Cash Rules Everything Around Me – When a Scratch Isn't Domestic Violence

All right, my A&Gers, we're back with another fantastic episode of Another Not Guilty with

the dope crew from Cincinnati, Dallas, and Rachel at the helm. I just love having them on the team,

love having them lift our voices as public defenders and defense attorneys, telling our

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justice as a society if defense attorneys are able to do their job because there's a lot of

garbage and bullshit out there disguised as the government being helpful and protecting the

citizens when in fact many times it's the opposite. Also, Dallas and Rachel have started a new thing

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

I challenge you to go back and look at that video where the cop told you that there's blood on this

guy's hand and try to find the blood and then try to find any mark on her neck consistent with the

choke, you know, with her being choked. Like, and there should be something because he allegedly choked

her after she was punched and had all this blood on her. And so she's got blood running all down her.

There should be blood. There should be bloody handprints on her neck. There aren't. There are

no bruises on her face. There's just nothing. 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-guilty as public defenders get on a daily basis.

In an unjust criminal system.

With a deck stacked against us.

Another not-guilty.

All right, all right, A&Gers. Welcome back to another episode of Another Not Guilty.

I'm Dallas Guttman. I'm a public defender in Cincinnati, Ohio. That's Hamilton County for those

who are keeping score. And I'm here with my best friend and my colleague, Rachel McKay.

Hey, everyone. I'm Rachel McKay. Again, not live from Cincinnati, Ohio, bringing you the

freshest not-guilties across the nation. And we are back today with another NG out of just up the

highway, Dayton. So we have Elizabeth and Barry here today. You guys want to introduce yourselves?

Yeah, my name is Barry Gilmer, and I'm with the Public Defender's Office in Montgomery County, Ohio.

I'm Elizabeth McKinley. I am also at the Public Defender's Office up here in Montgomery County, Ohio.

And you might remember Elizabeth from the last Not Guilty that Rachel and I did. And she talked about

how she did two trials in a row, two juries in a row, back to back. And so this is one of those

juries, right, Elizabeth? It is. So this is the first jury of the two. This is what started the

whole thing. And then the one from the last episode was the second one. She's a beast.

She can't be stopped. Wait, so this was Tuesday and that one was Wednesday?

This was Wednesday and that one was Thursday.

And she still went to work Friday.

I did.

Disgusting.

All right, so let's get into it. What kind of case are we looking at here?

So he's charged with domestic violence and assault. It's something that the Dayton City

prosecutors do. Anytime they have a domestic violence, they also charge an assault. They

have, like, this bullshit reasoning as to why they do it, where they'll tell the jury, like,

during Bourdier that, oh, we charge both things because sometimes we can't prove the assault

or the relationship, you know, that they're a family or household member. But really, I think

it's so that they can make offers that aren't offers. And that was something that happened

in this case where, you know, they'll offer to plead to the domestic violence and will

dismiss the assault.

And can you say more about that in Ohio when they charge something in the alternate? What's

the difference between those two charges?

So the only difference in the domestic violence and assault is that the domestic violence requires

that the victim be a family or household member.

What do they have to prove for family or household member?

So household member, obviously, you know, somebody living with them. Family, you're looking

at somebody who they're related to. In this case, what they would have to prove is that he

was married to the victim, which he was currently married. They were estranged, but still technically

married.

And what are some of the, like, collateral consequences or consequences of a conviction of domestic violence?

So, you know, as a first degree misdemeanor, it's a max 180 days jail, $1,000 fine. But the

bigger consequences, I don't want to say bigger, is one is just that you can't seal a domestic

violence. And then once you have domestic violence on your record, if you get a subsequent domestic

violence, it enhances that one. So in this case, if he had been convicted of this and then got another

domestic violence, it would become a felony. And then you also, under federal law, can't own a firearm

anymore. It makes it difficult to get housing. Job searches become difficult. And specifically

in this case, my client was actually on federal, I think he was on federal probation or parole. I don't

quite remember.

I think it was probation.

Yeah. If he were to get, if he got any conviction in this case, anything that, you know, indicated

that he had assaulted the victim or rather the complainant, I don't really want to call her

a victim, I guess. The complainant in this case that he was going to do, I think that his

attorney on the federal case was saying like nine months. What was the offer again? The offer was

plead to the domestic violence, dismiss the assault. Oh, plead to the charge that's not expungible

and escalates? Yeah. Sick. No thanks. And what's the state saying happened? So if you read, you know,

looking at the police report, it was he's out with friends and then he comes home to her and gets upset

because he's drunk and something, you know, she's got like, he's got money there. And then he just

walks over to her and he's standing over top of her and then punches her twice. Like, like grown

man, she's sitting down on the couch and he punches her twice in the face. And then that's essentially

their, their whole narrative. Uh, the cops also said like they saw blood on his hands, which

just pretty interesting because there was not blood on his hands and he's wearing like an all white

outfit basically. And there's not a single bit of blood on him. Yeah. And then, oh, and then they

didn't do a strangulation charge surprisingly. Uh, but she said that he had tried to choke her too.

How's the client feeling at this point? I think rightfully so. Right. He was pretty indignant

that this, that they even had these charges. Um, cause he came to court with, with his phone

and has shown me all these pictures from after he got out of jail where, um, the complainant had

basically stayed the weekend in his apartment and threw a party and trashed his apartment and stole

a ton of cash, just thousands of dollars gone. And, uh, I think he, like he even showed me pictures

from his son's room where it was clear that somebody had stayed the night in his son's room

because there were used prophylactics on the night in the hand.

Oh my God. And so this is after he got out of jail after being arrested on this charge?

Yes. Okay. So something happens that night. He gets arrested. He goes to jail. The alleged victim

then has a party in his house that lasts possibly multiple days. And then he bonds out of jail

and a ton of money's gone. Yes. Cool. What's his version of the story?

His version is that she wasn't even supposed to be there. Like she doesn't live there. They haven't

been together for months, you know, potentially years, but at least, I think he said like at least

seven months, they had not been like under the same roof at all. Um, and that he came home after he,

you know, he did say he was out hanging out in Cincinnati with some friends. Um, he comes home

and he sees her there and he sees all of his cash on a table and like the cash was there. Cause he,

he has a really, he has a pretty decent job. He builds, um, like gas stations and he gets pretty

sizable quarterly bonuses. And because he's, you know, he travels so much when he gets these bonuses,

he just gets it out in cash because he knows that when he gets sent to Pennsylvania or Georgia and

tries to use a card that they're going to shut his card down. So he just keeps a lot of it in cash.

Um, she wants that cash. Yeah. Yeah. So she's sitting there with his cash and then she starts like

taking money and he goes over to grab the money from her. And so it ends up being the struggle where

she's got the money in her hand, sort of like up close to her face and he's trying to grab it away

from her. And then it's like, it's cash. It's not like it's the most friction. It doesn't have the

highest rate of friction. It does not. And they just, both of their hands fly back. The money just

fucking poofs up into the air and then her fingernails go and hit her on the lip. And that's what created

the cut that was on her lip. And that's where all this blood was from. This sounds like a scene from

the movie casino or something like that. Yeah. Okay. So client stories didn't happen. Clients. Well,

yeah. Clients said that there was an incident, right? It's just that he didn't actually hit her.

So she essentially hit herself, uh, when the money went flying. And I mean, I think the jury believed

it. So she gets mad and then calls the police. Yeah. Who called the police? Neighbor called the

police. Yep. So then a neighbor called the police, police come client gets arrested. Okay. Any other

type of like preparation, uh, investigation, anything in the evidence that you got that was like

particularly, um, exciting to you or, uh, nerve wracking? The nerve wracking thing was the,

the pictures that they took of her. Okay. Yeah. Tell us about the pictures. She had blood

all down the front of her shirt. She's wearing a white t-shirt. So of course, you know, it shows up

bright red. Um, and like at first glance, like it looks like, Holy crap, this girl just got the shit beat

out of her, but it's really all from just like a single tiny cut on her lip where it looked to me

like it was in the shape of a fingernail. And of course he's got no blood on him and he's wearing

this, like, I think it was a Michael Jordan, like Jersey and basketball shorts. Um, and like,

it was like a white Jersey and white pants or white shorts. And there's not a single drop of blood on

him. Um, so that was kind of interesting. And then the other thing that was, that really gave us

something for trial was, uh, one of the officers takes him into the stairwell outside of his apartment

and starts like talking to him and saying like, well, you know, of course we're going to, you know,

he's like, why are you arresting me? Why are you doing this? Well, of course we're going to when

I walk in and I see, you know, this girl with blood all over herself. And then you're standing there

like, and then he goes, he's like, but I didn't touch her. And he was like, yeah, you did. He's

like, look, there's blood on your hand. And he like looks down and the guy's like, what are you

talking about? My client's like, where's, what are you, where's the blood? And he goes and the

officer and I'm glad he, it happened because he points his like camera down when he leans down

and he points at the guy's hand. And he's like, it's right there. And so like, I'm sitting, I pause

it. And I was like, the hell is he talking about? Like there, there was no blood whatsoever. His,

like the palms of his hand looked like every part, it was just homogenous. It looked the same. It did

not, there was no blood and I have no idea what the hell he was talking about. All right. What other

pretrial investigation did you do? I was just, the investigator's job was simple in this one.

Basically, I just had him reach out to the complainant and see what her version of the story

was. Try to find any inconsistencies there. And then also games to see like what she actually

wanted to happen. And she, her story was fairly consistent with the police report, but she also

told him that she was like, I'm not coming to court anymore. I'm done with those guys.

And she was, she was there saying that like the whole time, all the way, I mean, all the way up

until, I don't know, I guess a few days before trial. Did something happen? Did your client like

piss her off or something? Or did they threaten her? They meaning the prosecutor? Yeah. I think they

might've threatened her with charges because, um, I mean, one, there was the, you know, the incident

over the weekend, right? Cause, and he actually did call the cops and file a police report on that,

but they just didn't do anything. And the other one, and he showed me video of it and he showed video

to the officers and he showed video to the prosecutor when he went down to see the prosecutor and they

never took charges on this. He had video of her assaulting him while this case was pending.

And the only thing I can think is that, and this is all conjecture, right? I had no idea if,

if the prosecutor went and was like, look, I've got you on camera assaulting this guy or you, you know,

and we can file those charges or you can show up and participate in this trial and try to convict

him because we think he's worse or something. Yeah. So during the pendency of the case, there's two times

where client tries to file charges against the prosecuting witness or complaining witness or

alleged victim, whatever your jurisdiction calls it. One is because she had a multiple day party in

his apartment. The second he got her in his house, the second he got arrested. And he thinks she also

stole a ton of money during that. And then another day he's home at his house and she busts in

and assaults him. And he goes to the police on both of those occasions and they don't do anything.

It was weird because she showed up to the first pretrial and we got this crap offer. And then

my client asked me to file a motion to get him off of house arrest. And I, you know, I was like,

okay, you know, I'll see what I can do. Um, cause I'd already gotten privileges to be able to,

you know, go and travel with this, uh, house arrest monitor. But then he brought it to my attention

that any house, like any monitor that he's on these, the boots that he wore for his job won't go over

top of the house arrest monitor. So he's now not able to work. And because of the curfew, it was

requiring him to drive all the way to Kentucky and then drive back before, you know, before curfew.

So I filed a motion to, you know, to get him off of house arrest or, well, I guess it's not

necessarily house arrest at that point, right? It's just electronic monitoring. Um, and I show up to

that and the, uh, the complainant was there. I asked what, you know, she would talk to me and

she said, yeah, I was like, okay, so what do you want to see happen with this case? And she just

looks at, she's like, I just want it to be over with. And I asked her, well, well, what does that

mean to you? Like, do you want him to plead guilty to a domestic violence? Because that's what

the offer is. And she's, she looks at me, she's no, I told the prosecutor, I want to drop this case.

I don't want anything to do with it. I was like, well, that's strange. Like, are you sure you told

him in no uncertain terms? Like, Hey, I want to, I don't want anything to do with this. I want to

dismiss this. And she was like, I, yeah. And I was like, well, I, you know, I'm not telling you what

to do, but if that's what you want, you, I think maybe you need to be more clear. And then I asked

her about the bond review and she said, I don't care if he's on house arrest or not. He can be off

if he wants. Great. So, so I got that and I was like, well, this sounds like this is a bad case for

the state. And I leave the courtroom and this is, you know, before the case is called. And then I come

back in and the victim advocates, they're talking to, um, talking to the complainant. And I start

hearing just like weird stuff that kind of freaked me out because it was like, this lady's supposed to

be her advocate, right? Like she's supposed to be on this girl's side, like her voice, like help her

be heard as she wants to be heard. And this victim advocate is bullying her, telling her that she has

to go forward and that it's not her choice. And that just because, you know, it's like, yeah,

you want to drop it, but the state decides whether or not to do that. And, and you don't have any say

it was weird. She was telling her like, suck it up. And I went back into judge's chambers with the

because I thought, well, that doesn't seem right. Like this, you're not an arm of the state,

you know, you're supposed to be the arm of the victim. And they both just looked at me like,

well, that's their choice. So you said that in chambers and the, the state and the judge both

just said that that is her job. Yeah. Yep. Yeah. I mean, it made total. Great. So we did have the

hearing anyway. Um, and judge releases him from house arrest. So we got that. Awesome. Or yeah,

gets the monitor off of him. So we got that win. Um, and then after that, um, the, the complainant

stopped showing up to court. And that's where I was thinking this case is going to get dismissed.

My, one of my favorite pre-trials was, um, before we started, you know, before it was like, you know,

what, fine, just set up for trial. We'll see if she shows to the final pre-trial that they always set

before our juries. Um, was the prosecutor said, cause I was like, Hey, you know, can we, why don't you

dismiss this? The, the complainant's not here. You know, we should dismiss for fair to prosecute.

And the prosecutor goes, well, she's been here so many times. I, I just don't understand why she's

not here, why she's not showing up anymore. And I looked at him and I was like, well, didn't she tell

you she wanted to dismiss the case? And he was like, yeah. And it was just like, maybe that's why

she's not here. I can't imagine why she wouldn't be here. Yeah. I think we ended up with three final

pre, um, but she didn't show up to any of those three final pre-trials. We haven't heard from you,

Liz. How are you feeling about the case of this final pre-trials? So, so I was somewhat under the

impression that it would probably go away. Um, Barry said, quote, this is getting dismissed and

quote, and then I just felt that. Yeah, no, he was like, this is, this is, this is probably going to

go away. Like, you know, it'll be fine. Um, and so I was like, Oh, okay. You know, we're, we're good.

She didn't show up. She's not going to show up to trial. Um, but you know, we still prepped as if

we were going to have a trial, um, figured out, you know, what we were going to do, kind of what

arguments we were going to make. Um, but I, I was like, okay, yeah, I'm going to have a nice

Wednesday to work on my other case with Nicole. Famous last words. So let's talk about this,

this Wednesday, this fated Wednesday. Um, so you get there and she's there now what?

No, really? That was the best part. We got there and she wasn't there. Like when we were

about to pick the jury and we go back in chambers and I was like, where's, where's, where's your

victim? What are you talking about? Like the state saying like, Oh, well, yeah, she's definitely

going to show up. And I was like, we're about to pick a jury. Like you want to pick a jury

and then like waste everybody's time, like on the hopes that this person is going to show

up after the jury. And he was like, this is unbelievable that the, the, that the judge

let this go. And this is all the like potential jurors are filing into the courtroom, like

getting their seats, you know, like ready to go. And so is the judge unconcerned that their

only witness is not there? Unconcerned. Yeah. My, so my client's there and that was your client

feel. Yeah. How's your, how's your client? He was absolutely livid. Um, so first off he's there

in, in just plain work clothes. Like he just got done building a gas station or like he's going to

go. Yeah. And I had an, I had an intern. We tried to get the, we had the intern run. I was like,

Hey, can you go back to the office and get in the closet and try and get some, some clothes for them,

him that are, you know, more appropriate for a jury trial. At what point did client realize this

is actually going? And what was his response? Um, he realized it was going when they came into the

room and said, okay, you don't have any more time to wait for clothes, get your client into the

courtroom. So we had a trial with him in his work clothes. You know what though? We do that.

It was fine. It's fine. Especially on like, I think on muni cases, it's fine.

Yeah. Unless it's something crazy, like, you know, I heart milfs or something like that.

I'm not that worried about it.

Like a weed hat or something. It's like a OVI shirt that says I did it. Yeah. Guilty as charged.

I'm like, Hey, can you flip it inside out? All right. So why dear?

There were some interesting moments, but Liz is the one that did for dear.

So Liz, tell us about it then. Tell us, I want to hear about the,

what you did in those interesting moments.

the biggest things I think we wanted to focus on were obviously in DV cases, you know, who,

who has family, you know, family members, friends, loved ones, anyone that has had, you know,

domestic violence committed against them, um, and accused of domestic violence, just kind of to

figure that out. Cause it's such like, um, you know, it can be such a personal topic for people.

Um, I think that was kind of the biggest thing we were going for, um, at least in my questions.

Um, and then what else did I ask Barry? I mean, that got a lot of people off for calls.

Yeah. Can you say more about that? Kind of what, what questions were you asking to get

to people's beliefs about DV charges or their own life experiences?

Yeah. So usually when I do that, cause I've done a few DV juries, um,

it's more just, you know, like who is it to you? Like how did that impact you? Um,

one question I really like to ask on those is like, what, what is your thought on like the

believe all victims, um, type stance? Cause some people do hold that belief, um, and kind of

things about like the me too movement, um, along those lines. So that's kind of where I go with it.

And, you know, when I do it, you always want to, or I personally like to kind of dig in a little bit,

even if it's a sidebar, cause sometimes people don't feel comfortable sharing stuff out in the

open like that, which totally understandable. Um, and so, you know, if they had to go to sidebar,

we would do that, but just kind of to like get it out of them, whether or not they could put that

aside and whether or not they were biased to that. Yeah. So you ask, Hey everyone, what,

what are your thoughts on the statement? Believe all victims. Yeah. And some people spoke up,

uh, somebody got off the cause because of, uh, they said they'd always be on the cop side,

I think. Oh yeah. And multiple people, because they said, um, like they had been victims of abuse

and, or, uh, knew somebody who's a victim of abuse. And so they could not, uh, you know,

focus or, you know, forget that bias during the trial. And my favorite for cause was, um,

the woman who she, you know, she had initially said like something along those lines, like I could not

not be, uh, was it unbiased, but it was like close enough that the state was like, Oh, she said, well,

you know, maybe. And I was like, also judge, she's been knitting this entire time.

Not in that order.

She had a whole setup. She had like the yarn on the knitting thing and it was on the bench next to her

and she was just knitting away the whole time. She's like knitting into the alternate where the

other jurors pretending that she wasn't knitting. I don't know. Were they bothered? I don't think

they were bothered. They're probably jealous. I should've thought of that. I should've brought

my pottery wheel next time. Um, all right. So any other like interesting moments? Um, I think we

had a couple of bats and challenges. Two or three. And when the state offered a race neutral reason,

do you remember what they said? I don't. It was the dumbest shit I've ever heard. Basically he was

saying, Oh, well the victim's black. Oh yeah. You did say that. He said me striking this black

person from the jury is not racist because the alleged victim is black. Yeah. I don't think

that's a racist. I don't think that's. I don't think it was either. I'm sorry. You misunderstood

the assignment. It does. They can just, whatever. They can just kind of say anything. They'll get

tried. Any other interesting things about voir dire? Oh, the alternate. He was a convicted

felon. Can, yeah. Can you say more about that? So did it come up in voir dire that he had a felony

conviction? So yeah. So the judge asked, like that was one of his like preliminary questions. Um,

and I think the judge thought because he was a convicted felon, he couldn't serve. Um, but since

the laws have changed recently in Ohio, um, we determined that he could. Okay. And the state didn't

strike him. Okay. But so client stress and you guys are through voir dire and now we're at opening

statements, right? Yes. So states was pretty cookie cutter. Um, this, I think that's might be where he

explained if he didn't in voir dire, why they charge both domestic violence and assault. Um, you know,

he went through the elements and, um, you know, he talked about, he, he kind of went through just the

report and think, this is what you're going to hear. You're going to hear from these people and

blah, blah, blah. She's covered in blood and all these other things. And I don't know if he mentioned

that the officer was going to say something about seeing blood on the hand or not. Um, but yeah,

that's pretty much where it was. And, and then I did our opening and I just went through the story,

um, told him what they're going to see and, and how, you know, and acted out like, you know, this is

what, what happened essentially is that she popped herself in the mouth, uh, because she was, she was

trying to get his money and that the whole case was pretty much about, about the money. Uh, you know,

she wasn't supposed to be there, you know, she's not supposed to be taking his money. Um, I don't

think I went into the, the weekend party event. Your theme is kind of cash rules, everything pretty

much. Yeah. Yeah. The cream theme. Cream theme. All right. So openings are done. Now first witness,

who does the state call? Did they call the victim first? I believe they called the

complainant first. Um, on direct, she really committed to him standing over top of her and

punching down. But during, so I did the cross of the complainant and I, um, managed some,

I don't know how, but I did, um, to get her to reenact the pulling the money to her face,

like talking about the struggle. And I was like, so you, you pulled it back towards your face like

this. And she was like, yeah. Oh, so she admitted that there was a struggle over the money because

initially, didn't she say that he just walked in and punched her in the face twice?

Yeah. One big thing we kind of focused on too, is like, she was on the couch and he was above her

and like, she was pulling down and he would be pulling up. And so kind of like the movement of

her arms that they would be coming like down to her face, not like, you know, somewhere else to get

hit. Yeah. I thought there was some inconsistency. I thought you were saying that, like, she said that

at the beginning that he just like came in and punched her in the face and then on the stand

said there was like some type of struggle over money.

So I think the struggle over money did, was inconsistent. I think that was somewhat new.

Okay.

Um, and I might, I don't know if that was a pivot, right? Like, like the prosecutor, cause I did

like pantomime it during the opening. So like, this is what happened. And, and then I, I think that

that's where that came up. Like, Oh, you know, there was a struggle, right? Yeah. Well, yeah,

of course there was, but, but that's not how I got injured. Like.

Got it. Got it. So they were embracing this, what actually happened. Yeah.

Were you able to point out that like, it was just from a little cut. Was there like a cleaned up

picture of her face?

Yes. Okay. Cool. So you, they were able to see it was just like a little, yeah, it was like a

little nick. That was all it was on her lip. Cool. Where did the cleaned up photo come from?

The cops took pictures and I think she took her own pictures, right? Yeah. I think she took her

own picture like that day or the next day. Like at the hospital or something like that.

Did they remember to make the family relationship?

Yes. Yeah. Okay. There goes that. Um, okay. So then what, what other witnesses did the state put on?

They only put up one other cop, I think. Right? They didn't put the other guy up.

Yeah. It was the cop that talked to our client in the stairwell and allegedly saw the blood.

You know, the prosecutor on direct with him, he runs through like the thing, like, oh, here's

the girl and all, here's all the blood on her face. And, and all, you take him out there and then,

and starts talking. I don't think he really got onto the blood, but he said like, you saw blood

on his hands. And it was like, yeah, yeah, I saw blood on his hands. And then, um, and then,

so I, you know, on cross, I was like, that was the big point for me. It was like, he saw blood on his

hands. It was like, and so I put it, you know, to the part where his hand looks down, uh, or his body

cam looks down at the hand and he points to it. And I was, and I stopped the video and I was like,

you know, the video, the TV is a little further away. And it was like, where is it? And, you know,

on, on direct, he had said, it was literally just on like one part, like just the, like when you open

your hands and like the little webbing in your hand, you know, like between the thumb and, and, uh,

forefinger, he was saying like, that's, that's where it was. And then on cross, I brought, I was like,

can you, he was like, oh, I can't see it from here. And I was like, no, come on down and show us

where it is. Come on down and go up. And he paints like through the whole, like from part of his thumb

up to like into the middle of his finger or something saying like all of that had blood on it.

And I was just looking at it and like, I'm looking at the television and the jurors are looking at the

television and he's looking at the television. And I was like, where? Right there. It's right there.

You can, you can see it. And I was like, okay. Oh, the cognitive dissonance is real with that one.

Latched onto that. And we'll talk about that later, but they, they knew.

The jury said. Oh yeah. Yeah. I love moments like that where you're just like, go look, go look

yourself. And I, you know, I talked to him about, um, the, like, you know, his clothes, my client's

clothes. Um, we went into that, how there's no blood on it. Um, went into the, you know, the fact that

there's no like marks on her, um, on her neck is, you know, that her consistent with choking, um, that

except for the tiny cut, there were no other injuries on her face consistent with somebody

punching you full force twice, you know, from a, you know, upper angle or whatever.

All right. So those were the two witnesses. Yes. Anything else with the officer? I don't want to

move forward too quick. I don't think so. Cool. State's case is done then. Yeah. All right. So,

well, first I guess, do you guys make a motion for acquittal AKA rule 29? Always. Yes. Denied.

Immediately. Next. Defense case. Does client testify? He did. All right. And so client who you guys

didn't think this was going to be a trial. So you have probably not been prepared, been able to prepare

clients direct. And so now you're about to do it live. It wasn't as live as, as all of, you know,

it's not as if we had never had a conversation going over the story. Yeah. Um, talking about what

happened. Um, but it was live in the sense that our formal preparation consisted of, um, that morning

in the jury room waiting, waiting for clothes. And then, uh, in the like attorney client conference

rooms just outside of the court while we were, you know, on break. I think the biggest thing was we

were like, keep it together. Don't yell, you know, keep your answers short kind of like that prep more

and you fucking crushed it. Like, all right. It was great. I was, I was blown away. Not what I was

expecting. Yeah. He did great on direct where, you know, he told the same story that he'd been telling

us the whole time, um, you know, how they weren't together and, you know, she's there with all his

money and trying to steal it all. And then she does eventually steal it all because she gets the cops

involved and then parties all weekend with it. Um, and then, you know, you talked about a job a little

bit, but like, you know, on, on cross, he did really well. Even as the prosecutor was getting into some

bullshit territory, like he started asking him like about where this money came from and why it's all

that cash, like trying to imply that he's like a drug dealer. Did you object to that? I did object to

it, but then the prosecutor, they tried to say it was, I made it an issue by bringing up the money in

the first place, which I thought was strange. Yeah. You opened the 404 B door. Um, and of course the

prosecutor couldn't get into his federal felony conviction because we had already talked about

it, uh, on direct, just straight up asked him like, you have a felony conviction. He's like, yep.

Okay, cool. So you took the sting out of that one. Yeah. Nice. Did you voir dire on that conviction?

No, I don't think we did. No, but I was glad the alternate had a felony conviction.

Yeah. Actually that's, you're right. Cause like, not only like is he understanding obviously, but it

kind of makes the jury a little, did they know he had a felony conviction? Yes. So it kind of makes

them a little more like, it normalizes it to them. Like, okay, we're all like peers. They're hanging

out all day long with us. Right. They're like, this guy isn't scary. That's weird. We should stop

watching the news maybe. What was the conviction? Was that a gun? Yeah, it was like, he had a gun and

body armor. That's not the worst. I don't think that's the worst. Especially with like second

amendment people, you know. So his conviction is nothing related to credibility, nothing related

to fraud, nothing related to theft. Right. It's just admissible because it's a felony. Yeah. Which

blows my mind still. That rule of evidence blows my mind. And a quick aside for our non-lawyer

listeners. What we're talking about here is that when someone's testifying, usually the other side

can't bring up that person's criminal record because it's not relevant. Except they can bring

up felony conviction in the past 10 years. This rule of evidence, 609 in most places, is controversial

because first, most felonies are not related to credibility. What makes something a felony

is a political choice by that state's legislature. And people in highly policed communities are more

likely to be charged with felonies. We know that many are not crimes of dishonesty, but crimes of

poverty. And for that reason, also don't track with credibility. So rule 609, the one that allows

that is controversial. And there's a lot of law review articles pushing back on it. But right

now in most places, that's how that works. And then that answer for the cash was really good

because he's talking about his credit cards will get frozen. And yeah, he talked about his

job and all the things he does. And of course, he's right there in his work uniform. I don't

know. His whole, he did, he just did so good. I was, I was really, really relieved that it

went as well as it did.

All right, cool. So then testimony's over. You guys rest. I'm assuming renew your rule 29. I'm

assuming it's immediately denied. And then we're on to close. So tell us a little bit. Who closed?

Barry did the close.

That's, that's why she would be allowed to not be there for the rest of the day.

This is still on Wednesday, right?

This is all on Wednesday.

Okay. That is mind blowing to me that you guys can do a jury in one day. Like it's absolutely insane.

We chip and chug. Um, okay. So first I guess we got to talk about the state's close.

He said some of the craziest shit I had ever heard about the law.

Not even the fact.

First he's talking about like, I think first he's like minimum, you know, he was minimizing

reasonable doubt, which of course they all do. Right. And that's not special. Um, but

he kept, I, I didn't think that community property was going to be such a huge issue in this case,

because he kept trying to say like, that's her stuff and that's her apartment. And he,

you know, he's talking about that. And then the part that really made me roll my eyes was when he said,

even if it was true, what client testified to, and that it was a struggle and the, her hand popped her,

you know, popped herself in the mouth and caused that cut because knowingly includes like things that

like you should reasonably know would happen that that would still be a guilty verdict.

That, that, that, that acts like that struggle with her hand going back and hitting her face would still

be a guilty. And I wrote, I was just like, what the fuck is going, like, that's the most crazy thing.

There's no way anyone in their right mind thinks that it was just weird.

So that's his closing part one.

Yes.

All right. Defense closing.

So, I mean, you know, I had a closing prepared, right?

But when he said that, I think the first thing I said, like,

when I got up is I just said, what the state just told you was absolutely ridiculous.

Hell yeah. Strong opening, Barry.

If, you know, that if you, if that is knowingly, then that if you ever get in a struggle over

a set of car keys or a phone or anything with anyone and that person falls backwards and hits

their head on a wall or trips and falls or it was like, that is not like, that is not a likely outcome

to any of these kinds of struggles.

Nobody expects that to happen.

This is not knowing this, you know, this is not knowingly, like, it's just absolutely ridiculous

that it's not how this works.

And then I think I tried to go back into the story.

But really, a lot of it was pointing out the inconsistencies in this testimony, you know,

between the officer and the story that he was standing over top of her and punched her.

He's like, this guy, he was a grown man who, you know, blue collar worker, like he works with

his hands, like, and you're going to tell me that the most she gets out of this is a tiny

little, little cut.

Like, and then I know, you know, one point I literally did actually challenge the jurors.

I said, I challenge you to go back and look at that video where the cop told you that there's

blood on this guy's hands and try to find the blood.

Like, it was like, and this is like, and, and then try to find any mark on her neck consistent

with a choke, you know, with her being choked, like, and there should be something because

he allegedly choked her after she was punched and, and had all this blood on her.

And so she's got blood running all down her.

There should be blood.

There should be bloody handprints on her neck.

There aren't, there are no bruises on her face.

There's just nothing.

Oh, in the community property.

Oh yeah.

Um, I did talk about that, about how, you know, everybody knows somebody who is technically

still married to somebody or know somebody who knows somebody they're technically married,

but they live in different houses.

Maybe they're currently going through a divorce.

So they're still technically married, but nobody expects that that other person can come to

your house, go inside and just empty it out and take all your shit to their house because,

oh, you're technically married and it's all community property.

Like, you know, that's just not the world we live in anymore or potentially ever.

But, and I think they definitely understood that.

I don't think they were buying this community property argument that, that the state was

trying to present.

And it doesn't really go to guilt or innocence.

I mean, in the, at the end of the day.

Right.

It's kind of a red herring.

What about the rebuttal?

The one thing he said that I think really hurt him, if anything, was that the last thing

he said in closing was like, who are you going to believe?

Are you going to believe, uh, this girl who was all bloody or a convicted felon?

I was just like, ha, these fuckers have been hanging out with a convicted felon all day.

What have you done?

And so like after the trial, then how does your client feel?

He seemed fine.

Yeah.

He seemed okay.

Like, I think he had kind of, he was, he didn't appear as nervous.

He's just been represented like, you know, by these two awesome attorneys.

He trusts you guys.

You've done everything he put on his notepad for you guys to do.

So he's feeling good.

Yeah.

He's chilling now.

I'm going to be honest.

Like I didn't worry.

I thought those pictures were, were going to fuck us like hard because that it is, that

is a, it is a powerful image.

Like her standing there, like with like tears in her eyes and like blood running, you know,

just running down her face and on her clothes.

And I was like, this is not great.

Oh, you know what I forgot?

What?

Um, after she showed up, sorry.

All the way back in the beginning.

Say whatever.

We can edit.

Yeah.

Remove everything.

Let's hear it.

So like, but after we did jury selection, um, and before we started openings, uh, and she

showed up, my client's sitting there with his girlfriend, the prosecutor sitting across the

hall from him and the, the complainant walks past them, stops, looks at my client dead in

the eye and says, I'm going to fucking bury you.

What?

And the prosecutor heard it?

Right.

I don't know.

He didn't, he didn't say shit.

And I was like, my client came over and told me that.

And he was like, he was like, she just said she's going to fucking bury me.

And I looked over at the prosecutor.

And I was like, dude, are, what are you, are you going to do nothing?

He was just didn't pay any attention at all.

Oh, that is even better feeling when you get the not guilty.

He's burying who now.

But yeah.

So I was pretty nervous.

I was not nearly as confident as, I mean, we became more confident as the jury deliberated.

So did that mean you got a question?

We, well, not a question, not a question, but so one of the things.

During the trial is like the video clip of the officer's body cam, they only played like

maybe a four or five minute portion of it.

It was pretty short, just like the stairwell interaction, but the prosecutor never made

a copy that was just that clipped version.

And so the jury probably, it was pretty fast.

We got a call that the jury wanted to watch the video.

So we had to all go back.

And thankfully my client was just exiting the courthouse.

So I rolled my window down and I was like, Hey, we need to get back in there.

Wait.

We'll be there soon.

They don't get the video in their deliberation room.

So the reason they didn't, and usually they do, but because this wasn't redacted to just

the part that was shown and there were like other statements and things said.

Oh, so you guys had to like referee it.

Okay.

Yeah.

So they brought the jury into the courtroom with us and then the prosecutor to watch the

video, like on the big screen.

Oh, that's so awesome.

And you get to see them like react to it and you get to kind of react a little like, they

were like pointing at it.

They were looking at the hand, they were getting all up in there.

And I was like, this is like the ultimate, like fly on the wall experience that you never

get to have.

You were in there with them reviewing the evidence.

Silence.

You guys are.

Okay.

Yes.

Yeah.

We just sat there, like stood there silently.

They, they did the challenge.

Like they pulled up the video part where, you know, I told him like, look at his hands.

There's no, you're not going to see anything.

Like look at her neck, look at this.

And they, that's all the stuff they pulled up.

They pulled up those exact things and we're just, you know, pointing at each other and looking

like, this is what the hell.

Yeah.

And they would walk up to the TV.

Screen and look and be like, okay, go back like three seconds and play and then pause

here.

Like they were into it.

The video was played for the jury and it was admitted into evidence and accepted as a state's

exhibit.

But they didn't actually get to take it with them to deliberate because it wasn't properly

redacted.

Right.

Yeah.

Yeah.

So it like the portions, the whatever minute portions was admitted, but they never like made

a redacted version of that.

Um, so that's why it didn't go back into, um, remember McKay, they're doing it in a day.

So they don't want to like give a recess for the, right?

They just want to get it done.

I literally can't conceptualize that you wouldn't take a four month recess to redact the video.

All right.

So then you get, it took about another hour then to deliberate and you guys were just

kind of hanging out.

So it was like an hour, like from when they got the case.

So probably like 45 minutes, maybe after they watched the video, I know we knew not to leave

at that point.

And then, so you know that you have a verdict.

How are you feeling?

How's the client feeling?

I mean, I don't know.

You know, I don't know how to feel about that.

Like everyone's like, Oh, when it comes back fast, it's going to be guilty or not guilty.

It's impossible to read the tea leaves.

Yeah.

You got a 50, 50 chance.

I, you know, looking at the jurors like, Oh, are they making eye contact?

Like, I don't think anybody made any eye contact like the whole time.

And so we're just like, all right, let's wait to see what this is.

And we heard the first not guilty on the assault and I was like, fuck yeah.

That's, that's it.

That's it.

That's it.

Yup.

What does your client do?

He hugged Liz.

He did.

He did.

And he was like, thank you for everything.

So we, we built a bond during the day.

Started out rocky, but built a real great bond after.

Yeah.

When they acquitted the assault, was there any fear that they would have somehow not acquitted

the domestic violence?

Yes.

Yes.

That is something that we have seen.

Yeah.

It ain't over till it's over.

Yeah.

Yeah.

So you hear the first not guilty and you're like, all right, but.

Yeah.

Right.

And then we, yeah.

And then we got the second one and yeah.

Whoa.

Okay.

And so after you have the verdict, do you talk to the judge at all about what he thought

about it?

Um, I don't think we did.

Not really.

I think he just said, he just said good job.

Yeah.

That's pretty much it.

Cool.

Well said judge.

It was a good job.

Yeah.

It was a great job.

In fact, it was a not guilty.

Hell yeah.

So I guess we've come to the portion of our program here where we ask the ultimate question.

The ultimate question.

Why did you become a public defender?

Barry, I guess we'll start with you because we heard from Liz last time.

We'll get to you, Liz.

I think we all have pretty much the same reason.

Uh, one, don't want to bill hours.

I don't want to think of my life in six minute increments.

Um, and along with that.

It goes that I don't want to have to limit my defense of a client to how much money they

can put up or how much money they have put up.

So it means I can put as much effort as needs to be put into a case without worrying about

the bottom line, um, or that I'm affecting other, you know, other things.

Um, and then two, I wanted to do something to help people and that's why I ended up gravitating

towards criminal defense and especially indigent defense.

I feel like this is a more concrete way to do, to affect people in a positive way and defend

the people that need it the most.

Right.

Yeah.

More direct for sure.

And Barry, you wrote a really awesome quote.

Yes.

Cynthia Rose, Barry.

The quote is we as criminal defense lawyers are forced to deal with some of the lowest

people on earth.

People who have no sense of right and wrong people who will lie in court to get what they

want.

People who do not care who gets hurt in the process.

It is our job.

Our sworn duty as criminal defense lawyers to protect our clients from those people.

That's right.

Cool.

Elizabeth.

Yes.

Why do you, any additional thoughts on why you became a public defender?

I mean, I think, well, one, I shared that in the previous episode and I think Barry summed

it up really well.

Um, you know, I think just being able to represent our clients to the best of our ability and,

you know, giving someone the representation that they deserve, um, which, you know, I think

that's so important for anyone, um, you know.

Who is being charged criminally, um, with an offense, whether or not they did it, it doesn't

fucking matter.

They deserve the best representation possible.

Um, well, thank you guys.

Thank you so much for telling us the story of you're not guilty.

It was like you said, Barry, it was a rollercoaster of emotions.

Thank you so much for giving us your time and keep fighting the good fight.

Yeah.

Keep fighting.

Hey Angie.

So we're doing a new thing called question of the week.

Here's how it works.

We'll tell you the question of the week and then you go to our Instagram at another not

guilty and you give us your answers to the question via our DMS or the link tree in our

bio.

And we'll read your answers on the next episode.

So our first ever question of the week is what is the wildest thing a juror has ever said

to you?

So go submit your answers and our DMS on Instagram at another not guilty.

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

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

remix.

And guess what?

We'll be back in two weeks with another not guilty straight from the trenches.

We'll be back in two weeks with another not guilty straight from the trenches.