Don't Meth With The Neighborhood Watch – When Cops Overreach and the Defense Pushes Back

Here at Another Not Guilty, we appreciate your support. Don't forget to subscribe or follow us. And please visit our website at anothernotguiltypod.com. Do you have a Not Guilty story you'd like to share with A&G listeners? Visit our website to submit your info to be a guest. Want to check out our updated new A&G merch? Another great reason to check out our website. That's anothernotguiltypod.com. Now, without further ado, here's this week's episode of Another Not Guilty.

My client crouches down and then flips over both of these officers, both these law enforcement guys and himself so that all three of them flip over onto their backs. I mean, essentially a 360 flip, somersault, forward somersault onto the ground. These are big, big dudes. My guy is tall, but he's thin. He's rail thin.

And that's where, when I'm reading through the police report, I get a sense of, all right, this sounds exaggerated.

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

Objection.

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

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

In an unjust criminal system.

With a deck stacked against us.

Another not guilty.

All right, welcome back, everybody, to Another Not Guilty.

It's your boy, Davey D. here, bringing you the freshest not-guilties across America.

And today's not-guilties is probably going to be one of the more freshest not-guilties that we've come across in a long time.

Yeah, you see my boy, Charlie, there, the public defender in Arizona, shaking his head.

Yes, yes, he is.

But before we get to that, I want to introduce today's co-host.

I've known him for a long time, guys.

Listen, Another Not Guilty is something you need to know about me.

I have a twin brother.

His name is Dennis.

He's also a criminal defense attorney.

And he also represents indigent people as well.

So, yeah, he has a lot to bring to the show.

And we thought we'd finally save him for season four.

Because the ratings are starting to dip a little bit.

So, I'm starting to pull them out.

And we need to bring those ratings back up.

So, here we go, Dennis.

What's up?

How you doing?

Good, good.

It's good to be here.

Finally made it.

I know Mom was kind of pressuring Dave a little bit.

Why don't you let your brother in, too, you know?

And, anyways, thanks, Mom.

That's right, Dennis.

And I'm introducing you to my friends at Another Not Guilty.

So, keep it cool.

We talked about this.

But, you know, it's not about David and Dennis.

Even though sometimes it is about David and Dennis.

But today is about our awesome guests.

Two guests, actually, from your great state of Arizona.

The Public Defender, our guest today, is Charlie.

Charlie, how are you doing today?

Doing well.

Good morning to Dave.

Good afternoon to Dennis.

Who's the friend you brought along with you today?

Oh, that's right.

I've got my buddy, Daniel, here.

Daniel is a paralegal at our local Public Defender's office.

He graciously joined me for jury selection.

Had such a great time after I pulled him over across the street to the courthouse at 8.30 in the morning that he stuck around for the rest of the trial.

So, Daniel, go ahead.

Introduce yourself a little bit more.

Hi, guys.

It's great to be here.

Great to look at the twins first thing in the morning.

It's not first thing.

It's about 10.30 in Arizona.

And I think we have a good case for you.

All right.

Okay.

All right, Charlie.

So, what kind of case are you going to share with another Not Guilty Land today?

Well, we've got a core aggravated DUI.

In Arizona, aggravated DUI is charged with two counts on this particular case.

You've got...

Did you say aggravated DUI?

That sounds super serious.

What's an aggravated DUI?

Sounds really scary, doesn't it?

It's a regular DUI, but it's done, committed, allegedly, by somebody who doesn't have his driver's license.

It's either suspended, canceled, revoked, or they just never got it in the first place.

So, it takes it from a misdemeanor, typically, Class 1 misdemeanor, most serious misdemeanor in our jurisdiction,

to a Class 4 felony, which is about right in the middle of our seriousness of felonies.

So, that's Arizona's way of making sure, if you're going to have a DUI, at least be licensed when you do it.

Yeah, exactly.

If you're going to drive...

And then, what other charges was your client charged with?

He also had a resisting arrest.

Our jurisdiction, you can have resisting arrest as a felony for an active resistance.

You know, making movements, moving around, pulling away, maybe, you know, running might be active resistance, versus a Class 1 misdemeanor for passive resistance.

What are some examples of passive resistance, then?

Yeah, sitting on your butt and not moving.

I see it most often in this jurisdiction, when the cops just beat the crap out of you, and then charge you with passive resistance.

Yeah, that sounds about right.

So, Charlie, what did your aggravated felony DUI client, cop actively resisting client, allegedly do?

What are the police saying he did?

We've got a surveillance operation going on at a house in this neighborhood.

And what they see is my guy's truck pull into the driveway of this house that they're conducting surveillance on.

They think it's a drug house.

They think it's a flop house.

So, they've got at least two sets of eyes on it.

Undercover cops in unmarked vehicles, checking it out, just seeing who's coming in, who's coming out, that kind of thing.

They see my guy's truck, and they don't see who's driving it in.

They don't see who is in the truck, where they are in the truck, but they see it go in.

They drive by, see him outside the truck with at least one other person.

They don't see who's getting out of which side of the truck or anything like that.

And then, when they go back and park kind of a kiddie corner away, they see the truck come out.

Is that what the police report says?

Does it say they don't see who gets out of the truck?

Yeah, they're real honest and they're really upfront about, you know, at this point of the game, they don't know who's driving.

They don't know who drove there.

They don't know who drove when they left.

They tried to tail them afterwards, but they lost track of the vehicle.

The vehicle eventually goes to another part of the neighborhood, a mobile home park there, and they just don't keep track.

They don't see who's driving the entire time.

So, just to be clear, so these cops were doing surveillance on a flop house.

Is that the term you used?

Flop house?

Flop house, drug house, you know, something where they suspect drug activity is pervasive.

They see a truck pull up, some type of activity, the truck leaves, and they decide to follow that truck, right?

Yeah, they see something that they think is consistent with drug dealing activity, drug exchanges, a quick, you know, a quick stop, little activity, and then they leave real quickly, which they associate.

They say, all right, that's drug activity, we're going to tail this guy, and then they realize who at least one of these people is.

They recognize my client when he's in the parking lot.

They run his name, and they realize he has a suspended license.

So, now we've got somebody that if that person is driving a truck, they know that they can pull him over and try to find out what was going on, see if he's got anything on him.

But they still don't know if he's driving or not.

That's absolutely right.

They don't, and they're not trying to pretend like they saw him driving or anything like that.

They're not saying that they saw him drive at any point up to this part of the story here.

Okay, so then when the truck parks somewhere, where does the truck park then?

Initially, the truck parks inside this parking lot at the mobile home.

There's some more activity inside the parking lot.

The officers don't have an account of what had happened, but it's, again, a pretty short time.

Next thing that they see is the truck kind of pull out a little aggressively, reverse out of the lot, and pull back into the street, and then pull up pretty close behind one of the undercover officers in his, again, his unmarked truck.

My guy's truck parks at that time, and he gets out of the truck and confronts the driver of the truck, the driver of the undercover, the unmarked car.

And what happens?

Why do you confront him?

Well, he is eyeing this vehicle.

He recognizes the vehicle from down the street where they were at at the other house.

He thinks that he's seen this truck or this vehicle in the neighborhood before.

He gets out of the truck and says, hey, man, I'm part of Neighborhood Watch.

Are you a child molester?

You better not be a child molester.

And just, like, you know, rips into this undercover detective, you know, saying, like, hey, man, what are you doing here?

What's going on?

What's happening?

I'm Neighborhood Watch, you know, just trying to scare him.

I'm going to call the cops, you know, saying all these things and trying to, you know, get him out of the neighborhood, trying to shoo him away.

And, you know, if I remember from the report, the officer's talking into his other hand, into his right hand, into the walkie, saying, we need some backup over here.

So, eventually, another marked car, uniformed officer, pulls up and starts talking to my guy.

And really nice, kind, officer-friendly type, you know, walks in and says, hey, what's going on?

How you doing?

What's happening?

What's going on?

And my guy comes up to this uniformed officer and says, there's a child molester over there.

You've got to, you know, you've got to go get him.

And, obviously, the uniformed cop knows that's no child molester.

That's an undercover detective.

So, he's trying to calm him down.

He's trying to de-escalate the situation, right?

He's been on the force probably for three or four years doing patrol.

He sees these kinds of situations all the time.

His report says, like, I also think this guy's probably on something, too.

So, I don't want to just go straight on, hands up on this dude and escalate the situation.

I'm going to try to back off and I'm going to try to let him calm down.

That's a great response.

That's what we want to see, I think.

Well, and also, I think what's going on here is that the undercover officer does not know if he's been burned or not.

He doesn't know if he's been found out.

And so, the uniformed officer is trying to figure out if he knows that the person that he approached is an officer to protect the integrity of their undercover operation.

So, then this cop that shows up is treating the undercover cop like a civilian.

Right, exactly.

He's not interested in blowing that detective's cover.

So, the undercover detective takes it upon himself to come out of the truck, to come up on the situation.

They say that he took his badge out, announced himself, and said, you're under arrest for driving on a suspended license.

So, he goes hands on, grabs, I think, the client's right arm.

The uniformed officer grabs the left arm.

They're trying to pull his arms back.

They're trying to put him in cuffs, asking him to stop resisting, stop resisting, you're under arrest.

And my client, I think, is understandably pretty confused about the situation.

Some, you know, rando from this unmarked truck is coming up on him.

Maybe he had pulled out a badge.

So, I think he's pretty confused by the situation.

Eventually, you know, the officers both have hands on him, and they're struggling to get him under cuffs.

Do you know what your client was thinking on how the cops arrived there, why the cop even showed up?

You know, I don't think that he actually made the call.

So, I don't think that he thinks that they're responding to his call.

So, he actually, our client pretended to call the cops.

Our client took out his phone and pretended like he was calling the cops.

And so, I'm sure in his mind, he thought the other guy called the cops because as he was confronting him and he says, hey, why don't you get the fuck out of here?

I'm going to call the cops on you.

He actually got behind the car and went back by his own or the other vehicle that he allegedly drove and was pretending to call the cops.

And then when the uniformed cop was talking to him and the undercover cop comes walking up behind him, he's going, there he is.

There's the child molester.

Yeah, yeah.

He's pointing out at the undercover detective in the truck there, like, there's your man.

So, there's two uniformed cops and one undercover cop.

There's one uniformed cop.

There's one undercover detective.

There's a second plainclothes undercover detective who doesn't see a lot of this.

He's parked down the street.

He's facing the other way.

But which officers detain him?

Because you said it was two, right?

Right.

So, that's one of the undercover detectives and the uniformed officer who arrives on the scene.

Okay.

But not the undercover, not the one that was accused of being a child molester.

It was a different undercover.

It was him.

It was that one.

It was that same one who was accused of being the child molester.

So, my guy thinks that one of the pairs of hands on him is this, you know, child molester.

Just thinking he's going to have a real good time.

Of course, you resisted, right?

That was weird.

I mean, you're accusing a guy of a child molesting you.

And then he arrests you for driving on a suspended or without a license?

Yeah.

And the child molester goes hands on right away.

Yeah.

Oh, really?

Yeah.

He walks right out of the truck.

He goes right up to him.

Says that he took his badge out of his shirt.

But then, you know, yeah, goes hands on right away.

Right.

I mean, all those child molesters carry fake badges.

I wouldn't trust that shit.

Exactly.

He didn't have a white panel van.

Come with me into my van.

You're coming with me into my white van.

No windows.

Excuse me.

Can you help me find my police dog?

Okay.

So, your client, you said they put hands on him.

And then, how does your client react?

According to the police.

Yeah.

According to the police, he's very confused.

He's very, you know, reluctant to do exactly what this child molester, in his mind, is telling

him to do.

But at one point, what the officers claim is that as each of them is on an arm, my client

crouches down and then flips over both of these officers, both these law enforcement guys and

himself, so that all three of them flip over onto their backs.

I mean, essentially a 360 flip, somersault, forward somersault onto the ground.

And the uniformed officer, he's like 6'2", 200, the undercover guy.

I think he testified he was 6'2", 230 or something like that.

I mean, these are big, big dudes.

My guy is tall, but he's thin.

I mean, he's rail thin.

At the time, he's probably 6'3", and, you know, maybe 170, you know, $1.75, perhaps.

So that's where, when I'm reading through the police report, I get a sense of, all right,

this sounds exaggerated.

So at this point, what they're concerned about, what law enforcement is concerned about is a

possible DUI investigation.

They Mirandize my client, they talk to him, and, you know, they go forward with a DUI investigation.

He complains of some shoulder pain.

So as they're taking him in to the station, they kind of switch course and call a paramedic

and have a paramedic come meet them at the side of the road after they've driven kind

of towards the police station to get him booked in.

So the paramedic comes, checks him out, and then they take him to the station, or where do

they take him?

They go up to the hospital just because he is having some shoulder pain.

They go up there and they have him checked out.

Along the way, the officer is talking to him just kind of about, hey, man, you know, we

should do a blood test when we're up there.

Is that fine with you?

And, you know, trying to get him to consent to the blood draw.

And, you know, eventually they get up to the hospital to check out his shoulder, and they

do the blood draw up there at the hospital just to see if he's got anything on board.

When you say drugs on board, what do you mean on board?

Blood results, breath tests, something that's in your body while you're driving or in actual

physical control.

He had made admissions that, yeah, you know, methamphetamine sometime in the last 24 hours.

Well, tell us about the blood draw.

They do the blood draw.

And this particular officer is not qualified to draw blood.

He doesn't have his certification.

So they talk to the nursing staff at the hospital and say, hey, do you have anybody that can draw blood?

So they send over a person.

Yeah, we had the results.

The results showed an amount of methamphetamine.

There's no legal limit that you can drive with methamphetamine in your system in Arizona and I'm pretty sure any state.

You're saying that the cops in Arizona get licensed to do blood draws for DUI arrestees?

Yeah, they can go through a certification.

Our statute allows doctors and nurses.

They are qualified phlebotomists just by nature of their license or any other qualified person, which can include, you know, somebody who's not a full RN.

It can include officers that go through the training.

Is that not how it happens in other jurisdictions?

They ain't heard of that.

Yeah, out here in California, they contract with nursing staffs.

They're there just for the blood draws for DUIs.

You know, these nurses, they come into the – they actually go into the hospital.

Even though there's plenty of nurses in the hospital, the sheriff's nurse will come and take blood or go to the station and take blood.

They'll actually come out to the scene, the scene of the – where they're getting pulled over out on the highway and take blood there.

Just wherever you need them, they'll come.

It's like a – it's like a Uber blood draw, you know?

Hey, A&G fans.

Thanks for listening.

Got Facebook, Twitter, or Instagram?

Like us and follow us.

And please leave a comment if you like this episode.

And when you get the case, right, this is where you – now, this is where you come in as a public defender and you get the case, right?

Tell us about when you meet your client, what that's like.

Yeah, I think that my client had been out of custody the entire time.

I think that, you know, my client was not new to the criminal justice system.

He knew what he was facing.

He knew and understood pretty well his plea offer.

He refused to accept a plea offer and insisted – and I feel comfortable saying this because, you know, just of the circumstances.

He insisted that he wasn't the one driving, insisted that he was assaulted by the officers, not the other way around.

Oh, okay.

Can you tell us what he said happened then?

Or he said he wasn't driving, right?

So then who was driving?

Yeah.

So I feel even more comfortable about talking about that because his girlfriend at the time – we did an interview with her.

We talked to her about the situation, and she came to us, and she talked to our investigator and said, I was driving.

You know, we both got in the truck.

I pulled out of the lot there, and I'm the one that pulled in behind that officer's vehicle.

It wasn't my – you know, it wasn't him.

It was me.

He had to climb over me to get out of the driver's seat because our passenger seat door was broken.

That's why the officer saw him coming out of that one.

Did the girlfriend witness the interaction between your client and law enforcement?

She took off.

She did not see that part of it.

When she realized that a uniformed officer arrived on scene, she took off the other direction.

Why?

It was a misdemeanor warrant, and then I think what we were prepared to discuss at trial also is that it's – just like the prosecutors love to say, flight is evidence of consciousness and guilt.

We were going to say the same thing about her and claim that not only did she have this misdemeanor warrant, but also argue that she took off because she was driving, and she knew that she shouldn't have been driving either.

Whose truck was it?

It was a family truck.

It was – if I remember right, it was my client's mom's truck.

It wasn't registered to either one of them, but that was the truck that he primarily used for transportation.

His girlfriend was prepared to testify that she used it on occasion too if that came up.

Did any of the police say they saw her at the scene?

They did.

They admitted that, and then they also arrested her.

They chased her down and tracked her down and did interview her.

At the scene at the time, she said, I wasn't driving.

It wasn't me.

I don't think that she implicated him, but I don't think she admitted driving either.

So then in terms of building your defense, like what other work did you do?

Like did you go out and visit the crime scene, alleged crime scene, I guess?

Yeah.

On my cases, especially ones that I expect are going to go to trial or expect are going to be more serious, I always try to do a crime scene visit.

One of the things that we discovered is that the place where all this happened, we saw this on the body-worn camera.

We saw this.

We had a pretty good sense of this.

But where all this happened was a dirt parking lot in December in our jurisdiction, which just would have been total mud.

So we actually, we happened to go out there three years, almost to the date of this incident, to check out not only just kind of the conditions on the ground.

If we had some, you know, some snow, some ice, some water, what would it be like out there?

And it would be pretty much a mud pit.

It'd be like, you know, pigs squealing around and doing some mud wrestling out there.

If they did actually, you know, flip over from my guy.

What's the significance with the mud?

The significance of the mud is that when the guys are at the, when the uniformed officer and the client are up at the hospital, you know, my guy looks pretty, pretty roughed up.

He's got mud and dirt kind of all over his pants.

His shirt is off, but his, you know, the rest of him is pretty muddy.

The officer, you know, we catch some glimpses of him.

Doesn't look like he got very dirty at all.

We had pictures later of one of the undercover guy, you know, not a speck on him at all.

Nothing.

I don't even think his knees were dirty, which at the very least you'd expect that.

You'd also expect that if he got flipped over on his back, he'd have mud and dirt and dust or something all over the back of his clothes.

Nothing like that.

So that kind of raised our suspicions too about the government's account.

How are you feeling about your case when you get this piece of information?

Like, how are you feeling about it before this, this piece of evidence?

And then how are you feeling about it now?

The resisting arrest is, it's not really on my mind as something that's really driving this case.

If my guy's convicted on the egg Dewey, that's what's going to put him away for, for four to six years.

The judge, yeah, he could tack on another year, but I would expect a judge to probably run that concurrent.

So it's, it's good.

You know, I'm thinking, all right, well, I got three counts.

I might win this one.

But it's, you know, it's winning, winning a battle and losing the war.

So you're still, okay.

So the, you're really focused on the DUI defense and it's no drive, right?

You're taking, you're kind of taking the easy way out with the no drive, right?

We're going to go no drive.

We've got a client that says no drive.

We've got a witness, a particularly motivated witness.

Some might say that's going to come in and say she was driving, but we're going to go with no drive.

Okay.

So let's, let's talk about this.

Let's talk about the trial then.

You said there are some motions of limine that were done before the trial started.

What, what were they?

We wanted to narrow this case down into a driving on a suspended license investigation that kind of went awry.

And we were able to do that with the motions in limine, just some real basic 401, 402, 403 stuff to say that the flophouse discussion, the surveillance, the high crime area, the high crime neighborhood,

asking the judge to exclude all of that.

We didn't think that it was relevant to my guy's actual case, my guy's investigation, why the officers were conducting surveillance in the first place.

Oh, okay.

That's great.

That's, those are great.

And did the judge grant those motions to exclude evidence?

Those were by and large granted.

They weren't able to, to talk about the surveillance effort.

They weren't able to talk about the, the flophouse.

They weren't able to talk about any kind of suspicions of drug related activity at either the first house or the second place where they, they saw my guy.

I think it really helped us just to be able to, to use that to our benefit and allow the jury to, to kind of see what this really boils down to.

So then, uh, any other motions in Limini?

We had one other big one.

Um, it was, it was a foundational, uh, objection to the blood results themselves.

Our jurisdiction, uh, requires that, uh, blood results have to have some very basic level of foundation, uh, to, to be admitted into evidence.

Essentially, the government has to say, yeah, the blood was drawn by a doctor, a nurse, or some other qualified person.

Um, we didn't have any of that information.

We didn't have that witness.

We didn't have that witness to interview.

We didn't have any of her documents.

So the phlebotomist, the person that drew the blood at the hospital, uh, she's a, she's a ghost.

We have no idea who she is, where she is, what kind of qualifications she has.

The judge says, um, you know, despite his order to file any kind of these objections, uh, before trial, he says to the prosecutor, well, um, you know, Mr. Prosecutor, you know, your case, you know, whether or not you have the foundation to lay at trial.

I'm going to wait until this comes up at trial.

Uh, so he, he demurs on the, the motion to exclude.

Um, so I'm, I'm feeling pretty good.

I'm feeling pretty good about that.

You know, we, it's not granted, but it's going in the right direction, I think.

Right.

So you're, I mean, that's kind of like the whole case right there, right there.

That's all they have really in terms of the, uh, the meth, right?

It's our only, only out.

Huh?

All right.

Well, I guess, Charlie, it's time to do what Charlie does best then, huh?

That's right.

Um, panic and then, panic and then figure out what I'm going to do the next day.

Uh, all right.

So you can't sell the case.

It's time for trial.

That's what we love.

Um, all right.

So let's talk about, uh, the first day of trial and is this when Dan comes on board?

Yeah.

So I'm getting, I'm gathering all my stuff.

I've, I got my trial notebook.

I've got my materials.

I've got my statute book and I'm heading down the office, uh, hallway.

And I realized, uh, I, I don't have anyone else to help out with jury selection.

I don't have someone in the gallery helping out.

I don't have someone at the table with me to help out.

So I walked by Dan's office.

It's right before the last door here.

It was a Daniel grab a sticky pad, grab some post-it notes, come over and help, uh, help

me pick a jury.

How does that sound?

Um, and so he says, yeah, no problem.

All right, we'll do it.

Let's go.

So Dan, let me tell you, you didn't, I mean, you didn't know you're going to be a part of

that, of a trial that morning when you got out of bed, right?

No.

And it's a good thing.

I wore a colored shirt.

Well, I'm always thinking about the optics of trial.

You know, it's a beauty pageant.

It's, it's very much all about what the jury, what their opinion of you is, how much they

think you care about it.

And on the way over to the courthouse, I was telling Charlie, if, if I sit there for

jury selection and then I leave, it's going to look like I don't care.

I I've got to stay there the whole time.

Now I, I can't, I can't, you're not going to introduce me and then have me there for the

first like hour and a half.

And then I'm not going to be there the rest of the time.

What is that going to look like?

So I knew I was there for the long haul.

And then, and then Charlie, Daniel, how do you feel about, uh, helping out Charlie in

trial in general?

Like, I mean, have you worked with them before?

What do you think?

What do you think of Charlie in terms of, as a trial lawyer?

What's your, well, he's a very intelligent lawyer.

He's very fast on his feet.

I have worked with him before.

There was a trial that he was second chair on.

That was, uh, uh, a client who shot at the cops and he had me stand in the back of the

courtroom when he stood in the very other corner of the courtroom and pointed a

laser pointer at me while showing the jury, the proximity of, of the shot had me stretch

a, uh, a tape measure all the way across the courtroom for him as an expert was testifying.

So I knew he was going to do some shenanigans.

I knew he was going to have me on the job at some point in the trial.

Hey guys, it's David.

And I hope you're enjoying season four of Another Not Guilty so far.

This season is especially challenging for me as a public defender, bringing you the much

needed untold stories of our criminal system.

And I need your help.

If you would like to contribute to the podcast and become part of our Patreon program where

you can receive a special shout out and or the unedited version of an episode, then please

visit our website at anothernotguiltypod.com and click on the Patreon link.

I would also like to thank, acknowledge, and welcome Dante Hudson, Josh Carson, Matt Besman,

and Leah Abassi, our newest members to the A&G Patreon program.

Thank you for your contributions and support.

All right, nice.

Okay, well then let's talk about jury selection then, Charlie.

How did that go?

We had a few questions that I thought were, I tried to design them to try to get jurors

that had experiences with law enforcement, maybe patrolling their neighborhoods, making sure

that that was a familiar experience with at least some of them, just to show that there are

neighborhoods where officers do just kind of drive by and might just come up on this, on

the situation, that that wouldn't be that strange in some places in town.

Exactly what Charlie was just talking about actually came into play as the jury unfolded.

And this is one of my favorite things that attorneys do during jury selection.

When they use it, not only to see who they have, but also to plant seeds for later on in

the trial and, and he did a really good job of, of laying the groundwork for the argument that

there was a saturation of police officers at this scene.

Oh, okay.

After you excluded the evidence of the, of the whole Flophouse investigation.

Now you're saying that there's too many cops for, uh, for suspended lights or, uh, driving

on no license.

You like that?

Oh, great.

That's good.

I love it.

Of course.

I love it.

Given that this is a cop credibility case.

Um, we, we had, if I remember, right, we had a couple law enforcement officers that, that

made it to the pool.

Um, you know, we talked about with them specifically, um, whether or not they would believe a law enforcement

officer, um, over, uh, an individual, uh, citizen or civilian, uh, witness, um, trying to,

to show to the rest of the, the jurors that, Hey, you know, even these law enforcement guys,

they're not going to believe somebody in blue just because of, of who they are.

Well, and that's the, that's the hard part is, is, is, is for Charlie trying to get an officer

struck for cause while not alienating the rest of the jurors, because it's like, so you're

a retired sergeant and you actually trained one of the officers who's going to testify today,

but there's, you're going to be absolutely, you're not going to have any bias, right?

No, no.

Why would I have bias?

I forgot.

I forgot about that.

One of the jurors knew the actual officer that was involved in the case.

I trained him.

I forgot about that entirely.

It's a small town, Dave.

And he still didn't get struck for cause because he said what he, what the judge needed to hear.

He said, I can be fair.

I can be impartial.

I can be a neutral observer, dispassionate juror and all of this.

And Charlie had a, has a really good relationship with all of his clients, but he had a very

good relationship with our client.

And I remember during the process of striking jurors that he really involved the client and

said, Hey, come on, pull your chair over here and take a look at this.

This is your trial.

We're going to need you to be comfortable with the people that were, were striking off your

jury.

What did you see?

And I thought that was very effective in just keeping him engaged and keeping him, uh,

feeling like he was getting his day in court.

I always bring a notepad.

I always bring a pen for my client and I make sure that I, that they know that they should

be taking notes.

They should be writing down questions.

They should be thinking about things and, and seem as though that they're in a part of

it, uh, part of the trial as, as much as they can, because the jury will notice that.

And they did notice that.

How, how's the client at this point?

Well, he, he's, he's definitely anxious.

Um, I am sitting at council's table with Charlie, like in between the client and Charlie.

And there was a lot of like, you know, side conversations with him about stop making faces.

I don't think that woman hates you.

She's just another juror.

If you have a question, just write it down in your notebook.

You know, the usual client, uh, care that goes along with the council table.

Oh man.

Okay.

So then let's talk about opening statements then like, uh, uh, uh, go ahead, Charlie.

What was opening statements?

Like, you know, why, one of the things that I had mentioned to the prosecutor, um, I said,

you know, we have this like pending evidentiary issue.

Um, do you have a good faith basis to say to the jury that they're going to hear evidence

of the blood draw, um, because if you, I don't think that you can ethically refer to a piece

of evidence that you think might not be admitted.

Um, the, I want to give him a little bit of credit.

He might've thought about this on his own.

It might not have been part of his prepared opening.

Um, but he didn't mention the blood results.

He didn't talk about that.

And for Charlie's opening, he never said to his credit that you're going to hear an officer

lie to you, but he said that officers make mistakes maybe 50 times.

Let's talk about, yeah.

So what was your opening like then?

I think that just like Daniel said, uh, you're almost never going to, uh, you know, to score

points with the jury.

If you're going to talk about officers, um, misstating or, or lying or anything like that

there, the jury is not going to believe that these officers lied about this flip.

They're not going to believe that they fabricated this flip.

So we've got to present it as you're going to hear evidence about the, uh, you know, about

the mistaken belief that these officers had.

Um, you're going to hear, uh, testimony about deescalation techniques.

You're going to hear, uh, testimony, uh, about deescalation techniques that were not used

or were abandoned just kind of the, the narrative that, uh, the official government account is,

is not going to be supported by the evidence that you hear.

Okay.

Now it's time for the state, for the prosecution to put on their case.

So tell us about the first witness they rolled out with.

So they roll out the very first witnesses, the guy that we haven't talked about at all

in this situation where they start with their case agent, uh, the detective who's, uh, who's

just kind of off to the side and not observing any of this.

And I don't have any kind of sense about really what he brought to the table at all.

So what would, tell us about your cross-examination of this witness, I guess.

You know, I've, I've got two different areas that I'm going to explore with this guy.

He's been on the force.

He's been a detective, I think for probably 15 years.

He's very familiar with policies and procedures.

So I'm going to run through the relevant parts of our local law enforcement's handbook with

him.

We're going to talk about de-escalation and we're going to talk about active versus passive

resistance.

And we're going to have him testify about what his handbook says to do in certain situations

to show that, Hey, under these facts, law enforcement's handbook says that this isn't active resistance.

It's a, it's more of a passive resistance situation.

You know, another thing, and Daniel, you might've forgotten about this, but, uh, we didn't

have any kind of maps.

We didn't have any kind of description, um, really of, of where this happened, where any

of this was, was going down.

So we printed out, you know, some Google printouts and, and had the officer kind of set the stage

about where they were in the neighborhood, um, you know, uh, surveilling this guy from,

from house to house and from block to block, uh, within this, you know, probably 10 block

radius.

So we, we had, uh, Daniel bring over the Elmo, the overhead projector.

Daniel did everything he was supposed to do.

He, he flicked on the lights, he tested it.

And then timeout, let's back up a little bit.

Before the trial started, I asked Charlie, do you want me to hook this up now?

Um, and he's like, no, I don't need it right now.

I won't need it for a while and we'll have a break.

I said, okay, I'm just getting into this.

I had rolled the Elmo.

Do you guys know what an Elmo is?

It's yes.

It's yeah, go ahead.

Oh, who wants to explain what an Elmo is?

It's just like, it projects at your, you put a piece of paper on top of it and it projects

onto a screen.

What's on the piece of paper, but it projects onto a wall.

So it's like a, it's a pretty simple piece of equipment.

So I wasn't super nervous about it, but then he's like, okay, I need to use it.

And he's like, he's looking at me, making hand motions, like get up here.

I need to use the Elmo right now.

Completely caught off guard.

I go up there.

I turn it on.

The light doesn't come on.

The light blows, the light blows.

I'm not even kidding you.

The light blows and the, and, and the jury's raising their hands saying, I can't see it.

And I'm thinking, no, you can't see it.

Cause the light's blown.

Um, I was red in the face.

I was sweating.

I could feel the sweat trickling down my armpit.

I'm standing.

There's this witness officer in full uniform on the stand waiting for us to get this work

out.

And this is when I knew Charlie was a genius.

He walks over, takes out his cell phone, turns the light on the flashlight on and says,

here, just hold this.

And I, I literally held his flashlight over the document and it projected onto the screen.

And I was up there for maybe four and a half, five minutes as he asked them questions, complete

disaster averted.

And, uh, we got through it.

You just, you just MacGyvered that shit.

Whoa.

They don't teach that in law school, do they?

They, I didn't take that class.

No, I slept in that day if they, if they taught it.

So you could do that.

You just put your cell phone light onto the Elmo and then the light will go through and

then project out.

It works.

If your, if your overhead bulb is burnt out, if that one's not working, uh, then, then you

can do that.

We can, we can do that if the rest of the machine's functioning.

Dan also, uh, when he started at the public defender's office, we didn't have anything like

that.

We didn't have that kind of equipment.

He found that for five bucks at the university surplus store too.

So credit where credit is due on that, man.

It got us through about eight jury trials and then it stopped in the middle of five bucks

plus spent.

Uh, all right.

So who's the next, the next witness for the prosecution?

Next witness at this stage is if, if I remember right, it was the, uh, other undercover officer,

the, the child molester, the predator that was traipsing around the neighborhood.

So he gets in, he's actually retired at this point.

This is long enough later that, uh, that he's retired from law enforcement.

He's in some kind of, uh, you know, private business doesn't really, you know, have this

kind of case on his mind.

Doesn't, uh, doesn't really put his full effort and full attention and his testimony.

So same kind of thing.

He's testifying as somebody who can't talk about the flop house, who can't talk about

the concerted surveillance effort and is appearing to the jury to be an undercover officer who

is, you know, patrolling for suspended licenses.

So eventually, you know, he gets to his part of the testimony where he's talking about going

hands-on with my guy, pulling out his badge, uh, rushing over to him and trying to put his

hands behind his back.

And then, you know, he describes the flip in a real, just nonchalant matter, just like it

wasn't a big deal.

You know, like, uh, then, you know, we both had hands on him and then he flipped us over.

Um, and then we eventually got him arrested and then took him, took him in.

I was done at that point.

So I didn't have anything more to say.

I know this happened three years ago, but this just wasn't a big deal to him ever.

Um, and, and certainly not after he's retired from the forest too.

So yeah, did you like pull out the pictures and how'd you, how'd you cross them?

Yeah.

So the cross-examination goes, I think exactly how you'd predict, um, this wasn't anything,

uh, special or crazy.

We, we took out the pictures and said, I, you know, you recognize yourself here.

Uh, you see this, uh, the front of your, of your body here.

We've got closeups on your arm, any dirt, any mud here on your arm, any dirt, any mud on

your other arm, your legs, your, your other leg, um, and anything on your front.

And then, um, you know, we officer, we, we don't detective, we don't have any pictures

of your back.

Is there, is there any reason for that?

So, well, I don't think I had anything on my back.

So we didn't take pictures of that.

So, I mean, if he had been flipped over into this mud pit, um, yeah, that would have been

relevant.

They would have taken pictures of it.

Uh, I think at that point, that's where we're starting to think, all right, well, this

is, this is going well.

They don't even have pictures of, uh, of the back of his, his clothes there.

It's just not something that, that really came up at all.

Who testifies next for the prosecution?

I think that this is the time of the trial where we do a, uh, investigation.

We do a questioning of a witness outside the presence of the jury.

The, uh, the prosecutor is still trying to get this blood in and what he has asked the judge

to do is allow him to present testimony, um, just to the judge, uh, of an HR director of

the hospital.

Uh, an HR director who has reviewed this employee who took the blood, uh, reviewed that person's

file, uh, and can testify as to her qualifications.

So just to be clear, like, so they were never able, they were never able to find the actual

phlebotomist.

Right.

So they bring in someone from HR to testify about the phlebotomist's qualifications to

draw blood.

Right.

Yeah.

This is outside of the jury because the jury is removed from the courtroom and we're just

having a special hearing to determine whether or not the jury can even hear this evidence.

Right.

Exactly.

Yeah.

We get her in and then, um, she testifies about the contents of the HR file and it's a higher

letter.

It's a resume.

It's a degree certificate.

It's not, it's not a degree.

It's a certification, um, of a two year program that this person had to be a medical assistant

or lab technician or something like that.

Uh, and then she also provided testimony about this position's job description too.

So, you know, I open, it's, it's a little theatrical, but I open my statute book, uh, and

I, you know, read directly from the foundational language and say, you know, has this person ever

drawn blood before?

She says, I don't know.

Has this person, um, ever had their, uh, their, their blood results, uh, evaluated or reviewed?

I don't know.

And we go through those foundational questions.

All right.

And so then, um, how does the judge rule then?

Uh, judge rules, the, the blood is excluded.

It's not coming in.

Uh, so that's a big weight off of my chest at that point.

Um, feeling, feeling really good.

Cause I know that I'm going to get a directed verdict.

Um, uh, rule 20 motion will be granted, uh, to at least lop off that aggravated DUI at

the close of the state's case.

That's the heavy charge.

That's the one charge you were worried about.

Now we still have the aggravated DUI impaired.

So there's still a possibility of conviction on that one.

Um, so we're not out of the woods yet.

Wait, how, how is there a possibility of aggravated DUI impaired when there's no evidence of methamphetamine?

At that point, they would rely on, on my client's admissions and statements that he had used

recently enough, um, to at least allow the prosecutor to argue that, uh, that he had meth in his blood,

I should say.

Right.

Well, he did, he did flip two officers onto his back with the, that type of strength.

He must've been on methamphetamine.

Superhuman strength.

PCP or something like that.

Right.

Exactly.

Yeah.

Um, okay.

So big win there with the ruling.

Uh, all right.

So the state can't bring in the flip evidence of the blood draw.

And, uh, so what happens next in trial?

Right.

So, um, the, the state at that point, they bring in their last witness.

Is this the DRE then?

This will be the DRE guy.

He's going to be coming in and testifying as the other officer on the scene, the uniformed officer who's,

who's also, uh, there.

Um, my, my supervisor warned me about this particular officer.

They, she said, you know, the jury, they're going to,

they're going to love you, uh, after you, uh, cross-examined the first two detectives because

those guys are old and crusty, but this other officer, the jury is going to like that officer

more than they like you.

So I just wanted to warn you about that.

Um, and I think that she was right.

He was a really nice, um, smiley, happy guy.

What do you testify about?

Well, so he talks about getting the call, uh, over the radio to explain kind of why,

why he's coming over.

He's coming over for backup.

He's coming over to be a uniformed presence and confront this guy.

Um, so he's talking about how he comes up and, you know, he's, he's trying to be the neighborhood

officer, uh, and trying to be the guy that diffuses the situation.

That's clearly deescalating or that's, that's clearly escalating, trying to use some of the

tactics, uh, some, some of the techniques that we described with the first witness.

Um, some of his training that, uh, that was trying to take this down a couple of notches.

Um, and he, he also testified that it did just didn't really work out.

It just didn't really, um, seem to accomplish anything.

And that kind of gave this, the state to an out to argue about why the undercover officer

did what he did.

This wasn't getting deescalated.

It was just going to have to, to end.

His, his talking points was, were, he was agitated and he was grinding his teeth.

He must've said that as many times as, as Charlie said, that officers make mistakes in his opening.

This officer agitated and grinding teeth just as many times as he could.

Yeah, that was, that was definitely the theme, um, uh, of his testimony.

So he's, he's talking about that and then, uh, he's, he's describing real similar to the

previous, uh, undercover detective, how they go hands-on.

My guy flips them, uh, over the mud.

Um, we go through on, on cross-examination, you know, the, the pictures of, of everything.

And he's got a pretty, pretty clean, uh, uniform as well.

Um, so again, not a lot of physical evidence to, to back up that account of the flip.

Very nice.

And, um, and then it's, is, uh, is Daniel doing the pictures on the Elmo again with the,

the cell phone or.

We retired the Elmo, um, and we, we were able to use the, the DA's, uh, the projector and

his computer with all of his exhibits listed on it.

So we just, you know, oh gosh, our, our machine's broken.

Can, can we just use yours?

And I think it got to the point where I was asking the prosecutor to flip to the next picture

eventually just kind of using him as, as the assistant there.

That was nice.

I've got my notes here and it goes, uh, um, introducing exhibit six.

So picture of jeans, introducing exhibit pictures of pants, introducing exhibit seven, a picture

of shirt.

And then it, and it might not say, oh, you judge yawns loudly.

We were just very methodical, very methodical.

So then, uh, that's, is that the close of evidence for the people then?

Yeah.

The state rests at that point and then we're ready to make our motions.

All right.

And you're, what kind of motions are we talking about?

Motions to dismiss, right?

Certain charges.

Yep.

Our directed verdicts at that point.

And I think at this stage, I had talked to a few colleagues in my office and said, you

know, I, I'm not feeling great about a motion, you know, a, a, a directed verdict motion for

the count one for the impaired.

And I know, I, I know I got to make it.

Um, and, and I had a lot of support from my colleagues saying like, you got to make it

and you're going to win it.

And they, they helped me craft the arguments there too.

Um, the count to the aggravated DUI, just presence of, of drugs.

Uh, that one, that one came off real easily.

That was, uh, I think maybe the prosecutor didn't even object to that.

Um, but we also asked for a directed verdict on the DUI impaired using the argument that there's

not sufficient evidence, um, that the client was actually impaired that, yeah, he might've

been using, he might've had it on board.

Uh, he might've used the night before, according to his testimony, according to his statements.

Um, but he wasn't actually impaired and, you know, they didn't have any kind of observation

of driving behaviors, really hardly any driving at all, but then didn't have any other kind

of a testimony or description about how his actual driving was affected.

Um, so we, we made motions to dismiss on, on both of those and we won, uh, both of them.

So we got the, the aggravated DUI counts one and counts two, uh, dismissed at the close of

the state's evidence was, was the DA upset about, uh, the impaired game, uh, granted on

the direct directed verdict.

Yeah.

The mood changed.

Uh, the trial changed.

Um, you saw, uh, he mailed it in.

I mean, you could just see his body language was completely different.

So Charlie, then now it's time for the defense case.

Do you put on a defense?

We decide not to our, our, our, our two witnesses would have been the girlfriend who only reason

that we would have needed her is to establish that she was the one driving, not our client.

Uh, we don't have any driving charges now.

She didn't witness the resisting at that point.

Um, so we decide now we're good.

We're fine.

Um, we're not going to call her.

Our client is our other possible witness.

Well, for the jury, they come back and they're told you're not deciding a DUI anymore.

Those counts are over with.

And then they hear, oh, and the defense doesn't have any witnesses.

So it was just became very anticlimactic all of a sudden.

I mean, okay.

So, all right.

Time for closing arguments then.

Charlie, how does it go?

Yeah, I think that just like Daniel said, uh, prosecutors kind of mailing it in.

He only has this one count to argue now.

Um, one of the things that was pretty important to all of this for the, for the last remaining

count here was the jury instructions.

You know, I, I mentioned that we have like a resisting arrest for active resistance and a

passive resistance.

Um, we, the, the passive resistance is not a lesser included of active, so we couldn't

ask for it.

The prosecutor couldn't ask for it.

The only way that the jury would have been able to convict him of passive, uh, is if we

would have both agreed to making that, uh, an option for the jury.

Um, you know, I think that we had made the tactical decision not to do that, not to even

approach that topic.

Um, but we did ask the jury or ask the judge to read the passive resistance, uh, jury instruction,

uh, to be able to argue to the jury.

Hey guys, this is not what he did.

He didn't do active resistance.

He did passive resistance.

Here's the statutory language.

You cannot convict him of this, but this is what he did.

He did the, the passive, not the active.

And while Charlie is saying this in closing arguments, the client is like grabbing my shirt

and saying, he's saying I'm guilty.

Why is he doing this?

He's saying I did it.

Um, I'm like, just, just let him finish.

Okay.

Um, all right.

So it's time for jury deliberations.

How long did the jury deliberate for?

I, I remember, I think about an 45 minutes or an hour or so.

Um, we had enough time to go back across the street, get a coffee, get a cookie, settle down,

um, start packing away some things.

And then, uh, and then we got the call.

Um, we, we came back over and, you know, we, uh, we get the, the NG on that, uh, on that

last count.

Um, our, our client is very, very happy.

His family is there.

They're very, very happy.

His family was there.

They were, tell us about his support system that was there throughout the trial.

Yeah.

I mean, a lot of these, well, first our courtroom is, is, is split with an aisle down the middle,

uh, that's separated with a bar.

Like a lot of courtrooms are, and there's pews on both sides where, where people either sit

on the state side or, or the defense side.

And we've done trials where there's nobody on the defense side.

And, and, um, this definitely was not the case.

We do what we always do, which is to recruit the interns and whoever else can come and sit,

um, in the courtroom just to show that it's not empty on that side.

But he brought friends, uh, he, he brought the flagstaff who's who four or five different

people every day, kind of, and they're recognizing the officers and the officers recognizing them.

It was, it was, it was a small town.

It was very small town.

You know, his mom was also there the entire time too.

And, and, uh, he lives with his mom.

He cares for her.

She's elderly and, and, uh, pretty medically fragile.

Um, so every, every so often we'd have to break and he'd have to change out oxygen

tanks for her.

And, you know, it's something that we didn't, yeah, we, we, we didn't.

We didn't use it.

Um, it was there.

I don't know if that played into the jury's considerations at all.

I don't think it did.

And we, we certainly didn't plan it that way.

Um, but his mom was there every day through trial and, you know, just having that kind

of presence too, I think is also real helpful.

Are you, is he changing the oxygen tanks in front of the jury or are they, uh, outside?

We, we tried to schedule that during breaks.

Yeah.

He said he didn't use it.

I don't know.

Your timing was kind of, it's kind of sus on that.

There's no, excuse me, your honor.

May we take a break?

My client needs to change his mother's oxygen.

I don't remember, but my memory might be wrong about that.

I would trust Daniel's memory better than me.

Well, and Charlie, and Charlie does some great things.

He, he has a way of, he always has his, he, he always has his clients show up with their

woo, but their outfit kind of jacked off to the side.

And then he, he waits till the jury rolls in and then he fixes their shirt for them right

in front of the jury.

He's got it.

One, I don't think you can say jacked off even in the podcast.

And then two, I gotta say it's not planned.

You know, Charlie, did you pull out a napkin and lick it and wash it, wipe their face too?

A little peanut butter and jelly on their face.

I think it's, I, but in all seriousness, I think it's really important for, for all people,

everyone involved in the criminal justice system to see us touching our clients and like showing

empathy to them.

I, I, I joked about the pandemic, you know, when it first came, I, I told my colleagues

that 75% of my advocacy is being able to put my hand on their shoulder and, you know, just

show that these are, these are people.

And every chance I get to do that, whether it's in front of a jury, whether it's in front

of the judge, it's something that needs to happen.

If I got to fix a tie, I've got to fix a tie, but I, I'm not going to be reluctant to do

that because I think it is important to show that, that side of, of empathy and, and, you

know, make sure that you're portraying your clients in the light that makes them look like

regular people because they are regular people.

It's very effective.

So, I mean, Charlie, you did, you did everything you could, did not go to trial.

You, you tried to sell the case.

You had to go all the way to the not guilty, ended up being the hero, even though you didn't

want to be, cause you're just, you're just there for your clients.

Um, want to say great job, uh, on this case.

It sounds like you seem like a pretty exceptional lawyer.

And, and it's one of those cases that the first thing the client says to Charlie is, I told

you we could win this.

I've been telling you.

I've been telling you for the last year that we could win this case.

Why wouldn't you listen to me?

I told you we could win it.

Oh, and so, so Charlie, uh, what is it about being a public defender that, that drew you

to the, to the career or the, or the job, or what did you like about being a public defender?

I think the biggest thing was interacting with those clients and helping them at their lowest

moments.

Uh, it's something that I've been able to do a lot of in my new job.

We're doing a lot of evictions right now.

We're doing a lot of people, you know, with, with recent job losses and families torn apart,

being able to, to help them at their worst and help them portray themselves as, as something

more than their worst moment.

Um, it's been, I think really, really gratifying to be able to do that in the public defender

context too.

You're talking about people that are looking at decades and decades of their lives, uh,

in prison and for, for them to be in that situation without somebody who's competent,

without somebody who cares about them.

Uh, I, I don't want that to happen.

So I, I wanted to make sure that I was the, you know, the knowledgeable, the empathetic,

uh, criminal defense attorney, um, who just happened to be a public defender, making sure

that I was given all of my clients the most at every step of the stages.

Nice.

And Dan, thanks for being on the show today and jumping in and helping out with the story,

just like you did with, uh, Charlie and the trial.

Uh, how long, how long have you been with the public defender's office as a paralegal for?

So I've been with this office for going on five years.

It's pretty close to five years.

And, uh, I've been in the legal field for 18 years.

It's been a, a pretty wild ride and I love the war stories.

So I love you guys' podcast and I just hope that you guys keep, keep up the good work,

spreading the word.

Thanks guys.

Thanks for being on a podcast.

And Dennis, thanks for co-hosting today.

It's good to see you guys.

I know.

I've just been a fan the whole time and I'm a part of it.

That's great.

It's awesome.

Yeah.

Yeah.

That's what drew you to be a co-host on the podcast.

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.