agree to fight.

And also, he couldn't have had a reasonable fear of serious bodily injury because the man

was unarmed.

And the guy says, the cop says that to me, he's like, Sean, you weren't just jack jawing

at a bar with this guy.

If you guys want to go out and hit each other and punch each other, that's one thing.

But you brought a gun to the fist fight, you know.

And so that's why, you know, you're in the wrong.

And then I paid probably less attention than I would have knowing everything I know now.

The end of my close was like, they also have to prove this specific intent to kill.

And they're telling you that you may infer that intent to kill from using a deadly weapon,

but you don't have to.

And there's a lot of reasons to think that Sean didn't want to.

You know, one shot, enough to get away.

That's all he did.

I mean, if he'd wanted to kill J.D. Dyer, it would have been incredibly easy for him to

do so.

But that was never his intention.

He just wanted to get away from him.

He used the gun to secure his escape from this attack.

Okay.

One line that Noah made me take out, we were going through and I was like saying everything

the detective said that was wrong.

I was like, the detective said this, that wasn't true, you saw it on the video.

The detective said this, that wasn't true, you saw it on the video.

I was like, and just to show that I'm being fair to the detective, he said that Jay was

an asshole.

And I think that that is astute.

But, and Noah's like, no, that's too much, don't do that.

Oh, I would have gone for it.

Oh, and we.

I'm team leaving it, baby.

We talked about the civil case and we're like, it makes sense that J.D. Dyer would lie about

everything that happened.

He's hoping to get rich, you know?

Like he has every reason to obfuscate what happened and make it seem like this wasn't his

fault.

He wants that subway money.

Mm-hmm.

Those deep subway pockets.

The subway gold card.

The other, so on, on Sir Rebuttal, the state was unhinged.

I think my, I think like my clothes, they were like, uh, like this is not good.

It finally dawned on him, not through all the depositions or through the entire trial.

It wasn't until you finished your closing where he was like, oh shit, this might be bad for

us.

Do your prosecutors use PowerPoints?

Yes.

Yeah.

With the fancy spiel.

Yeah.

So normally ours do too, but he went like off cuff.

Like he just left his Sir Rebuttal to be like, I'm just, I think I got the impression that

it was long.

Oh, you rattled him.

That it was long.

And so there was a point in Sir Rebuttal where he goes, we proved to you that this is

probably what happened.

Oh.

Like I said, that's probably.

Probably is not reasonable doubt, my friend.

So we looked out at, there were jurors who were like, you know, like we heard it.

He can't even say.

Mm-hmm.

Oh, great.

So, uh, how long were the jurors out for?

How long did they deliberate for?

Like, like two hours.

How was, how was Sean during this?

How was Sean during the trial?

You said he had a lot of anxiety and stuff.

So like, how was he?

Like, he was like, he was appropriately terrified, I think.

And nonetheless, kind and like thoughtful and respectful.

Chris worked with him a lot during trial, helped dress him because he was still in custody,

um, helped like put together outfits for him and just did a lot of kind of like anxiety

management with him, I think, like getting with him in the mornings when we were getting

our stuff ready.

Okay.

All right.

Tell us about the reading of the verdict.

How was that?

Just one count.

We felt like we, we were like really cautiously optimistic that it was that fast.

You know, we're like, it seems like it'd be hard to turn all these people in two

hours.

Yeah.

Um, so we, I felt good about, but like,

the unspeakable hope, you know, right.

Uh, I say it out loud and jinx it.

They picked a lady for a person, which I always like.

Um, and so, yeah, they read the verdict.

Sean broke down.

I mean, he was crying.

His grandma who was in the gallery was crying.

Um, just, you know, we were, hugged him.

Like there was a lot of, I mean, it was just like one of the best feelings in the world.

Right.

It was like the most perfect room to be in.

Yeah.

Um, I had a moment, you know, cause Jay was, Jay was sitting back in the gallery and I

was just like, man, like to think about this, like you turned down all the plea deals for

this guy.

Then the detective called you an asshole during the trial.

And then the prosecutor said that you suck during his clothes.

And then 12 people decided that a guy was justified in shooting you because what an asshole

you were.

And I was just like, yes.

Like, yes.

Um, so he like shuffled off somewhere.

Um, I like that.

The judge, like, you know, the state and the judge did this thing where they came up and

were just like, you know, I agree with the verdict.

Like, I'm glad that happened for your guy.

Oh, I hate when they do that.

And you're just like, oh, that's funny.

Cause like, you were trying to, you were really trying to fuck him over like as hard as you

could, like 30 minutes ago.

But yeah.

Yeah.

No, I've had a prosecutor come to me after a not guilty verdict and say, I was rooting

for you.

And I'm like, are you fucking kidding me?

I don't know why they say things like that to us.

Like, this is not helpful.

You have an ethical obligation.

If you're rooting for the defense, you shouldn't be.

You didn't even listen to me.

You're not rooting for me.

And you know, it's extra.

This was, the trial started December 4th.

It was Christmas.

You know, there were, so this guy was going home to his family for the holidays.

Like there was just, just.

Yeah.

Conjunction of things.

It's great.

I'm getting a little frizz on talking about it right now.

Got the chills.

Well, that's great.

All right.

Well, dude, uh, well, Kyle, thanks for coming on the show and sharing this and bringing the

team along with you, having Chris here, your investigator and co-counsel Noah, just being

there in the background and helping out in case things fall apart with your, the childcare

and stuff like that.

But before we go here, guys, I was going to close this, close this out with the question

that I ask all our guests at the end of everything.

So, uh, I'll start with Kyle because he's, he's the main guy here.

But Kyle, why did you become a public defender?

I was a bartender when I finished, uh, like undergrad.

I really think I would have liked to do that for a while.

Uh, I was arrested and falsely accused of a crime.

Uh, it was ultimately dismissed, but I still have a chip on my shoulder about it.

It really made, uh, just the way that the police treated me and the way I was treated while

I was in lockup, um, really stuck with me.

And, uh, I don't like bullies.

I have like a, this job is, it seems very suited to my skillset.

I don't know if there's anything else that I could do with my life that would be as fulfilling

or would kind of play into my talents as this.

I feel really lucky to have found it.

How long have you been doing this now, Kyle?

I was admitted to the bar in the fall of 2015.

Um, all right.

And Noah, what about you?

How long have you been with the public defender's office for?

About 11 years.

Um, I don't remember what I said the last time I was asked this question, but, uh, I, at

the risk of committing podcast perjury, I am a PD for two reasons.

One is what Kyle talked about.

Mine was just driving.

I grew up poor and drove a shitty car and got pulled over all the time for nothing.

Let, and I didn't know any better.

Let them search my stuff and hassle me and whatever.

So that stuck with me a bit.

Um, and then the other thing is just like, uh, growing, uh, growing up the, the way I

did, like the idea of, uh, helping using my law degree to help people with money is a non-starter.

All right.

All right.

And, uh, you know, this is kind of fun.

We have an investigator.

I'm not sure if you had an investigator before.

So Chris, how long have you been an investigator for?

Um, so about seven years now.

Seven years.

And you started in New York?

Yeah.

I started in New York, um, working at the Bronx Defenders at first.

Well, interned at Brooklyn Legal Aid and then.

Uh, the Bronx Defenders.

Okay.

Okay.

And then what made you become an investigator?

Were you in law enforcement first?

Or how did you, I mean, how do people?

No, no, no, no.

Hell no.

Okay.

No, it's like, you know, it's, it's like the kind of sad, typical thing of like a New York

kid, right?

Like stop and frisk ruled my day to day.

Like I was always pulled over.

I was always accused of doing something wrong.

And I think in my early twenties, you know, being arrested in front of, you know, my girlfriend,

who's now my wife and seeing the devastation on her face.

And she's, you know, Caucasian.

And for her to see me telling her I'm about to be arrested, you know, relax.

This is not like, it's cool.

Don't sweat it.

Like in her fear, um, and kind of everything that came along with it, with like me doing

all the right things.

You know, I've had the black boy talk of, you know, my windows were down, my lights was

on, my hands was on the steering wheel.

And even though I did everything right, I was found to be wrong of something, um, left

me with a different taste in my mouth than all the times from when I was younger.

And it made me ask questions at that point that I was eligible or like I had the ability

to try to gain an answer to.

And then what led me towards wanting to be like part of the PD's office is the fact that

every paid attorney that I spoke to had the same spiel to me.

Did anybody call you the N-word?

Did they hit you?

Like, so why don't you just deal with the fine?

And it felt like it wasn't enough.

Like, why was that the exit something that I was like a pill that I was supposed to swallow?

That wasn't right.

So I enrolled back into school and got my criminal justice degree and like wanted to be a lawyer

to do something.

And I got an internship as an investigator and I was just like, I'm much better at talking

to people than I would be like doing what you amazing people do.

Right.

And I just read a lot of stuff.

Being in the hood works out better.

Chris is like the truest true believer.

He came to us maybe like a year ago.

Chris, you've been killing it.

Just killing it.

Like some of our lifeblood of the office.

Oh, great.

It makes such a huge difference when you have a great investigator on your case.

When they're like excited, more excited than you to go out and do the job, like, wow, thank

you so much.

That's so cool.

Then they do the extra things.

They have all the ideas too.

So great having a great investigator on your team.

Sean gave us permission to try to sort of share his story.

We posted on social media the not guilty with just some of the facts.

And a member of the community saw it, reached out, bought Christmas presents for Sean and

his two adorable twins and his fiance and him.

Chris and I got to play Santa and take him over and drop him off, which was cool to get

to see him all together and just, I don't know, it was kind of put a bow on it.

Kind of funny character building about Sean.

We texted him and we're like, hey, you know, this person wants to buy Christmas presents

from your family.

She really wants to get some nice stuff for you.

Like, what do you want?

And he said he wanted any, any smell goods.

And so I was like, what do you mean?

I don't, I'm sorry, man.

I don't know if I know.

And then he was like, literally, literally anything from like bed, bath and beyond.

Like, can you like, this is the killer.

This is the killer that they want.

Someone who wants Japanese cherry blossom.

Like, chill out.

Chill all the way out.

Chill out.

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.