Unsworn Kids Say The Darndest Things – When Testimony Doesn't Hold Up

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The first two witnesses, I believe, we kind of split things up that Rob was going to, he was going to take the fall, so he was going to cross-examine the child. In the event that the child says that these horrible things happen, he's the one left holding the bag. And Mr. Lead Attorney gets to stand up and say confidently, "Listen, you should find this guy not guilty."

"Listen, cross-examining a child, it's a very scary thing to do. If I say something wrong or say something the jury doesn't like, well, you're going to be hearing from somebody else during the closing. So, you know, the guy you have holding something against, I'm sitting at the table. Just listen to James right now, you know, so..."

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.

"Objections! 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."

Okay, welcome back, everybody, to Another Not Guilty. Your boy, Davey D. here, bringing you the freshest hot take Not Guilties across the country.

And they don't get any more fresher than this. You know, with the pandemic easing up and courtrooms starting, we're getting a slew of jury trials coming back to refresh the well of Not Guilties.

That sounded weird. But anyways, guys, speaking of weird, I'm going to bring in our co-host today. You guys know her as Anya.

She's one of our favorite guests and co-hosts of the None They're Not Guilty. Anya, how are you doing today?

Hey, how are you doing? I feel like I need a nickname, too. Now, you're Davey D.

Yeah.

I gotta come up with something.

A-list Anya?

A-bomb Anya or something. I don't know. I like it. We're gonna have to come up with something.

Okay. You know, let's see how the episode develops. Maybe we'll think of something as we go, guys. All right?

I like it.

But today's guests, guys, are two public defenders from not just the state of New York, but from Dutchess County.

We have James and Rob today. James, how you doing?

I'm doing great, David. Thanks for having us, man. We appreciate it.

Hey, James.

Anya, what's up?

Hey, Rob.

Hey, guys.

So, James and Rob, these two public defenders just came off a fresh not guilty up there in Dutchess County.

Where is Dutchess County, anyways?

Dutchess County, it's about an hour north of New York City. It's beautiful.

I was telling Anya beforehand, some people consider it upstate.

It's not really that far upstate, but whatever. We get a little bit more privacy.

We do it better up here, so we love it.

Let Brooklyn, let Manhattan take all the heat, all the attention away.

You guys just enjoy Dutchess County there up there.

You got it.

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

About five years right now.

I've been an attorney for almost eight years, but public defense and criminal defense is where I'm at, and I'm proud to call myself a public defender.

All right, and Rob, how about yourself? How long have you been a public defender for?

Just about two years.

Prior to that, I was in the Orange County DA's office, Orange County, New York, for three years.

After that, you know, saw the light and went over to the other side.

What's that?

Oh, interesting.

We're going to have to ask you about that at the end of the show then, okay?

But James did send me an email saying he got a not guilty on a case.

So, James, take it away.

Tell us about the trial you just did.

What were the charges?

Absolutely.

So, charges were pretty steep.

Predatory sexual assault against a child carries life in prison if convicted.

Sexual abuse in the first degree.

It's a D felony.

Carries seven years.

And they tacked on a misdemeanor of endangering the welfare of a child, too, just to round it out.

Wow.

Serious charges there.

Absolutely.

Yeah.

Predatory, right?

Yeah, that's the term.

What elevates it, there's a few things that elevate it.

It basically involves, we're going to get a little adult here, so bear with me.

But remember, it ends in a not guilty verdict, so it's all good.

That involves oral sex, and then when the offender, the alleged offender, is above a certain age and the alleged victim is below a certain age, that age range compounds the allegation of oral sex, upgrades it to what in New York we call an A2 felony, where the maximum sentence is life in prison.

So it's pretty serious stuff.

Ouch.

Ouch.

So what did your client allegedly do?

Well, he allegedly engaged in oral sex with a five-year-old at the time, as well as touching her inappropriately, inserting his fingers into her private areas, and that was basically it.

It was unclear whether this was alleged to have occurred multiple times or just once, but honestly, if the people convince the jury that it happened just once, that's all they need, and he might go to jail for the rest of his life.

Can you be more specific, though, as to exactly where and when this alleged touching happened?

Yeah, absolutely.

So it was alleged to have happened between June 1st and July 31st of 2019, and I believe it was alleged to have happened probably in the bedroom.

Our client, the defendant in this case, is the boyfriend or the fiance of the child's mom.

And the child's mom actually was pregnant with his own child.

So they were all kind of living together in the same room in a small town in Dutchess County called Poling, New York.

Really, really beautiful spot.

Not too much happens there.

This is kind of a quiet town scenario.

So these were kind of shocking allegations.

And you're saying that the young lady or the girl was only five years old.

So how did these allegations come about?

Yeah, so it came about the five year old at the time, the complaining witness was actually observed kissing another student on the lips, I believe, in September of 2019 at her school.

The vice principal saw that, spoke to the girl, and the girl kind of said that, you know, her stepdad was touching her inappropriately.

The vice principal then reached out to the parents and CPS.

CPS conducted an investigation.

They interviewed parents, the children, the child's babysitter, which led them to contact the sheriff's office.

And then they worked with what's called the Child Advocacy Center, a group of, you know, supposed experts who interview children about allegations of abuse.

They interviewed the complaining witness in this case, who did make allegations of abuse towards our client.

And as I said specifically that, you know, our client touched her vagina and that his penis made contact with her mouth, which would barely, you know, if true, satisfy the charges which he's later indicted on.

When law enforcement interviewed the mother and the babysitter, what did the mother and babysitter say?

So the mother always was steadfastly in our client's corner.

The mother always said, I never observed this happening.

The child never told me anything.

I don't think this happened.

Now the babysitter, and this becomes, we get two babysitters in this case, double the babysitters.

The one who's interviewed initially is the neighbor at the time.

And the neighbor says, actually, back in June, the complaining witness told me that, you know, the defendant was touching her, actually made her private parts hurt so you couldn't sit down.

And had said something along the lines of, if you want, the child said this to the babysitter that our client had said, if you want milk, you are to suck it.

Referring to, you know, his penis, obviously there.

And so that was obviously a concerning line that we didn't want necessarily the jury to hear.

But, and this babysitter, by the way, is kind of what's referred to as a potential prompt outcry witness.

That basically the abuse happened and then relatively quickly after the abuse happened, she tells an adult.

So even though it's technically hearsay, it is allowed under the prompt outcry exception.

So that was the babysitter who was very much against our client.

And then the mother who is on our side.

Babe, did the babysitter take that information and do something with it?

No, no.

And funny enough, this is what Rob brings out great on cross down the line.

No, she told, according to her, she told the mom.

Um, she told the mom and according to her, the mom fainted and, uh, and then basically said, don't tell anyone about this.

Now the mom based on our speaking to her denies that she denies fainting.

She said, I'm not a fainter anyway.

Um, but she never calls the police.

She never calls CPS.

Um, she doesn't even write it down.

And, uh, she's kind of unsure about the dates, uh, as we'll see going forward about when this happened.

She doesn't really seem to, uh, recall the times and dates, but she does remember that line about milk.

And, uh, we didn't, you know, love that.

But, uh, but that's where we are back in, uh, when, when this case started out.

You hear something like that.

It's something you would immediately go and probably report to the police.

So I was curious if that happened.

You would think you would think on you.

I completely agree.

And, and she, so, so she really did nothing with it.

She put it in her pocket.

Uh, and, um, and she actually had to be contacted by, by authorities, um, before she even told anyone about it.

Even when she heard about this kind of occurring, she didn't volunteer this information necessarily.

So I had to be very much coaxed out of her.

All right.

So the police make it all the way to the, they said that they work for the child advocacy center or something like that.

And then who interviewed the girl, the, the, the five-year-old was it the police or the child advocacy center?

That was a child advocacy center.

And those are the, um, purported experts at speaking with children.

Um, the interview and the interviewers are not allowed really at trial.

It just sets a basis for further investigation, really.

Um, and that's because, you know, in our opinion, incredibly leading questions.

I mean, they're looking for abuse.

They're not just asking, Hey, what, what happened on so-and-so day?

Um, but yeah, they're, they're kind of work with the sheriff's department as the speaking to children arm of law enforcement.

So really that's, so it's not really a forensic exam to like get to the truth.

It's just more of an examination to, to build a case.

Correct.

That's exactly right, David.

I mean, they probably would use the word forensic.

They use the word forensically trained, but, uh, it is not just to find out in my opinion.

I think, uh, Rob's opinion to what happened.

It's to, um, pursue these lines of inquiry until something has come up.

So they ask like leading questions.

They feed her facts and their questions.

Incredibly.

Yeah.

And even when it becomes apparent that the child is not necessarily interested in answering questions anymore,

they give her a little break and then jump right back into it.

So it looked exhausting on the behalf of the child.

Uh, on the behalf of the child.

It's my personal opinion.

She's five though.

Right.

She can handle herself.

You know, he's five year olds.

They're pretty tough.

New York, New York, five year olds.

Send her to the paper mill.

She's ready to work.

Yeah, no, I know.

Yeah.

It was, uh, yeah, yeah.

Traumatic.

I'm sure.

Anya, that's the, this is not Brooklyn or Manhattan.

This is Dutchess County.

Five year olds.

They're not as tough.

Well, maybe in comparison to us, West coast, five year olds, you know, maybe they're a

little tougher.

You guys are too cool out there.

We, we wouldn't stand a chance.

Can you give an example of the type of leading questions they ask in this interview of the

girl?

Well, instead of saying, you know, do you, do you remember this?

Tell us, tell us what happened.

Do you have anything else?

You know, they, they say, um, so, you know, he, he touched you.

You remember he touched you, that kind of thing.

You know, that, that actually might be verbatim out of the interview.

I just, you know, I haven't watched it about a year and a half, but a very pointed towards,

um, you know, they do kind of introductory, how old are you, you know, that kind of thing.

And, uh, and then they jump into it pretty quickly.

And they, you know, they've stayed at it for a few hours.

I think this is not like a half an hour interview.

We're talking, um, you know, quite some time over the course of a day.

Okay.

Shortly after that, they, they, they ask our client to come down to the, uh, the sheriff, uh,

department and he voluntarily, you know, kind of in a nothing to hide attitude.

He, he gives two lengthy interviews with, um, the first elite investigator.

And then he actually consents to a polygraph and he agrees to speak to the polygraph examiner

with the idea being that he would take a polygraph at the end to verify everything that what

he was saying was accurate.

And what does he say for the first interview?

So the first interview, he, as we, as public defenders and defense attorneys love, he says

nothing, really nothing that hurts him in any way.

Um, if you're watching the first interview, you're saying this is open and shut.

This is great.

Uh, the second interview gets a little dicey.

Um, the interviewer is much more trained.

Uh, he's much more, um, stealthy at getting, uh, statements to be made.

He creates this entire situation where how can I, how can the, uh, uh, uh, you know, complaining

witness be lying.

You're like, you trust this person, right?

You know, they're not lying.

So, okay.

Tell me what's going on here.

Give me something.

And, and maybe if it's not that bad, you know, so he does a, uh, in my opinion, a very

good job at, at, at trying to get any information at whether it's true or not.

I don't even think that's the point, but, but, you know, they're at the police station

for a reason and he's got to give him something before, before the, let him go.

This is the, the mindset that I think this, this stealthy, uh, investigator creates.

And, and our client says, I get, I probably, in my opinion, what I would say is not necessarily,

um, confession level, but certainly some creepy things.

You know, he says, well, you know, I did have my hand out.

She, she jumped on my hand once accidentally.

I pulled it away.

It wasn't intentional.

It was an accident.

And he talks about that.

You know, sometimes he gets erections when, when people touch him, uh, or when people give

him a hug or sometimes at work, he gets the, the, the, the takeaway from this is like, well,

you know, there's not, not one line that says that's a crime, but you're like, Ooh, this

is not good.

This is not going to the direction I was hoping.

I want that first interview.

I don't know about giving hugs to this guy.

I'm usually a hugger.

We didn't, we didn't do that.

This is all through the statements given through an interpreter, right?

So our client speaks Spanish.

All the witnesses speak Spanish.

So, uh, in terms of the statement and what's said, uh, the one detective is relying on the,

the translation from the other, uh, interpreter who works for the state police as well in the

room.

Uh, it seems like this case is just sort of like, if we can get the girl to say this, then we got a case.

And if we can get the defendant to say this, then he admitted to it.

And that's how they, that's all they care about.

Can we just get them to say yes to our question?

That's, that's the game.

It's very astute.

That's how we felt as well.

Yeah.

So that's what the interview is.

Any other evidence in the case laid out in the police reports?

Oh, at one point they tried to do a controlled call, uh, with him.

That's where they have, um, the mom hop on and, uh, and try to get him to say incriminating

things.

And he doesn't.

So they don't even use it.

They just have to throw it out.

You know, typically in, in, in some, uh, you know, sex offense cases, they have the mom

of the child set, you know, talks and eventually they sell, I'm so sorry.

I know I did what was wrong.

And then you're like, boom, got him.

No, you know, there's a controlled call.

It's all in Spanish, probably 10, 15 minutes long.

He says, I don't know what's going on.

Why they keep asking me this.

I didn't touch her.

I didn't hurt the girl, all that kind of stuff.

But that, that doesn't end up coming in a trial, but that kind of gave me a little bit

of a heads up.

Hey, okay.

We might really have something here.

So do we want to talk about how all this came about because the girl kissed somebody

at school?

Like what's what is that inappropriate?

You know, I, that's a good point.

Like, I, I don't know.

I don't think, I don't know if it happens on a regular basis.

I have zero, you know, I have a daughter myself now.

She's basically a baby.

Uh, but you know, I'm not sure it could be something that's a little concerning.

Maybe it's something, but I'm sure there are other reasons, um, that that might happen

have nothing to do with abuse.

Um, Anya, what's your take on that?

I don't know.

I mean, to me, it's like, it's a five year old kid.

Like they'll kiss somebody.

It's what is this kindergarten?

I mean, preschool, kindergarten.

Like to me, that's not a concerning behavior.

It's not like the kids going around trying to poorly copulate other kids in class.

You know, I mean.

Thank God.

Yeah.

I remember, I remember like in, in elementary school, first grade, second grade, you know,

girls would chase boys around and try to kiss them.

That was the thing.

Um, not me.

No one, no one tried to, but anyways, but other boys.

Are you still suffering from that?

Are you?

Well, how jealous are they now?

I mean, look at you, but no, that's a good point.

And it is something that, um, I, I initially was like, ah, this is not good.

And then I started, I think my wife actually, my wife was an attorney, by the way, who works

in our office and we've worked on cases together.

She's fantastic.

She has great kind of common sense insight.

She actually sent me a photo, uh, of her cousin.

Um, her kiss cousin, I don't know, seven, eight, um, kissing another child on Facebook.

And I was like, okay, maybe this is not as strange as I think it is.

Certainly it's not as strange as, uh, the police are making this out to be.

So, I mean, I'm kind of on the fence about that, you know, but I don't think it necessarily

is, oh, bam, we got, you know, there's clearly something going on that we need to investigate.

And it ended up setting off this entire kind of waterfall, waterfall, uh, ball of events.

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All right.

So then let's, uh, let's talk about the next phase in the case.

This is where I guess you get appointed and you, and you meet the client, right?

Sure.

Yeah, absolutely.

So, um, so he's, he's indicted, uh, on the three charges.

He's remanded without bail because unfortunately that high level of felony is not even bailable.

Um, we, we get appointed because I cover, I cover the city of Poughkeepsie, which is a fairly big jurisdiction, relatively speaking, but my side court, my second court is polling.

So, so I, I immediately start working with the client and obviously there's a language barrier.

We use a service called the language line, which is a phone that we can connect with interpreters, but it's clunky.

I mean, you double the time for everything you do is double the time.

What could be, you know, just talking to your client about whether it's to testify a grand jury or not, that could be a five minute conversation.

Suddenly maybe it's a 20, 25 minute conversation, but, um, we clearly saw that, that, you know, our client was not interested in any, um, really any, any plea, uh, disposition always maintained his innocence.

And, and really did not express the concern that we did about some of the concerning parts of the case, the offer initially, Rob, the offer was, was 20 years.

I mean, it was a horrible offer.

We call it trial offer.

I'm sure you guys do as well.

Right.

Like 20 years.

That's garbage.

Um, and as, as things went on, it ended up going down a little bit.

It went to, you know, seven years, the max on the D.

Um, but our client just never was like, no, I didn't do this.

I'm not, I'm not saying those words.

Um, you know, and so we were like, okay, we're on the same page.

Let's do this.

Let's legate.

So, um, James, so when you did speak to your client, he wasn't going to take anything.

What was he saying that just, that didn't happen.

She's being coached.

Did he come up with a story as to why this may have came about?

No, you know, it was very authentic.

Um, a combination of confusion and anger, like confusion is, I don't know where any of this is coming from.

Like he didn't have an answer and then anger as to, as why are they trying to get me to, to say that I did these things that I didn't do.

Uh, so it, it seemed very genuine.

And, um, and we took our marching orders, uh, from him.

And unfortunately he had to spend 565 days in jail during the worst pandemic, uh, you know, in a hundred years, uh, to be vindicated, but it ended up, uh, being fruitful.

So what's your next step in the case?

What are you, are you trying to investigate anything?

Uh, you, are you looking, you're doing some research on something?

What do you, where do you go from there?

Well, so we do a combination of things.

We, we, in this particular court, we get, uh, motion dates, then hearing dates and a trial date, all relatively close together.

So our investigation is taking place concurrently with us filing motions, gaining information, negotiating, you know, in a relatively quick amount of time.

Um, so we, we file motions requesting most predominantly a Huntley hearing, which is where we try to keep his statements to law enforcement out.

Right.

Um, and at the same time, our investigator, wonderful, by the way, Oliver Maxson, he's a fantastic investigator, former news reporter.

So he's, he's got that kind of gumshoe mentality.

He is, uh, uh, in Pauling, looking for witnesses, trying to find who knows about this.

Uh, did anyone, you know, hear anything, see any, you know, that kind of thing.

Is there any reputational things we need to be aware of?

And, um, he actually, at one point speaks with, well, actually at two different cases, he speaks with the mother and he actually speaks with the complaining witness, the child in this case.

That doesn't happen in most cases.

Typically there's animosity between the, the mother or the victim and us, you know, we, we don't have any contact, but as I told you before, the mom's kind of on our side.

She thinks that she doesn't know where this is coming from.

So she's perfectly willing to speak to our investigators.

So our investigator kind of sits down, there's a translator, he brings a translator and, uh, talks about things.

They do two interviews.

So the first interview, uh, uh, our investigator is like, do you, do you remember, does this sound familiar at all?

And he doesn't really even ask a question.

He's very open-ended, which is the opposite of how this was proceeding up to here.

He goes like, tell me, like, what's going on here.

You heard some of these things, what's going on here.

And she says a line that we're, she goes, well, they tell me, uh, that he did something to me.

And they tell me he didn't do something to me.

And that was, that was a, yeah, that was a line that was like, oh, we should follow up on that.

That's a very strange thing for, for someone who a few months ago was saying that, you know, acts of abuse occurred under very leading questions.

And when she said, they told me he did something and they told me he didn't, who was the, did she reference who they is?

No, not really.

That's kind of the mystery of it all.

We didn't know what she was talking about.

And, and, uh, our investigator kind of ended things there.

He was kind of like, well, I didn't expect that to happen.

So, so he actually came back and maybe he gave me a call at the time after he was done, but he came back the next day.

And we said, do you feel comfortable going out there one more time?

And, uh, you know, just seeing, you know, if we could ask a few more kind of follow-up questions on that.

And he said, yeah, absolutely.

No problem.

So he went back, uh, about a week later and just, he'd started.

He goes, do you remember saying last week, they said something, they, um, say you did, he did something to you, but they also said, uh, you know, he didn't.

Could you just expand on that a little bit?

And she says, oh yeah, he didn't do anything to me.

He didn't hurt me.

He's like, I'm not afraid of him at all.

You know, and so we were like, and this is, by the way, we also recorded all this with the party's permission.

And, uh, and so, yeah, okay.

Now we have a statement that basically, now this is a forensically trained interview here, you know, questioning a child using, holding a Mickey Mouse in one hand or something like that.

This is kind of a news reporter trying to do his job and just hoping he doesn't get, you know, kicked out.

And, uh, so that statement, we, we turn over to the DA and disclose it immediately.

We say, we have a statement that was under the lightest of questioning, basically saying that he didn't do anything to her.

She's not afraid of him.

And she delivered it with almost no prompting, you know?

So we're thinking, okay, at best we have, at worst, we have impeachable information.

If the complaining witness takes a stand down the line and says that he did something, now we can say, well, do you remember where you said that didn't happen?

And like, so worst case scenario, we have something that we can use.

Best case scenario.

Okay.

Why don't you follow up with some questions to this, you know, law enforcement, go out, talk to her again, see if anything changed that would make this a more difficult trial for the district attorney's office.

I don't think that ever happened.

Did they ever follow up?

I don't believe they did.

Well, and Anya, I think that their mentality was the mom is coaching the child.

Mom is coaching the child.

She's pulling the puppet strings here.

And she is telling her what to say.

So, come on.

What are you even trying to do here?

Obviously, this is the mom manipulating the child.

I think that was the theme.

And it was kind of our statement that we found was dismissed very quickly as, come on, you know, it's not any sign of innocence.

It's a sign of mother pulling the puppet strings.

It's only okay if the government manipulates a child into saying something.

But it's not okay if the parents do that.

Okay.

The government's allowed to pull the puppet strings.

You have to know who's pulling them.

That's okay.

So, what's the next development in the case?

Well, so the next development is a development that affected everyone is we kind of filed motions.

We did our hearings.

Nothing really huge happened.

And we were going to start trial on March 16th, 2020.

And the Friday before, basically, everything shuts down.

We're told the trial is adjourned and definitely.

The Rona.

The Rona hit.

Oh, Rona.

Like, again, first they came from March Madness, the NBA, and now they're taken away from trial.

I know.

It was really disappointing.

It was Corona Friday now for the rest of our lives this Friday.

I know.

Exactly.

Exactly.

So, we find out that things are adjourned indefinitely.

So, over the course of, let's say, March 2020 until, you know, the fall or the winter, when there's just a general pause on trial, we file, I think, four or five applications for release.

Basically saying, you know, he's having these horrible health conditions at the jail.

You know, he's not eating.

He's got infections.

He's got all this horrible stuff.

He can't sleep.

And we have a statement by the alleged complaining witness saying that nothing happened.

Could we consider electronic monitoring?

Could we consider release with conditions?

Could we consider cash bail that maybe him and his family could come up with?

No, it was all straight rebrand.

So, all right.

So, your client's looking at life because at some time in between June and July, your client did something to this girl.

We don't know when or where or really how, but she's had some weird thing about milk.

According to the babysitter who can't really tell you when or why or how and suspiciously didn't report anything right away if she's so good.

Anyways, okay.

Sounds like a solid case.

Yeah.

Yeah.

Sounds like a solid case for the DA.

Yeah.

Yeah.

And I think I probably Rob will touch on this.

Your client's stuck in custody.

He's stuck in custody.

He's not going anywhere, David.

No.

He's stuck like glue.

He kind of became a little bit apparent as this went on, specifically the trial itself, that the district attorney kind of wanted this to be over.

And there were certain offers.

We won't get too into it, but there were certain offers that were conveyed that we could have lived with that were not acceptable to the judge.

And they kind of were in a situation where they're just trying this case, which is falling apart.

Well, this is what kills me though.

They have a case that they think is falling apart, that they're trying to, you know, let's just, let's give them something.

I mean, aren't they supposed to like not go ahead if they don't have proof beyond a reasonable doubt?

Like, instead of trying to sell it for something, why go forward with trial?

I mean, this is the thing that just kills me when I hear these stories.

Wow.

Clarence Darrow here.

Yeah.

No, that's exactly what they should do.

Right.

I don't even think, Hey, Anya, I'd take, go back and interview the child again and see what's going to, what she might say that we'd take that.

Hey, if she says it happened, let's go right back to, to the trial.

But I don't think that conversation even occurred.

So Rob, tell us about you getting on the case with James.

What was that like?

Sure.

Well, listen, I was, I was very happy to work with James.

I think what's very important during a trial is doing a trial with somebody who you mesh well with and you work well together with.

And, you know, I think James and I really kind of gelled.

So I was excited to work with James.

Trials don't happen very often, you know, and for us in Dutchess County in general, jury trials, you know, they're kind of rare, you know, for our office as well.

So I was, you know, jumping at the chance to do it, jumping at the chance to work with James and it worked out.

So James, tell us about jury selection.

So jury selection, we, we really, you know, had to rack our brains to see how we could get jurors who could be open minded when they hear about horrible acts occurring to children.

And there's really no great way to do it.

But actually, one of our supervisors had talked about, well, why don't you ask questions about, ask if anyone has siblings and ask if they, when they growing up, did the siblings, did you ever know when your sibling was not telling the truth, when they were lying, when they were exaggerating?

How do you know, give different situations?

So we kind of ran with that and found, I think, a fairly playful way to distance ourselves from the kind of horrendous allegations and talk more about the veracity and the changing temperament of children as it relates to jurors' own experiences.

And I think that was a pretty good way to broach the subject matter.

And, yeah, what else did we kind of talk about for jury selection that you think was effective?

Yeah, I mean, I remember asking about, you know, some of the allegations of sexual misconduct in the media.

Like, when you first hear, as a juror, you first hear about an allegation against a politician or a celebrity that they did, you know, some type of sexual misconduct, do you immediately believe it or do you need some additional proof?

You know, do you hold off and say, well, listen, you know, there's an allegation, I don't know, I don't know the facts, I don't know any additional proof.

Or do you take them at their word and say that their word is enough?

And because they're simply making the allegation, then it must be true.

So we kind of wanted to get some of the responses about that.

Do you guys recall any interesting feedback from jurors or any exchanges you had with them, specific jurors?

So there was a time when we were doing juror questionnaires, which are pretty, you know, innocuous, like, what's your favorite hobby?

You know, are you a member of any clubs?

And there was this one juror that wanted to take us all out in the hallway and away from the jurors.

So we're like, oh, gosh, what's this guy going to say about his hobbies?

You know, where's this going?

And he actually just says, listen, I just want to be really careful.

And I just want to make sure I'm giving my full attention to this.

And I'm not being influenced by anyone else in the room or feel like I have to speed up immediately.

I'm like, I love this guy.

This is a conscientious juror that might stick up for his opinion when they go back.

So he tells a story about how his passion is cooking.

He loves cooking.

He's trained by a trained chef.

He's opened restaurants.

So I end up part of my jury voir dire.

I use a story about reasonable doubt and I use food.

One of the things I say is, you know, tell me about your favorite restaurant and your favorite meal.

Picture that in your head.

And what if the restaurant brought your meal out and it was half missing or wasn't complete?

Would you go back in the kitchen and make it for them?

Would you complete that meal for them?

Or would you put your hand up and say, this isn't enough.

Send it back.

That's to me kind of a little bit about reasonable doubt and your role as jurors.

So I picked him in the jury pool and I said, I know passion is, you know, your food.

Tell me what your favorite dish is.

He said, I think surf and turf.

So I said, sir, what if it comes, what if the meal comes out and there's no lobster?

Are you going to go in the kitchen and cook a lobster?

And he goes, hell no, I'd send it back.

I'm like, exactly.

Who else would send it back?

Hands go wild.

So that ended up being a really useful tool.

And it, and it completely piggybacked off what he told us in the hallway.

I like that.

I like that.

Very nice.

Do you have, did you have a specific type of juror in mind?

Like, did you want parents or did you not want parents?

You know, people with little kids or definitely stay away from that.

I mean, did you have like some sort of a MO going into it of what type of a jury you were looking for?

I think we wanted parents because, um, as all parents know, you know, kids commonly lie, you know, kids commonly make things up for seemingly no reason.

I don't think that you want someone who doesn't have any, any experience with kids at all, because you need someone that knows kids make things up, you know, and sometimes it's very random and sometimes there's no rational basis for it.

Um, but I think certainly you need people with kids or at least people that have experience with kids, whether it's young nieces or nephews or something like that.

We also wanted a few folks that, uh, English wasn't their first language.

And in Dutchess, it's, uh, used to be way more homogeneous.

Now there's more diversity, uh, than, than before.

And amazingly, we had, I think at least three people who English was not their first language.

I want to say we had someone maybe of, uh, Indian, uh, uh, descent, someone of Italian descent and someone, um, from the Philippines.

So we had a few people who were thinking, okay, maybe this idea that there is reasonable doubt could also be, there's a little bit of a translation issue.

Um, that would work in our favor, uh, as well.

And I, we got a few folks that way.

You know, you, we were talking about before, you know, who would, um, who would, um,

who would call the police if a five-year-old told them that they were sexually abused.

And that, that question was asked during, during, uh, one of the panels.

And every single juror raised their hand and said that if a five-year-old made this disclosure, they're calling the police.

And I think that became huge when, when the, um, when the neighbor testified.

At this time, I'd like to thank and acknowledge Ben and Denise Sanchez, our newest members to the A&G Patreon program for their support and contribution to the cause.

If you too would like to become a member and receive a shout out on an episode and or the unedited version, which usually contains extra facts, analysis, and banter, then please visit our website at anothernotguiltypod.com and click on the Patreon link.

Thank you.

All right.

All right.

Um, okay.

Well, let's talk about, um, opening statements then.

Yeah.

So this was an interesting strategy that we had to come up with.

Do we address the fact that there's going to be a child who's going to come and testify that these things happened and you have to keep an open mind that she's not sworn?

She may be mistaken.

She may be mistaken.

So I, I did, but I didn't really hit it too much.

I talked about, you know, reasonable doubt.

I talked about the very heavy handing handed police tactics that they were myopic of their investigation.

They only looked at one person.

They, um, they, you know, uh, spent hours trying to get him to say things and not letting him leave until he said certain things.

And then I talked about the fact that, you know, person who might testify is, is, uh, unsworn, which means that you need to find other corroboration.

You can't just take what she says and say that, that a crime happened.

So that was it.

It was pretty short, maybe two minutes.

So this seems a little like different than how we do things.

I mean, correct me if I'm wrong, David, but I mean, it's this whole sworn, not sworn thing is kind of weird.

I mean, here, I feel like they would do a hearing with the judge before the picking the jury or outside of the presence of the jury and do a, uh, a competency, basically voir dire on the child.

And then the, the judge would decide, Hey, this, you know, this witness, this child is, is not competent to, to testify, um, for the age or understanding or whatever.

And then just preclude the child from testifying at all.

But this is kind of weird.

It's like, here, here's a witness.

You don't need to believe them though, because they're not going to be sworn.

I don't know.

So that's something that this girl, there's something about this girl that made her unswearable.

I think it was just the age.

I think, you know, I mean, she was, you know, five when it happened.

Um, I think seven at the time she actually testified.

Um, I think the DA just saw that she was, she was too young to, you know, uh, to, to appreciate, you know, what, what she needs to, in order to be sworn.

Yeah.

And there's a statutory presumption.

I believe it's nine years old that anyone under nine, um, can't give, or is, is presumed to not be able to give sworn testimony.

That can be rebutted.

If the judge does a competency hearing or a swear ability hearing and finds that the person, even though they're under nine can do so.

But this person was much, much far under, under nine and kind of was evident in other facets of, of being interviewed that she really didn't necessarily know the difference between the truth and the lie.

So it was on the consent of everyone.

And the judge only did a very basic colloquy to see if she could give testimony that the jury could receive at all.

So James, you're saying your, your opening statement was short and sweet.

What was the prosecutor's opening statement like?

It was relatively short as well.

I think she said the things that she had to say, you know, she said, this person that trusts this, uh, this man, you know, took advantage of that.

You're going to hear his statements.

They're horrible.

You know, uh, basically we got them, you know, in his statements kind of thing.

It might've elevated the jury's expectations a little bit, but to her credit, what she did not say, she did not say that the child was going to get up there and say that this happened at all.

And I think that might have been her knowing.

I don't know if the child's going to show up to court.

I don't know if what they're going to say.

I have no clue.

I have no clue.

And I don't want to promise anything that I can't deliver.

So she might've said like, yeah, we have evidence.

And that might've got the jury's, the jurors hopes up a little bit.

You think?

Yeah.

I think that that might've been a pretty good way to go.

Actually.

You're going to hear something.

Just keep an open mind and sit down.

That's five seconds.

Yeah.

Usually that's how we, uh, approach a, a crappy case.

Yeah.

Just keep an open mind.

You're going to hear some stuff.

Keep an open mind.

By the end of it.

I'm not gonna tell you how or why, but by the end of it, it's going to be.

Yeah.

It's going to be all fine.

Don't worry about it.

Right.

Uh, all right.

So tell us, how does the evidence roll out for the people?

So listen, I'm going to hand this over to Rob because the first two witnesses, I believe

we kind of split things up that, uh, that Rob was going to, he was going to take the fall.

So he was going to cross-examine the child in the event that the child says that these

horrible things happen.

He's the one left holding the bag.

And, and Mr.

Uh, lead attorney gets to stand up and say confidently, listen, you should find this guy not guilty.

So he had, he had both the babysitter and the complaining witness here.

Hey, he did a marvelous job.

Take it away.

And that was the strategy too, is like for, for some reason, listen, if cross-examining

a child, it's a very, you know, very scary thing to do.

If I say something wrong or say something the jury doesn't like, well, you're going to be

hearing from somebody else during the closing.

So, you know, the, the guy holding something against, I'm sitting at the table, just listen

to James right now, you know?

So, um, but, uh, you know, the first witness was the neighbor, the, the, the first disclosure

witness.

Um, and what I really wanted to get out, get out from her is that, you know, she, she testified

that the girl was in pain.

And so she asked her what happened and then you had the disclosure.

Well, did, did you seek medical attention for, did you call the police?

Uh, no, you know, and then, uh, as James said, the indictment covered June and July.

Um, so her uncertainty about the date became huge.

So could it have been before June?

Could it have been May?

Well, maybe, I don't know.

Could it have been April?

Yeah.

I don't know.

I mean, it kind of blew me away that this witness had gave a four month span of this

and she wasn't even certain about that.

So, um, you know, attacking her credibility, her, you know, her reliability or lack thereof,

was, was, uh, I mean, 24th.

So wait, this is the, you said the neighbor.

She's also the babysitter.

Correct.

Okay.

Yeah.

And, and one thing that, that I, that I forgot to talk about in the investigation part

was we found a babysitter of our own who babysat during different time periods.

And basically we were going to call as our fact witness to say, yeah, she never observed

anything bad happen.

The child was happy.

She never disclosed anything.

So we kind of had our babysitter who was older and then they had their babysitter who was

on the younger side.

Um, and who, you know, had these startling accusations.

Man, I've heard of the battle of the experts, but not the battle of the babysitters before.

I know, right?

It was armed.

We had the better one though.

We had, we had a very kind of grandmotherly one who didn't smile, who took her time.

You know, she really seemed very conscientious and thoughtful.

She remembered dates.

Can you believe it?

So then, uh, who testified next?

So I believe it was, it was the girl and, and, and, uh, and Rob did probably the best

job of cross-examining that anyone could do in this situation.

I'm still stuck on this.

Like you can have a witness that's not sworn testify.

So it's like, I I'm still stuck on this.

It's kind of weird.

Did the judge somehow like announce to the jury, Hey, so we're going to have this witness

that you, eh, they're not really credible, but I mean, do they like give you some sort

of a preview to the jury of what to, how to take the testimony of someone who is not

reliable?

You know, there is a little bit of that.

And then there's, there's instructions at the end about corroboration that there needs

to be.

So you can't, so you can't convict someone on their words alone.

Right.

And you can't convict this person on her words alone, but his words and her words, that could

be enough.

So, you know, we're kind of in the battle of the unwinnables in that situation.

Um, but yeah, there, there was a little bit of instruction.

Like you're going to hear that, um, she's not going to raise her hand and say, just swear

the whole truth.

You know, I'm going to tell you more about that as the trial goes on, but you're not really

willing to infer anything right now.

And we'll talk about things during jury instructions.

It's a strange process, but, um, you know, that's how the New York statute is written.

So yeah.

How did, um, so how did her direct examination go?

Yeah.

I mean, she, she gave him nothing, you know, the answer to basically everything was no.

Um, and the D a who I felt for at this moment, you know, because in, in, in her mind, you

know, the cases, you know, falling apart before her eyes, you know, my main witness is getting

up here and saying that nothing happened.

You know, I think the D a tried to save it with, do you remember, um, telling the, uh,

the babysitter something.

And she said, no.

And I, I think she even testified that she didn't remember who that babysitter even was.

Um, so it did not go well for the D a on direct.

So then now are you like, in terms of your stellar cross, cross, cross examination, are you

decided if you even want to ask any questions or is that about to happen right now?

So what I did was, well, first of all, I had, uh, uh, you know, pages and pages of preparation

about, I was prepared for her to say something happened and, uh, I was going to get into it.

And I had pages of questions that I didn't need to ask.

Uh, so what I did ask was, you know, I said, I got up, I said, you know, thank you for,

for being here today.

Um, she had a stuffed rabbit with her on the stand.

I, I was some distance from her.

I thought it was an elephant.

So I said, is that a stuffed, uh, elephant you got there?

And she goes, no, it's a, it's a rabbit.

Oh, it's a rabbit.

I'm sorry.

Does your, does your rabbit have a name?

And she goes, no.

And I said, well, thank you.

Thank you for coming.

And I sat down.

Nice work.

I like it.

Nice work.

Beautiful.

I have a career in zoology.

If this lawyer thing doesn't work out, you know, I couldn't, couldn't exactly see.

It looked like an elephant from where I was at.

Very similar.

Uh, it's an easy, common mistake.

Well done.

Now, when you asked about the bunny, is that something you conferred with James about first?

Like this whole, like, no, I was shooting from the hip.

It was gorgeous.

That was shooting from the hip.

You know, I think what James said, you know, when it happened, when I was, when I stood

up, you know, James was like, don't ask, don't ask a freaking thing, man.

Don't say a word.

Uh, so, so I got up there.

I want, I wanted to say something, you know, uh, I didn't know exactly what I was going to

say.

And it was very off the top.

Rob went rogue.

He went rogue.

Wow.

James, did you shed a tear in that moment?

You know, you're just proud of him.

I was so happy.

He did such a good job.

Yeah.

I basically leaned in.

It was just like, just don't ask it.

Maybe words were used there, but don't ask a question.

And, uh, and then I saw him getting up.

I'm like, Oh, okay.

He had been turned up.

You're a hundred percent.

Right.

Very likable.

Very relatable.

He empowered the witness.

Um, and, uh, and I think it worked out great.

And actually we got complimented, um, by people on the other side.

Uh, about that, that it was kind of a mature attorney move to do that.

Other attorneys might've tried to, you know, ask questions that could have gone a different

direction.

So I think it was very, um, mature Rob on your behalf.

The only time I'll use that word with you, but very mature on your behalf.

Yeah.

I mean, obviously there was no need to, to get into the allegations.

Right.

But she got up there and said nothing happened.

So.

Okay.

Um, all right.

What happens, uh, next in trial?

Yeah.

I think the next day was, uh, or the next witnesses were the law enforcement witnesses.

They were the investigator, um, the, uh, polygraph examiner.

And then they introduced his statements, which were fairly lengthy.

So that took up a good half day, if not more.

And that was, I don't think it, it, um, you know, the jury heard the statements that we

were worried about, but they could play them as much as they wanted when they go in the

back, you know, um, room and, and they, the, the deliberation room.

And so I, I was, I was cross-examining all the law enforcement people.

And there was one guy that, that where nothing was disclosed.

So I, I didn't ask him too many questions.

I said, thank you for doing your job.

You know?

And the other guy who really went after my client, I tried to push back.

And I said, did you know, you, you made physical contact with my client 93 times.

You tapped his knee, you tapped his chest, you tapped his elbow.

Oh, it's ridiculous.

You watch this video and you think that this is, this is some kind of, these are like either

buddies or this guy's about to assault this guy.

You know, it was, it was very strange interactions that I think now where everyone's so concerned

about social distancing, those people watch this interview and are like, oh, this is very

strange.

All these personal boundaries were, were violated and they might've sympathized with our client

a good amount there in that moment.

Yeah.

So is that, so that was going in, you wanted to attack the, the way he conducted the interview,

right?

Exactly.

The techniques, the fact that he's several, several times he said that, hey, I know that

she's not lying.

I know the truth.

I need you to tell me the truth.

And the truth really meant that he assaulted her.

They, the truth meant what he was trying to get our client to say.

So I made it very clear.

Like you said, you knew the truth.

You didn't investigate this case, right?

You don't know if this person's lying.

You didn't polygraph anybody.

Right.

And, uh, and he actually admitted to it.

He said, yeah, yeah, it's a technique.

It's something we use.

Yeah.

And you wouldn't have stopped until he had, he got to some, something that was incriminating.

He pushed back on that, obviously.

No, no.

We're just trying to find out what happened.

Just the facts, ma'am kind of thing.

But I think it got flustered a little bit.

And I think the jury kind of saw that this was, um, maybe overhanded, especially the fact

that our client doesn't read.

Not only does he not speak English, he doesn't read or write Spanish.

He has no education.

The, uh, the, the power imbalance in that room could not be more clear.

I'm pretty impressed with your, uh, your detective skills of, of counting how many times he touched

your client.

I mean, that's, that's pretty impressive to, to pick up on that as being something that

you may want to highlight later on.

Did you, uh, ask the detective, is that part of your background training and experience

to be all touchy touchy with the, with the defendants?

Yeah.

Like were you in a blue man group or were you in some kind of improv troop that I don't

know about?

No, you know, I, I sat through, I watched, I watched that, that interview more times

than I can count.

I mean, almost in the triple digits.

I sat there several times and I counted every time he made physical contact with our client.

And I gave him a number and I said, you know, would you be surprised if this was the

number?

And he said, well, I don't know.

I didn't count.

And I was like, would you be surprised?

He goes, no.

You know?

So kind of right off, he was like, I know I made physical contact with him.

And that was more, they tried to cure it on re on redirect by saying, well, is there a

reason you try to do that?

And he said, well, you know, when there's a language barrier, we try to draw his attention.

Found that a little hard to believe.

You can draw someone's attention in many different ways.

You know, I don't go in foreign countries and just say, tap someone on the forehead until

they, you know, give me the, the, the directions I want.

But that was his, uh, kind of attempted rehabilitation there.

All right.

So then, uh, what's the next piece of evidence for the prosecution then?

So, so there's, there's a, there's an expert.

Well, actually there's two experts.

Um, one is an expert who talks about child abuse, accommodation syndrome.

I'll let Rob talk about it.

He did all the research on, on this woman.

And then the other person is a Hyman expert.

So, so she testified about just because someone's Hyman is intact does not mean that she wasn't

abused, which is very strange.

They actually have a term for it and it's called consistent abuse, even though there's no evidence

that abuse happened.

Yeah.

There should be questions.

It's a very strange thing.

Did the child ever examined, um, at, at a hospital, like a SART exam, the sexual assault

rape kit type thing.

Did they ever do that with this girl?

Yeah, they did.

So, so I actually jumped a little ahead there.

So they did that exam and, and the results did not indicate that there was any physical

abuse.

Um, and so they called an expert basically to say, well, just because there weren't signs

of abuse, doesn't mean that this person wasn't abused, you know?

So it was strange.

It was a strange way to kind of push back against science and, and say, don't believe the things

you're hearing because this could have happened regardless, you know?

So it was a strange process.

I don't think it really did anything for their case.

Um, but, uh, it was, it was interesting to examine or to cross examine someone who could be

considered a Hyman expert.

So they called an expert to say that there could, could have been, but it, we don't know,

but it could have been.

So just don't discontinue the lack of injuries.

Uh, as, and then did you cross examine them on anything or you just let it be?

That, that was, it was very brief.

You know, basically like, listen, this, this doesn't mean anything, right?

Like you, you know, nothing happened where we could be disproving a non-provable thing.

You know, it was very short.

And then, and then Rob questioned their expert who they call.

Who they call on every case, basically every case it, it, it, they call this person who

testifies about a variety of things, child abuse, accommodation syndrome.

And, uh, Rob, what'd you think about that?

How'd you prepare?

What do you even know what that is?

Child abuse, accommodation syndrome.

What's that mean?

Uh, yeah, no, I still don't know.

No.

So she gets up there and she, she tested, she speaks in generalities, right.

About like the dynamics of, of child abuse.

Um, but she doesn't speak about any specifics of, of, of that, of the case at hand.

She usually never interviews.

Well, usually never.

She, uh, usually does not interview the children, um, that are alleged to have been abused.

And she really doesn't say, you know, one way or the other, that abuse happened in this

particular case.

So she'll talk in generalities, you know, the jury could take it for what it's worth.

Generalities about what, what does she say?

About, she talks about delayed disclosure, uh, and, and reasons that a child may wait

to, to disclose abuse and things of that nature.

Um, but most importantly, never talking about what everybody's here for, which is the case

at hand.

And, you know, not surprisingly, uh, this expert and the expert, the Hyman expert that James

is talking about, those were the only two witnesses in the trial that the jury did not

ask for, uh, readbacks of their testimony for.

They asked for readbacks of everybody else except these two.

So, you know, take that for what it's worth.

I mean, I, I don't think, I don't know how much weight the jury gave to what these experts

said, but I assume not too much if they want to know from, you know, readbacks from everybody

else except them.

Um, did this expert ever talk to the victim beforehand or interview the victim or hear

about the reports, um, where, you know, the kid said nothing happened?

I mean, was she have any sort of personal interaction with this kid before she testified?

No.

And, and they're upfront with that.

You know, one of the first, uh, uh, questions from the prosecutor is, you know, you're not

familiar with the facts of this case, right?

You haven't been briefed on it.

You haven't interviewed the child.

You haven't looked at any of the evidence.

Um, and so they, you know, they, they, uh, you know, they asked those questions right

off the bat so that they're not testifying for that purpose.

They're testifying to provide, you know, in their minds, helpful background about the,

you know, the, uh, dynamics of child sex abuse.

Wow.

Wow.

Just compelling.

I don't know what to say.

She did make a joke about hoping she got paid, uh, for the day.

And I thought that was the perfect thing that that's all that the jury took away from it.

And that was great.

Aside from that, it did nothing.

All right.

So what was the next piece of evidence for the prosecution?

I think that's, is that it?

There's two law enforcement, two, two fact witnesses, two experts.

I think, I think that is their case in chief.

So we, we do our, our motion to dismiss at that point.

Okay.

So the prosecution rests.

Right.

And then, so what motion did you make?

We made a motion to dismiss basically that there was insufficient evidence to sustain

these charges, to present these charges to the jury.

And we kind of learned beforehand that the DA wasn't going to oppose this on the A2 felony,

which was a huge win.

That's a life charge.

Yeah.

That's a life charge.

That's, that's the, um, the predatory sexual assault against the child, the A2 felony.

There was no evidence brought up, um, uh, in the trial that there was any oral sex contact

between mouth and penis, you know?

So, um, it was on the consent of the district attorney.

The court dismissed that charge.

So it didn't even go to the jury.

So it went from three charges going to the jury just to two.

We still look at it seven years.

So we're still obviously very concerned.

We had the D felony and the misdemeanor.

So tell us about the presentation of the defense.

So we, we had a variety of people on our witness list.

And we honestly, we didn't really know who we were going to call and who we were at a

certain point we did, but we had the child's mom that we could have brought in.

But we found out that the child's mom had been arrested for, uh, in a different county

for, I believe, endangering the welfare of a child involving her daughter.

So we're thinking, man, do we want to put someone on the stand who is, uh, pending a misdemeanor

charge of, of, of her own?

And, um, and we ended up saying, no, I don't think we need it at this point.

We have some other things that we can do.

So the only two witnesses we called, um, was our babysitter, um, who basically said that,

uh, she, it was very relatively short testimony.

She took the stand and she's older.

She kind of has that abuela kind of disposition.

Um, very thorough, very thoughtful.

And we basically got her to say that she babe, she was the principal babysitter of the girl

in question during the exact same time period that that other babysitter said she was the

babysitter, which means someone's wrong or they're lying.

And, uh, and she was like, yeah, babysat four or five days a week.

Yup.

From end of May, all the way through to August, I was the babysitter.

Were you aware of any other babysitter?

No.

Um, did, did you ever observe anything that was,

um, that, that made you, uh, you know, worried about the safety of the girl?

No, she's a happy child.

Did she ever tell you anything that made you, you know, concerned?

No, not a thing.

So she basically said the child was fine.

I babysat during that time period.

I don't know what they're talking about.

Now, the last part is my ad lib, but that's the message we were trying to send was,

listen, you got some problems with the time period.

That babysitter is off.

She, your, your younger babysitter, the outcry witness, the milk, uh, disclosure person,

um, is either lying, covering something up, or they're hugely mistaken about dates.

So who testified next for the defense?

Yeah.

Well, the next person was, uh, the translator.

So the person that translated in that interview where our client gave concerning statements,

uh, initially the district attorney was, there was on the DA's witness list, but there was,

uh, I think some, we call it Jillio material, basically material, uh, uh, of, of some wrongfulness

or dishonesty or mistakes made by law enforcement that needs to be disclosed that could go to their

liability or their effectiveness as an investigator.

Well, in this case, there's a little bit of material about this witness,

um, about falsifying, uh, some kind of a document, uh, involving overtime years ago.

So they ended up not calling him.

And I said, Ooh, I really kind of want to call this person.

Now I can't impeach my own witness unless they're a hostile witness, which the standard for that

is pretty high.

And that really wasn't my intention, but they thought I was trying to call this witness to

embarrass him.

So they fought like hell to keep this guy out.

They called our supervisors.

They tried to get us in trouble.

They said, why are they trying to do this?

We stipulated on the, the interpreter, like why?

And the entire time, I just want to bring out the idea that these guys learn Spanish in

different countries.

And maybe there was small translation issues that could lead to statements being made that

the full weight is not known, but they thought I was trying to call him to embarrass him.

I would never do that.

Right.

But in this case, I really wasn't trying to do that.

So they fought like hell to keep him out.

Finally, they ended up agreeing because they realized that I can't impeach him and nor

do I want to.

I just want to talk about Venezuelan Spanish versus Honduran Spanish, which I thought was

very much my right.

And that basically is what I asked them about.

Where'd you learn Spanish?

Are there dialect differences?

What does this word mean?

Is it context specific?

Is it hard to interpret when there's three different Spanishes being spoken?

You did your best.

That was it.

It was really short, but they really tried to get me to not be able to do it.

And you didn't ask the interpreter if they made a mistake.

You're just bringing out the notion that there's different dialects.

Exactly.

Okay.

Nice.

And then your client didn't testify, right?

Oh, no.

No, not in this situation.

Now, I'm not opposed to that happening in other cases.

You know, sometimes, maybe it's the only way that you have a shot at getting an acquittal.

But in this case, we felt, I think there's some serious doubt here.

I don't think that there's any good reason for him to testify.

And he very intelligently accepted our advice.

And we think that was a good idea.

Yeah, the government didn't meet their burden.

Right.

Their evidence is very sketchy and questionable.

You don't need to have the jurors start looking at your client.

Just keep the focus on the government's case.

Exactly.

That's exactly the argument.

Yeah, the last thing you want is to focus on hug boners while your client's up there.

Let's keep talking about those hug boners.

That's great advice.

I think it applies to a lot of situations and you hit it right on the head.

Why?

I have an erection right now.

Maybe this is what the kids saw.

I just get them all the time.

I can't help.

Just randomly.

All right, man.

So tell us about your closing argument.

So the closing argument, it started with the food analogy.

Funny enough, you know, a huge piece is missing here.

And that's because the victim, the complaining witness showed up and said nothing happened.

That's your reasonable doubt.

You know, we could stop there.

And then I kind of went and we could stop there.

But why stop there?

There's so many other problems with this case, right?

I said, you saw the babysitter take the stand.

She had a smile on her face.

Who testifies about horrible abuse with a smile on their face?

She got real defensive when we asked her about her husband.

You know, you are the ones who judge credibility.

I want to point this out to you as reasons why you should not believe this person.

And I talked about the investigation, how it was an assault, how it was someone that my client had agreed to take a polygraph test.

They didn't even give him one.

They weren't interested in the truth.

They were interested in getting their version of the truth.

And they wouldn't stop until he said anything that was close to what they were looking for.

And I talked a little bit about our our case.

I said, we're not obligated to present the case at all.

But we did for you.

That's what we did.

That's how good people presented a case for you.

And then just kind of ended on like there's tons of reasonable doubt.

I think Rob had a great line that he gave me.

You know, there's so much doubt you could swim in it.

Basically, you know, we're talking about the just the level of like we kind of had this affect like we can't even believe we're this far.

Like, why are we?

What are we even doing here, guys?

And that was it.

Again, it wasn't too long.

It was longer.

It's probably 10 to 15 minutes long.

Oh, yeah.

Yeah.

That's short.

Yeah.

But I mean, this was a highly testimonial case that really wasn't documents.

It was all just like, you guys saw all these witnesses.

What do you think?

This is what we think.

What do you think?

And I think it was it was pretty effective, hopefully.

And it was fun.

It was fun to do.

It was it was impassioned, I think.

And the entire time we're doing this with a mask, too.

So I don't even know if every emotion was properly felt.

But I tried to do as much as I could.

You know, in terms of the closing, I mean, James really knocked it out of the park.

I mean, we had a lot of attorneys in our office very interested in the case.

They all came over and were watching on the second floor on a screen.

They weren't permitted to enter the courtroom because of, you know, COVID protocols.

But they're watching the closing on the screen.

And when James finished, you know, they all erupted in applause and cheered.

And, you know, which is not something you'd ordinarily be able to do if they were physically in the courtroom with us.

But now they all said great things.

And, you know, James killed it.

That's awesome.

And how long did the jurors deliberate for?

Five days, right, James?

Five days.

Wow.

Yeah, I know.

Wow, this is stressful.

And I was actually talking to one of my very good friends.

I was calling the mentor at the DA's office.

And he was saying that this, he used to be a public defender, actually.

He'd kind of seen both sides.

And he said, this is what kills me.

He goes, the trial, I don't have a problem with.

It's the waiting.

And I didn't necessarily feel that way 100%.

I was really happy with the trial.

I was like, okay, I can't really do anything.

I can just walk over and hear what the jury notes have to say.

But, yeah, it was brutal.

One of the days...

You know, James, for how cocky you felt during your closing argument.

You know, five days, right?

Yeah, that's right.

We don't get many not guilty verdicts in Dutchess.

And, again, I think things are changing.

I think we're moving in a different direction.

But, I mean, you might get two a decade.

I don't know.

So you could have a killer case.

And it just goes completely away.

So I don't think I was really feeling that cocky.

I just did.

I tried to maintain confidence the entire time.

But I always maintain, listen, there's a line of logic where they could,

a jury could very much say that the mother was manipulating the child.

They don't have to believe the child.

She's not giving sworn testimony.

They could look at his confession, his statements, and say, this is weird.

And they could convict.

I always thought it was, you know, maybe 50-50 that we get an acquittal on the D.

But, hey, we had life off the table.

So that was a huge confidence booster by itself.

All right.

So tell us about the reading of the verdicts then.

Oh, it was hard.

I don't know.

I have a Fitbit that kind of tells me what my poll says.

I was probably up to the 130s there.

First of all, we were going back.

I mean, we were 15, 20 times to read backs.

Like, we never knew if it was a verdict or if it was if they wanted to hear something

or get some kind of instruction.

For some reason, Rob, I mean, we were going over that day.

I think you and I both said the same thing.

We think we have a verdict now.

Because it was it was all the testimony had been heard.

They had an entire day the day before of deliberating.

There was nothing else to do.

I mean, I don't know unless they suddenly wanted the experts testimony.

We all both kind of looked at each other and said, we're walking to the verdict right now.

So, yeah, when the verdict was read, we were obviously extremely happy.

There was a delay, obviously a translation delay for our client.

So he didn't hear it at the exact same time.

But, you know, I think I probably made some kind of a gesture in court, like, you know, grabbing my shoulder or I tapped Rob on the shoulder or something like that.

But it was definitely quite quite a moment.

And I know a couple seconds later, our client felt it, too.

And just that you had all the time in.

So regardless of what happened on the misdemeanor, he knew he was walking out that day.

Nice.

So, yeah.

Tell us about your client.

I mean, how was he during the trial or the pretrial leading up?

Like, what were those interactions like all the way to?

He was stoic, right, James?

See, this guy was so calm throughout the entire thing and just expressionless, reactionless.

It was kind of strange.

But he he just remained just very calm, very quiet, sat there, didn't ask us too many questions when we had breaks.

I was kind of blown away by how calm he was being when when he was looking at life in prison.

Wow.

And then how was he after the verdict was read then?

Did he?

He was extremely grateful.

And he broke down and hugged us and cried.

He finally felt a sigh of relief when the last count was dismissed.

Well, James, Rob, great job, guys.

Great game plan.

Awesome work.

Love listening to this trial.

Yeah, that was great.

We appreciate it, guys.

This was I think this might have been.

It was the first, maybe the only felony acquittal in New York State post COVID.

I don't know.

I'm going to say that there was a few trials and they were all guilty.

There was a trial after us that was guilty.

So I think we might temporarily and I hope this doesn't stay for too long that we were the first COVID acquittal.

Hopefully we have others.

I know you guys are because if there was other not guilty, you'd be hearing about it on this podcast and we haven't heard about it yet.

Absolutely.

Absolutely.

Well, this is a pleasure, guys.

Thank you so much.

I love the podcast and we had a lot of fun.

Thank you.

Thank you so much for your story.

That's awesome.

Well, let's let's wrap it up with the question I ask all public defenders or any other guests we have on this is we'll start with James.

James, why why did you become a public defender?

Well, you know, my parents were both criminal justice, sociology professors, so that instilled in me a love of law period.

And I always ended up taking the side of the people that were had everything stacked against them.

I was always an underdog supporter.

So I always felt like that was my obligation to apply training to helping people that really had no training to balance the imbalance.

And I think public defenders do that majestically.

This is the era of the public defender.

I feel like more and more people are seeing the value that we add to the community.

And it's just an absolute pleasure to be part of that.

Yeah.

And what about you, Rob?

Why did you become a public defender?

Yeah.

Well, you know, being on on the other side of it, you know, I feel it's much more of a filling job as a defense attorney when you have an actual client there whose rights you're fighting for.

And, you know, it's it's far more rewarding than being a prosecutor.

I can say that for sure.

As far as the public defender's office goes, I went here.

I had a lot of friends that were already working here and had a great reputation.

And I firmly believe that, you know, the best attorneys in Dutchess County are not the private attorneys.

They're they're working right in the public defender's office.

I agree.

Yeah, Rob, let's let's use this as an opportunity to trash the prosecution.

Why did you become a why did you become a district attorney or a prosecutor?

And what did you not like about it that made you want to jump to the public defender's office?

Yeah, you know, this is just between us.

Nobody else is going to know.

Yeah.

So that was that was really my first job out of law school was was the D.A.'s office.

It was what, you know, what I thought I wanted to do.

I, you know, I wanted to wear the white hat.

I wanted to be the bringer of justice.

Right.

All that.

So I am far more comfortable on on on the other side.

Just just naturally, I feel, you know, it's it's it feels better for me to be going against the government, you know, being on the opposing side of the police and the authority and all that.

So I'm where I need to be.

All right.

All right.

All right.

All right.

Well, thanks for coming on the podcast.

Yeah.

And welcome to our side.

Yeah.

He's doing great so far.

Right.

I can't thank him enough.

Yeah.

And Anya, thanks for co-hosting today.

Always a pleasure to see you.

Thank you so much for having me.

It was fantastic.

Okay, guys.

Well, thanks for being on the podcast.

All right.

Talk to you later.

Hope you all enjoyed the episode this week.

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

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

Peace.

We'll be right back.