My So-Called Expert – When One Week Brings Two Not Guiltys

All right, my A&G-ers. Happy Monday. Getting this episode out a little bit later than I'd hope. Sorry, my daughter had a birthday party and broke out in a rash from either a bath bomb or the new princess bedsheets. Perhaps there's some bad parenting going on over here at the A&G household this weekend. I don't know. With that said, this week's episode is stellar. Love the public defender guest. He's an old, grizzled veteran of the trade who came to share a tale of two not guilties he achieved for the same client in one week. Pretty amazing.

I hope you enjoyed the episode. Also, I want to take a moment and give a shout out to Rachel Keist, Martin Small, and Jack, just Jack, for joining the A&G Patreon program. Their contributions help with keeping the lights on over here. It really does, guys. Thanks. Also, if you'd like to be a guest on the show, it's really easy. All you have to do is visit the website at anothernotguiltypod.com and click on the Patreon link. No, wait. Anothernotguiltypod.com and click on the submission form.

Click on the Patreon link if you want to do the Patreon thing. Okay. That's it for now. Thanks. And without further ado, here's this week's episode of Another Not Guilty.

And I said, okay, what kind of, you know, what's your educational background? And she says that she has an associate's in forensic science. And I said, hey, wait a minute. Doesn't Swingfast say that you're supposed to have a bachelor's in applied science and not just some associate's in something else? And she said, yes.

And I said, so if you were to come out and try and apply for your job today, you wouldn't be qualified for it.

And she said, she said she would have been grandfathered in.

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.

Rejection. 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.

Welcome back, everybody, to Another Not Guilty.

It's your favorite host of any podcast out there.

Your favorite host.

Yeah, not just Another Not Guilty.

It's your boy, Davey D. here.

Here bringing you the freshest not-guilties across these United States of America.

I want to sound like Barack Obama.

Remember when Barack Obama used to say these United.

That's what I want to say.

The freshest not-guilties of these United States of America.

That we got to bring stories of defense attorneys, public defenders, fighting the man, holding off the man, fighting off the system of oppression,

proving to the people of this great country that the government is full of shit, one not guilty at a time.

But before we get to our guests, our amazing defense attorneys, our amazing public defender guest of the day,

I want to introduce our co-host, guys.

He's a rising star in the A&G universe.

We got George with us today.

George, good to see you, buddy.

How are you doing?

It is Friday.

It is Friday.

No bow tie, though.

No bow tie on Friday?

Listen, I have a whole story about bow ties.

I remember back 10 years ago, I was wearing bow ties every day at work, and it became a whole thing.

People were like, you can't wear that.

I was wearing bow ties and sweater vests as a new public defender.

And it was because I was making no money at all, and I had to buy all my clothes from Ross.

So, you know, the one thing I could spurge on was bow ties.

I would get my bow ties from Nordstrom's rack.

And, no, no, no.

It was like, you can't wear that.

You can't wear that.

And so then I started wearing, you know, regular black suit, long tie situation.

And everyone was like, you look great.

Then I get transferred, and I look back, and everyone's wearing bow ties on Friday.

I was like, wait a minute.

This was a controversy when I did it.

Right, right.

And other people were acting like they started bow tie Friday.

It's true.

You know?

Foolishness.

Like LeBron James acts like he started Taco Tuesday.

Nah, Taco Tuesday was around a lot longer before that, okay?

Correct.

Correct.

Yeah.

Well, sitting here with George and I, he's also kind of laughing and smiling.

He probably wants to chime in a little bit, but I haven't introduced him yet, so I'll introduce with him now.

We got Mark Gilman all the way from Sarasota, Florida, Public Defender.

Mark, introduce yourself to the A&G universe.

I am Mark Gilman.

I am a homicide and sex crimes attorney in Sarasota, Florida, Public Defender's office.

Wow.

Okay.

So those are the, specifically, those are the two types of cases you get.

My job currently is homicides and any kind of sex crime involving minors.

Okay.

So just the easy cases.

Just the easy cases.

Yeah.

It's pretty easy, not complicated, no pressure at all, like walk in the park.

How many, so then how many cases or new cases do you get a week or month?

You know, those are all, I got like 30 pending right now.

Okay.

Wait, wait, wait, wait, wait.

You have 30 murders and sex crimes pending?

No, no, no.

Combination.

15 each though?

15 homicides?

No, no, no, no.

There's more sex crimes than homicides, strangely enough.

So you hear about homicides rates going up.

That's not the rate that's going up.

I just feel like however you divvy that up, it's not good.

Jesus.

Not, not good.

Whoever it is.

Tell me you have a team because it can't just be you with 30 sex crimes and murders.

What do you mean by team?

It's like, we're a small company, bro.

Define team.

I do have someone who makes copies for me sometimes.

There's a guy in the office next to me that has like 20 of them.

What?

Jesus.

So that's, that's, that's my team.

The two of us just rocking it out.

One, not guilty at a time.

Right.

Right.

Yeah.

I wish.

Siri is not a sex crime or a homicide.

So if you're interested in that, then I would suggest listening to another one.

Well, guys, we're glad to have Mark on the show today.

He reached out to another not guilty.

He said he had a dope, not guilty to share with us.

So we said, yes, let's do it.

This is our second attempt at recording though.

There was a little hiccup in the first time around.

There's some scheduling issues, but then Mark reached out like last week or two weeks ago.

He's like, guys, we have to record this.

The universe is telling me that we have to do it.

I said, okay, let's just do it.

Even though it's Friday, even though it's bow tie Friday, even though it just happened,

July 4th just happened.

And we're all kind of like in vacation mode.

I was like, nope, fuck it.

We got to hear Mark's story.

So Mark, what was the universe telling you?

This is a story from when I used to work in the public defender's office up in Tampa.

And there, you know, I hadn't seen some of those attorneys involved in the case tangentially

for a couple of years.

And all of a sudden within the past month, I run into one at a conference that was,

and then I run into somebody else in the lobby of my office that I hadn't seen in forever

and didn't even live in the state anymore, to my knowledge.

And moved back to, just moved back to Florida, shows up in my lobby.

And as soon as that happened, I said, this is it.

Like, we have to get this done because otherwise people are just going to start showing up

at my office and it's really going to annoy the crap out of me.

All right.

Well, thank God it wasn't like the client came back into your caseload again, right?

No, no, no, no, no, no, no.

All right, Mark.

So then share this not guilty with the A&G universe.

Tell us, what was your client charged with?

My client was arrested after he had taken some property to a pawn shop, going to sell it,

get some money for it.

He was short on cash or whatever.

Takes it into the pawn shop and it comes up as stolen from a burglary probably about a

week beforehand.

So they take him into custody, they get a search warrant, they go search his residence and they

locate the proceeds of six other burglaries from around the area, as well as a firearm.

And my client was a convicted felon.

So you're not supposed to have firearms if you are a convicted felon anywhere.

So they charged him with seven separate burglary of a dwelling charges.

So breaking into the residence with the intent to steal something from there and being a felon

in possession of a firearm for everything that they found when they execute the search warrant.

So your client sells some stuff at a pawn shop.

Right.

And the stuff comes up.

What is he selling?

What is it?

What's the stuff here?

Econics.

I think it was a laptop.

Okay.

And then throughout when they served the search warrant, there's some jewelry from another

residence.

There's a boom box.

There's, you know, this is, I can't believe they still had a boom box, but there was still

like a portable CD player boom box thing, a TV and mostly some other jewelry from various

different locations.

So did he live alone?

No, no.

He is married, lives with his wife.

This is in the closet that is in his bedroom with his wife.

Oh, okay.

Yeah.

Not, not great location to have stolen property.

How old are the items?

Some of them are very recent.

Some of them are from a few months prior.

So they serve a search warrant.

They find a bunch of other stuff that was stolen and they charge him with burglaries.

They charge him with dealing in stolen property and a burglary for the initial, you know, he's

selling at the pawn shop.

And then some other burglary and grand thefts and the firearm charge as well.

And are they all, is this all under one complaint, you know?

No, that's what, that's what makes it interesting.

They, they filed them under eight different informations, which is what we have in Florida.

So rather than doing them all in the same.

Right.

Because they're from different time periods, they file them in eight separate information.

I feel like that's a filing mistake.

Yeah.

I mean, just, I think like it's way more prejudicial to the defendant to have eight separate charges,

you know, than just do one case at a time.

I mean, you can't, cause you can't bring in, or maybe you could bring in evidence of the uncharged

acts.

I don't know.

Anyways, but it just seems, uh, I don't know.

We can talk about that later though.

That seems like a mistake.

So what are you thinking when you see these police, so what are you thinking when you see this

police report and these charges?

Um, that there's a lot going on here.

Um, and by the time I had come into contact with the client, he had already been convicted

of the dealing and stolen property charge at a trial.

So because they filed it under separate informations, they had separate jury trials for each individual

burglary and act.

Um, he had hired another attorney, um, private counsel to, to handle all of those that went to

trial, lost, hooked up for 25 years.

Wow.

He hired a private defense attorney to do all seven or eight separate cases and started going

to trial on them and just started losing.

Lost the first one.

And then private counsel had her own issues and withdrew from the case.

And here, public defender, here's a guy with a 25 year hit already pending.

Here's seven more cases for you.

Have a nice day.

Now I have questions.

Okay.

The first thing is, okay.

So you got seven cases, guys already gotten 20, getting 25 years.

Right.

Why are they continuing?

Okay.

So the state attorney's offer, I believe was in the neighborhood of 35 to 40 years to wrap

everything up.

So they were still asking for an additional 15 years consecutive to the 25 he had gotten

at a trial when we first got the case.

He was also very upset.

He was very convinced that he received ineffective assistance of counsel that he paid for.

So he was not going to take a plea to concurrent time, regardless of what these people were looking

to give him because he was pretty convinced that he was going to win and come back on his ineffective

assistance claim.

Oh.

So essentially, they didn't give us any reason not to just line him up and try him one by one.

Why is he facing so much time?

25 years on a burglary?

He was what they call a habitual felony offender.

So what that means in the state of Florida is if you have a certain number of prior convictions,

then they can enhance your, your sentence to a certain amount on any kind of like burglary

charges and things along those lines.

Plus, you know, we all know that there is a trial tax, even though you don't talk about

trial tax, but there's a trial tax.

So he got, he got trial tax, not, not as bad as he could have, but he got hit with, you

know, he went to trial and was convicted of, you know, putting his thumbprint down for

with stolen property.

So, you know, that really wasn't the smartest of all moves to do.

So here's my question.

Like, it seems like this is very petty.

The guy's already getting 25 years.

They already, they have their, you know, it's into flesh.

Why would they spend more money?

Did they believe that private counsel was ineffective?

They never do.

So, so I just, I'm baffled why they would spend.

I'm going to make it even more petty for you then.

Okay.

Because it gets a little bit worse before it gets better.

We actually tried the first one of these cases.

It was a bad set of facts.

And it kind of leads into the way we approached the two that we were successful on.

They were fingerprint cases.

Right.

So there was a, my client's fingerprint was in a place that it wasn't supposed to be in

the residence.

And he's in possession of this property with no real explanation.

The first time I go see him, he's dead set on having a trial.

I actually sat second chair on the first trial, just riled shotgun, let another one of the

attorneys handle the first trial we did and guilty as charged 30 years concurrent.

So now he's doing, instead of doing 25, he's doing 30.

Still not enough for these guys.

They say, you know what?

We're going forward.

Let's tee him up.

How old is he?

He was in his late twenties.

So he'd be fit in his fifties when he gets out.

Yeah.

Yeah.

Are these new prosecutors who need the experience?

I mean, they were lying prosecutors.

They were following what they were supposed to be doing.

And they, to their credit, they, they continually, once he got the 30, they said it will give

him 30 concurrent.

You know, we're not asking for any more.

And my client said, nope, not doing anything concurrent.

I'm going to win the first one on an effective assistance.

And I'm going to come back on appeal on the second one.

So I'm not taking anything concurrent.

But the third one, he got 30 anyway.

So even if all that stuff.

The second one, he got, he got 30.

Yours was, that was the second.

Yours was the second.

Third one.

Right?

I was second chair on the second one.

My case that we're talking about now, our number is three and four.

So, all right.

So let's talk about this.

So you, you get the case, you see the charges, you read the police report and you go meet

the client, right?

Let's talk.

Tell us about that.

So, yeah, he's again, upset that, you know, he was convicted.

He was really convinced that he was going to come back.

He says that he lives in an area with a, but he calls them basers, right?

So crack heads, whatever you want to call them.

He lives in an area with a lot of basers.

He's got a job.

He's got a good job.

When he, you know, comes, comes into contact with these people, sometimes they will have

things on them and they will offer them to him for a reasonable price.

And then he will keep them and either give them as gifts, or if he's strapped for cash,

he will take them to the pawn store.

He doesn't necessarily know these things are stolen.

They could be the baser's own personal property when they're just trying to get some money for

drugs, but that's, he maintains that the entire time.

Yeah.

That sounds realistic to me, frankly.

I mean, you know.

Yeah, I, I, I bought it.

What's the time period between him having the possession of it and then the burglaries?

Like we're talking about a week.

This is, we already said two weeks.

The ones that he was convicted of, it was a short period of time.

It was like within a month.

The first one that I went to trial on the, the period of time was six months.

And I mean, can we talk about the types of evidence that's like in the, in the police

report, I think you mentioned there was fingerprint evidence.

Yeah.

So they, I mean, obviously when these burglaries happen, they, they show up, they dust around

for fingerprints.

They take some, if they can use them.

Great.

If not, you know, who knows they check around, you know, something looks like it was pried

open.

They'll take, so there was a window pried open in this burglary.

So they took some prints from around the window area and they had the property that was recovered.

Witness comes in, you know, says, yeah, that's my, that's my jewelry that was taken from

me on this date.

And it was, I didn't, I don't know that dude.

I don't, never seen him before.

I ain't given permission to be anywhere near my house.

No, he can't have my property.

So it's a, it's a pretty straightforward case.

The, the hangup for the entire thing on the burglary charge that we tried was the fingerprint.

Did he go in?

Yeah.

That, well, it, it, just the fact that he was there and saying that he had no idea about

this burglary to law enforcement.

And yet there's a fingerprint identified to him at the scene.

That was a problem.

So they have his fingerprint, at least a lot of the police claim that they have his fingerprint

and the properties in his house found in his, his bedroom.

Is that what you said?

His bedroom?

Yeah.

And then you, so you meet the client and he says, look, I just get, I get this stuff from

a bunch of basers.

Yeah.

Did you, did you bring up the fingerprint?

Did he have a explanation for that?

It wasn't his print.

He was never there.

No idea what we're talking about.

Okay.

So then what do you do as a defense attorney from there?

How, like, uh, what's, what's your next move there?

Are you trying to get him to settle?

Or do you try to, are you building defense all of the above?

What are you trying to do?

This guy is not, he's giving me every indication that he's not pleading to anything.

So I have to look at this case strategically.

And I decided we're, if we're trying this case, then I am going to hoist the fingerprint

examiner on their own petard.

And just, that's my defense.

They, they're going to introduce his statement where he tells police, I just bought these things

from, you know, these random basers because state attorney think is,

it admits to him having the property.

So that that's a, that's inculpatory.

And I will, you know, play that statement for the jury.

I didn't say anything about that because it's not an inculpatory statement at all.

So that was the, where I started focusing was, all right, I, I have to do everything that

I can to get this fingerprint examiner.

Great.

And the, the fingerprint examiners around Tampa, there was one of them who legit used to wear

like a lab coat to come testify.

Like, and this dude, I mean, the dude had an associate's degree in education or something

like that.

And he showed up to testify in his lab coat.

And so the, the fingerprint examiner in this case is actually the supervisor of, of this

band of misfits.

And so I decided at that point, like I was going to, it was going to be a high profile

lynching of that person.

Like I was going to go for her and everything she stood for.

So, so I got, I got two questions, two questions.

First question is, so your guy has, you said he's a, he was a habitual, uh, felon.

Yeah.

Are any of his prior felonies associated with burglaries?

Thefts.

Thefts.

Okay.

But yeah, is it a similar emo, uh, modus operandi?

Not, no, they did not do that.

We call that Williams rule in Florida, similar fact, evidence, things like that.

Even though they had all of these cases, they didn't try and bring in any other facts from

any other case.

We even had to massage the language about whether they were serving a search warrant because

they, I, I was able to say like, it was a court authorized search, not a search warrant.

Right.

Because the general public doesn't know search warrants, you know, court authorized search

is different.

Yeah.

Um, so yeah, they, they probably could have at least tried to do that and they just didn't.

That's just not how it went.

That's great language.

Court authorized search.

I'm writing that.

Yeah.

I remember that.

That's going in the quiver.

And then the second question I had was, you said the lady walks around in a, or the person,

the expert walks around in a lab coat.

Well, one of them does.

Yes.

I would love to cross-examine the person in the lab coat.

I mean, that sounds awesome.

Sure.

So, and, and that, and that's the thing I had just gone to, like, I had gone to a seminar

and they were talking about SWIGFAST.

Are you familiar with SWIGFAST?

I hope everybody is familiar with SWIGFAST.

No.

No.

Okay.

So SWIGFAST is, is the scientific working group for forensic scientific technology or something

along those lines.

Obama's department of justice did a, an examination of fingerprint examination, all the forensic

nonsense that they hear, you know, because we all know that putting the word forensic

in front of something just means I'm about to tell you some bullshit.

Yeah.

Um, so they, they, so my training and experience, right?

So I had gone to the seminar and I started doing a deep dive into, you know, the findings

from SWIGFAST and just laid in wait until this testimony happened.

What's like one of the big things you took away from that seminar you went to that's like

that you like, Oh, that's bullshit.

Wow.

For fingerprint examination, they don't do any kind of like actual measuring of anything.

Right.

So they, they just, they say it's a five time magnifying glass is what they use.

That's the same thing that you could go buy at a store to play Sherlock Holmes.

You know, it's, it's not like any scientific technology.

They don't measure anything.

They don't count the number of points of comparison to say I found 12 or 13 or 15.

It's just general feel it's vibes.

Like their entire testimony is vibes.

SWIGFAST basically, you know, said, look, if you're going to do these things, you should

maybe have a degree in hard science, like biology, chemistry, you know, unapplied science.

So you can learn the scientific method other than like, I have the vibes that these look

the same and so we're going to call them the same.

And that was one of the lines of questioning that I actually got to use.

So you're like, you, you believe that this is a fingerprint just based on what you see,

just your eye, you just eyeballing it, huh?

That's essentially what they were doing.

That's what they all do.

That's crazy.

Like no, no computer at all.

Oh, I look at a picture and then look at another picture.

That, that is, that was the testimony that was going to come out about the fingerprints.

Almost exactly.

Isn't there, isn't there like a database or something though?

They at least have.

Sure.

It's called APHIS.

So there is an APHIS database, but that is hearsay if you think about it.

Right.

So you're not going to, you very rarely get people testifying that there was an APHIS

hit, but there was an APHIS hit in this case.

They just couldn't testify.

Oh, okay.

Okay.

So this is kind of cool.

Like you're definitely going to trial.

Yep.

It's a freebie essentially.

He's already, he's already facing 30 years.

You just went to this seminar on how to cross-examine or, you know, the, that the forensic fingerprint

person's bullshit.

And now you're presented with a fingerprint expert.

So, you know, so, so-called expert who walks around on a lab coat that just has a degree

in education.

That was one of the people that worked.

The one that was on this case was his supervisor and, and author patently authorized that guy

to do whatever it is.

She had a degree in, I want to say like forensic science or something like, again, just a made

up, like, I want to be a cop degree is what she got.

Criminal justice.

Right.

You mean criminal justice degree, forensic science, something along those lines.

Cool.

All right.

So then are you just, is there anything, anything else you're doing to get ready for trial?

At that point there was the, again, these are, these are pretty straightforward cases.

So we, we did a motion to suppress the search warrant failed miserably because, and I should

have, because there was nothing wrong with it, nothing wrong with the search warrant.

Well, it's fine.

Cause it's in a search warrant.

If you think about the declaration or an affidavit, it's like, well, he, we found that

he had, he was in possession of these stolen items and he probably has more stolen items

at his house.

So, and then they go to the house and they find more stolen items.

It's kind of like.

Miraculously.

There was more stolen items.

Probable cause is all we need.

So.

Yeah.

It didn't help that he said, yeah, I buy stuff from basers all the time.

So they, that, that went into the affidavit as well.

But this seems like this is going to be one of those cases where you're just like, because

it's a home run and because I have years of experience, I'm really going to just have a lot

of fun with this cross-examination.

Yeah.

And then it gets, well, and that, the other thing is that we got transferred to a trial

division judge.

So in Tampa, they have judges who only do trials.

That's it.

See that they don't have a docket.

They don't have anything else to do.

You have a week long homicide trial.

You get shipped to a trial division so that the judge can handle whatever's left on the

docket.

So we got shipped to a trial division and, and this judge, it changed the,

changed the calculus a little bit, but not much.

He was just going to run through them.

Like we're lining this up.

These are one day trials.

We are picking two juries on Monday.

We'll try one Tuesday, one Wednesday and go from there.

That's how we're going to do this until somebody breaks essentially.

Yes.

This is all awesome.

This is great.

Like I get to do, I get to just cross-examine the shit out of everyone.

And, uh, the judge wants to move quickly.

Me too.

Yeah.

Let's go.

Like line them up.

You know, sometimes those types of judges are, are kind of good for the defense, you know,

and they're really, they can be, they can be tough on prosecutors, you know, cause prosecutors

are like the least prepared always.

So, and they want to do it quick.

And we were going to get through those cases until we finished them all.

Or my client pled to whatever was left.

Yeah.

That was what was going to happen in front of that judge.

And have you, have you been in front of this judge before?

Yeah.

Yeah.

For years.

He was a former JAG officer, right?

He's retired now.

Um, so he was a, he was a JAG judge.

So he was a very serious man and he would bring you, you know, the, if you had a trial on

Monday, he would bring you, you know, send you notice that you had to be in his chambers

on Friday before.

And then he would talk to you.

Okay.

Here's what's going to tell me about this case.

What's the charges?

What offers have been made?

Because he doesn't want any surprises when you show up Monday morning, he wants the jury to

file in and you're going to pick, let's go.

Like, there's no nonsense about it.

Like he gets all the nonsense out of the way beforehand.

That's cool with me.

Yeah.

And then the prosecutor in this case, is this like the, this is when you get sent out to

this judge and you're going to do two, two of the charges had, you had already second

chaired that one case where he got 30 years, right?

Yeah.

So, and then you're, do you have co-counsel in this case?

I had different co-counsel.

The first co-counsel got transferred to a different division.

So again, these are kind of freebie trials.

I was a division chief at the time.

So I grabbed a lesser experienced attorney and basically says, hold my beer.

What about the prosecutors?

Is this the same prosecutor as the?

Same prosecutors throughout.

Okay.

Yeah.

And they, again, were, they were following what they were, you know, and they had, or they

had offered, they had to get, and, and they were not going to bend at all.

And yeah.

So they were just a freebie.

They, yeah, they were going forward.

They're, they were just going to keep convicting him until he stopped.

How many prosecutors?

There's one, two, two.

Yeah.

It's all, and they, they all have trial partners.

And, and when you say that this judge was just going to run through the defendant or your

client, is that like in a negative, like, like run through, is he trying to get your client

convicted or like.

No.

What I mean is he's, we're going to, he looked at the state attorney and said, pick the two

cases that we are trying this week.

We will pick two juries on Monday.

We will do the first one Tuesday.

I think it was Tuesday into Wednesday.

The second one, Thursday into Friday.

Next week, you will come back.

You will select the next two cases that you would like to try.

And we will pick two juries on those on Monday.

And the same will continue until we finish all of these cases.

Wow.

Okay.

Okay.

Or your client, please.

One of the two.

Okay.

Okay.

I think they called that in, I think they called that in law school, a racehorse.

Yeah.

Let's go.

All right.

And how's your, how's your client?

What's he, what's he like in this moment?

No, he's still, he's fired up.

He's happy now that the judge is going to get through all these things.

He's convinced that he is going to walk away from all of all eight of these charges, completely

unscathed, including getting back all the time on appeal from the first two.

Two convictions.

So he's ready to go.

Man.

I like, I like these Florida clients, man.

We just had Patrick, Patrick Wilson on recently.

His client was fired up to go to trial.

You know, he's a guy.

Always.

Always.

So before we get the jury selection, let me ask you this, any motions in limine that

you did?

Just the one to, that we're not calling it a search.

They didn't serve a search warrant.

They executed a court authorized search.

Okay.

And what, why did, what's, why does that make a difference to you?

If it's search warrant or court authorized search?

I have always told people for years and years that words matter.

So for me, it sounds less ominous that my client is not involved in some shady nonsense,

because again, we're not mentioning that he was dealing in stolen property or that he's

been convicted already.

You can't mention any of that stuff.

So it looks bad if they're serving a search warrant on him.

It does not look as bad if it's a court authorized search, because the, the word to the general

public, the wording just sounds different.

At least that's the way I looked at it.

And, and do the, does the prosecution at this point know what your defense is?

No, no, they did not.

So this is perfect because it also kind of tips the prosecution to look at something that

they probably don't, isn't even really relevant.

Yeah.

Like I'm not even, I'm not even concerned about.

So then are you saying that like, if a, if a, if a juror hears the word search warrant,

like, Oh, search warrant, he had something, he did something, blah, blah, blah.

But if a juror heard, here's court authorized search, they're kind of like, Oh, it was just

a court authorized search.

That's what I was hoping for.

And that's why I didn't, I may be wrong on that.

It was just something to do.

I'm trying to, you know, I was already doing 30 years.

Like I'm thinking of every nonsense, petty thing that I can think of to throw at these

people because I want them to stop.

Like what they're doing is silly.

So I want them to stop.

Did the prosecutor even push back on that?

They're like, fine.

Sure.

No.

Authorized search, whatever, dude.

Okay.

We'll call it a mushroom cap.

I don't care.

The motherfucking property was found in this house.

That doesn't matter.

We walked in and found shit.

You want to call it that?

All right.

So let's talk about jury selection then.

Who did the voir dire?

So I did the voir dire on, on both cases.

That was a long day.

Cause we picked both two juries back to back on that Monday.

So morning panel, and then an afternoon panel.

And in both of them, I was looking for, I need smart jurors.

Right.

So I remember in the first panel we had, Tampa has Raytheon, which is a defense contractor.

Yes.

They hire engineers.

So we had an engineer from Raytheon and a couple other, you know, college educated people.

And then on the second jury, cause the second case they wanted to go on.

So the first one was a burglary of a dwelling where he's got the property and his fingerprint

is at the scene.

The second one is the felon in possession.

Cause there's a firearm in his closet and he's a convicted felon.

And oh, by the way, his fingerprint is also on the firearm.

So let's have the same fingerprint examiner testify about the firearm in the second trial.

Okay.

So the first trial is the burglary with the fingerprint on, in the, at the house and then

the, the property at your client's house.

Right.

The fingerprint at the house that was burglarized.

And then, and then the second case is going to be a felon in possession of a firearm because

they found a firearm when they did the court authorized search.

Okay.

With their client's fingerprint.

And they, and then the only people that live in the house is your wife, is your client's

wife and your client.

Right.

So tell us about, uh, Wadir then.

How'd you handle it in these, these two cases?

Um, I, I'm just looking for smart people and we have this, you know, I heard, I was listening

actually to, to one of the previous podcasts that you guys did on the way in, the guy was

talking about his, how he's, he's dating Haley, Holly Berry.

I think that was the other guy from Florida down in Miami.

Patrick Wilson.

So we have this thing in Tampa called Gasparilla festival, right?

I don't know if you were familiar with it.

It's a celebration of a pirate named Jose Gaspar.

And this, the festival is where they come through Tampa Bay in pirate ships, cannons blaring.

They have some that go on the streets and there's cannons fire.

And then they have big, huge parade where they throw out beads.

And it's a huge celebration and it goes on over like three weekends in January.

So what I like to do is, is the state attorney gets up, gives the standard, you know, it's

reasonable doubt, not mere possible doubt.

And so what I like to do is find somebody who hasn't lived in Tampa that long.

And I stole this from another attorney and then just describe Gasparilla to them.

You know, you say, look, what if I were to tell you that a pirate ship was going to invade

Tampa Bay, that they would then get off the pirate ship and go through downtown with cannons

and guns blazing, that they would arrive at the city hall and the mayor, instead of putting

up resistance, would just turn the city over to them for a period of like two or three weeks.

Do you think that I would be telling you something that is reasonable?

And you get somebody that's brand new will say like, what are you talking about?

Pirates invading a city?

There's no way in hell that happens.

And then you ask somebody who's lived there five, six years, be like, does it happen?

They're like, yeah, it happens every damn year.

I work downtown, those cannons are loud and it's annoying and it's, it's, I said, all right.

So can we all just agree that like what's reasonable depends on what we're dealing, what the facts

and circumstances that you're presented with rather than, you know, wild stories about pirates?

And we were able to get some, some fairly decent people doing that.

That's great.

That's great.

It's also kind of fun.

That's fun too.

And then when you're picking these jurors, then are you just, you're just going off their

sort of like their, uh, their stats.

You're just judging a book by, by the cover.

You don't care about what you talk about or what their answers are.

You're already like, I'm going with the engineers.

I'm going with the smart people.

I don't care.

I don't even need to talk to them.

I'm just up here telling the story to, for them to start liking me a little bit.

Really?

I feel like that was, that was it.

Like I had an idea about who I wanted to pick before anybody asked the first question, just

based on what they did for a living and what type of education they said, because that's

all I was looking for.

I just needed.

How much, how much time did the, did the, did the judge give you?

Like an hour.

Did you use it all?

Did you just do a little, little, little presumption of innocence, a little brute, your

unreasonable doubt, that type of stuff.

Right not to testify.

I think I use a full hour and, and we're, I mean, we're only talking about 30 some people.

Yeah.

So it's, you know, it's not an unwieldy number of people.

It's, it's a reasonable, you can get through it in an hour.

You know, by the way, what's your, what's your client looking at?

Is he looking at life or just, are these all just three year crimes or whatever, or.

He's a, well, they can stack them.

So, and, and the maximum penalty got jacked up a little bit.

So he's looking at like 60 total.

All right.

Now, what about the prosecutor?

What was their, what you're like, anything memorable?

No.

Vanilla.

Like we can believe experts.

We, people who are trained, you know, law enforcement's not all bad.

You don't have any bad experience with law enforcement.

They used to talk about, you know, if you, if you can crawl through the ceiling to arrive

in the courtroom or some, you know, is that reasonable instead of just walking through

the front door?

You know, no nonsense like that.

Just nonsense.

Because again, they're feeling good.

What's funny is that you had to repeat this same voir dire, like two, like in the morning

and then the afternoon.

So the same gimmick, everybody had to hear each other's gimmicks.

Yeah.

I think they might've switched, but I didn't.

Yeah.

So I don't remember if they did like separate, you know, one of the state attorneys did the

first one and the other one did the second one.

Like, I don't remember, but I know I, I'm pretty sure I did both of them just because it

was like, whatever.

I don't, it's not going to be heavy lifting.

You know, I already have an idea about what I'm looking for.

All right.

So then we got our jurors.

Are you, you feel good about your jury?

I was happy.

Yeah.

We got some smart, we had some, we had at least three or four college degrees out of the six.

So I was feeling pretty good.

Wait a minute.

Six.

Wait a minute.

Six.

There's only six jurors?

Yeah.

Yeah.

Oh, wow.

So in Florida, you only get six, not 12.

Yeah.

The only time you get 12 in Florida is if it's the Capitol by indictment.

So if, if they are seeking death, obviously you get 12.

If they indict you on a first degree capital homicide, um, you get 12 jurors.

Everybody else, every time else you get six.

Good catch there, George.

I didn't catch that.

So what, yeah.

What, how do you, how do you feel about six jurors?

Is that good?

Is that not bad?

George, how do we feel about six jurors?

I think it's, we want 12 because we got a better chance of hanging them, right?

Correct.

Well, you also have to remember that this is Florida where we're starting to change the rules

for the death penalty.

We're imposing the death penalty on more people.

Um, you know, they're adding categories for which you qualify for the death penalty.

So if you're looking for, for forward thinking juries, it's going to be difficult to find.

Oh my gosh, dude.

Florida is so scary.

Like, you can put someone in jail for 80 years with six people.

Yep.

That, that's scary.

Yep.

Yep.

Yep.

Like, that's not, that's, that's barely enough for a three on three.

Well, I mean, if you're going to be putting away people for 60 years, for 30 years, you

better be doing it with the most credible, solid evidence.

Right.

All right.

So let's talk about jury trial.

Number one, let's talk about Tuesday.

This, this would, this would be the burglary charge.

Burglary charge.

Okay.

Okay.

So how was the opening statements for that one?

So I, again, I'm soft selling it.

Like I, my, and I can look back when I say, I feel good about, you know, the jury, like

I didn't really feel good about it.

I was, I was fully expecting that I was going to get, you know, a 30 minute guilty verdict

because it had happened to this dude twice.

So, okay.

Like I, I got the jury that I wanted given what I was looking for, but I'm still going

soft and opening.

I'm not really promising a whole lot.

I'm just basically, you know, Hey, pay attention to what the fingerprint examiner says and make

sure that you can use your common sense to determine if they're telling you something

that's accurate or if they're, you know, you can believe what they say, those types of

things.

Do your promise to listen.

That's all.

Can you listen?

Yeah.

Just listen.

And then you said all that and still asked them to return a verdict of not guilty.

I did.

Kind of wishy-washy, but anyways, with all that said, not guilty.

Okay.

So that was opening statements.

Great.

The prosecutor, I, we can all kind of imagine what their opening statement was.

Fingerprints.

And that guy broke into a house and stole some stuff.

Find him guilty.

Like it was, you know, same generic.

That guy did.

Did they put, did they put a picture of the fingerprint on the overhead of the sample?

No, no.

And that actually comes into play here in a little bit.

Okay.

All right.

They're, they're bad.

They're just, well, they're just, they're very loose.

They're letting it go.

So, um, yeah.

Okay.

So let's talk about the rollout of the evidence for the prosecution.

Tell us about their case in chief.

Obviously they start with, you know, the homeowner.

I didn't give anybody permission.

Yes, that is my stuff.

What was this?

What was the stuff?

It was a, what?

It was, I think this, it was jewelry.

There was like, it was like a necklace.

He had it with a specific pen.

I don't remember what the pendant was, but it was a specific pendant, I think.

And he recognized that as being something he had purchased for his wife.

Okay.

And, and its value was, you know, over $300.

And so now we have a burglary and a grand theft established because he didn't give anybody

permission to enter his home.

And here's this property that's missing.

That's in the custody of my client six months later.

The homeowner.

Right.

Okay.

And what else do they put up?

And then they do, then they go with, you know, here is the, the person who served the

search for it and found court authorized search, court authorized search.

The court authorized search.

I'm missing my own, violating my own motion to eliminate.

Um, I, I found it.

It was here.

Then there was, you know, then we get to fingerprint analysts.

Okay.

So I have a question.

So for these guys who are these folks who you have, like, you know, they're not the gist

of the case.

Do you even ask, do you even cross-examine them?

A little bit.

You're like, oh yeah, this is my house.

Yeah.

A little bit, a little bit.

And, you know, you know, I asked the homeowner, like, when was the last time you washed the

outside windowsill?

You know, so you can't tell me when that fingerprint was put, you know, who knows if

that fingerprint was put there the day you regularized or five days later or three days

before.

So you don't have any, just know that you showed up this day and this happened.

Right.

And the guy who did the search warrant, no, I didn't even ask him a question.

Like, he walked in, he found something and that was it.

Like, he didn't know anything.

So I left him alone.

Sit down.

Yeah.

Sit down.

Yeah.

I'm done with you.

Go away.

So then after the search, then they put up the fingerprint people, right?

Right.

Just the, here she is.

Oh, the supervisor.

Yes.

She is the supervisor.

Wait, how, wait.

Don't they have to, like, talk about how they, like, took the, was that the scene?

They dusted.

They found this.

That came in, that came in as well.

I forgot about that part.

Okay.

So who testified to that?

That's the, like, crime scene tech that came out to the burglary.

Okay.

It was, you know, just a fingerprint lift.

Okay.

And again, I, there was nothing, like, controversial about that at all.

Right.

Okay.

So she gets on the witness stand and they, she very much shows her, you know, says that

she's the supervisor and says that they follow, you know, all of the procedures and we

use our five time magnifying equipment and, you know, did a side-by-side comparison and,

you know, based on the points of comparison and the points of that, that match, then yes,

this is, in fact, your client, my client's fingerprint there.

Okay.

Sure enough.

Great.

Great.

So I get up and I ask her to, I, if she'd ever heard of Swigfast, like we talked about

before, I asked her if she'd ever heard of, of this working group.

It's called Swing?

She says, yeah.

Swingfast?

Swig.

Swigfast.

Swigfast.

Swigfast.

Scientific Working Group on Forensic Science Technology.

Okay.

You can Google it.

Okay.

So she, you asked her if she's heard of Swigfast.

She says.

Yeah.

She says, yes, I'm all for it.

You know, we think it's great.

And I said, okay, what kind of, you know, what, what's your educational background?

And she says that she has an associate's in forensic science.

And I said, Hey, wait a minute.

Didn't Swingfast say that you're supposed to have a bachelor's in applied science and not

just some associates in something else?

And she said, yes.

And I said, so if you were to come out and try and apply for your job today, you wouldn't

be qualified for it.

Yeah.

And she said, she said she would have been grandfathered in.

I love it.

That's even a better answer.

Right.

So, so then, you know, I start talking about, I said, look, how many points of comparison

did you like how, I know when we're talking and I even like hyped up DNA a little bit.

I said, you're talking about DNA.

You've got, you know, 18 different loci that you're looking at and 23 or however many it

was.

How many points of comparison do you look for?

And she said, we don't keep track of the number of points of comparison.

So I can't tell you how many points on these two fingerprints matched.

And I just know that overall, they look like they, they, they match.

And when you say points of comparison, you're referring to like, like the, the way there's

a circular area and this on, can you explain what the points of comparison are?

So yeah, we'll talk about swirls, loops, open-ended swirls, all kinds of different language.

And, and they will never be able to say on this left fingerprint, I found five swoops and

four open-ended swirls.

And on the right one, I found five swoops and four open-ended swirls.

They won't tell you how many different points they found that were in agreement.

They will just say there were a sufficient number of points in agreement, whether that's eight,

nine, 13, 15, four, like there is no answer to that question, according to these people.

So, so, so, so, so, so there's no answer to how many it should be, nor how many it actually

is.

Correct.

Neither.

So, so the answer could be, it should be a hundred, but we found two?

Correct.

But that's, nope, they're, they, we don't do that.

That's not how fingerprint comparison works.

Oh, silly boy.

That's not.

How, how does it work then?

So you guys just look at it, look at two pictures and say that looks similar.

We're not going to keep notes on how many, why it's similar?

That is exactly correct.

So, so this is like, this is like, like you go to math class and your teacher says, we're

having a test today.

You will be graded on the steps that you do.

And you just give the answer.

You're like, I gave the answer, but you didn't show any work.

They did not show any work.

And we're supposed to trust you.

You weren't supposed to trust you because you have an AA degree.

That was, that was another point of cross-examination that they never made any charts or graphs.

They never did any measurements, any, they didn't blow anything up past like five times

their magnifying glass.

They did nothing along those lines.

And at some point in time, you know, they will testify that, you know, oh yeah, they have

to pass proficiency tests where they're giving, you know, known samples and asked to do a

fingerprint comparison and then have their supervisor check the, the comparison and make sure they

got it right.

That's one of the things that they were supposed to do.

On a regular basis.

And she said she had passed all of her proficiency tests.

In addition, they said that they have a secondary person check every fingerprint that they declared

to be a match.

And she had never made a mistake ever, ever, ever in the history of ever made a mistake in identifying

fingerprints ever.

But she just had other law enforcement checker work, right?

It's not like some independent person, like a teacher and professor of fingerprints that you go to like at a university.

And that's, that's, that I got into that during cross-examination as well.

And again, it was, she learned, she learned from people that doesn't know anything about points of comparison that just say it's sufficient, but they can't tell you what is sufficient.

And so she compares it to another person who, who, who, who spits gray garbily gook and they say it sounds good too.

And it all sounds great.

It's all sufficient.

Okay.

How does she know that she never made a mistake because the supervisor told her?

Yes.

That's hearsay.

Yeah, no, she, she had never in her, in the history of ever had a comparison that she said was a match and somebody else came back and disagreed.

Or if there was an exclusion, had somebody come back and disagreed.

She is perfectly perfect in every way.

So, so, so, you know, that, that, that is an indictment on science in and of itself because science is never perfect.

But it also reminds me of a story of my father, who was a truck driver, who used to go to the DMV, you know, you had to take the proficiency exam.

He had all of the tests with him because they only give you seven different tests.

So we would walk in with the seven different tests and be like, oh, it's this one.

Here are the right answers.

And then he walked out, like, that's not a proficiency exam.

This is someone with seven different tests.

It was, yeah, that, that was, that has been there.

That was their testimony.

That was the way they testified, whether it was the supervisor or the Yahoo in the lab code.

That, it was generally, that's how it went down.

And so I pointed all of those things that you're talking about out to the jury.

You're basically doing my cross-examination for me.

Like, ma'am, what do you consider junk science?

Have you ever heard of the term junk science?

Yeah.

I think I asked her about confirmation bias.

That was another one of my big, because, you know, she was, she wasn't asked to compare

anybody else's fingerprint.

She was just asked to compare it to my guy's fingerprint.

And lo and behold, the guy that they arrested for this offense, his fingerprint matched the one that was there, even though there's not a number of points of comparison or any measurements or anything past being blown up five times.

They didn't even lay them on top of each other to take a look that way.

You know, they, it was all side by side with a little magnifying glass that.

That you can get at Michael.

Yeah.

Like, like at the jewelry store, you go to Jared's and they got that jewelry diamond.

Then look at the diamonds.

Yeah.

Mark, was there any other points of cross-examination you made with the expert, the forensic fingerprint analysis person that you remember?

I think the timestamp is, you know, it was the timing as well.

You know, like not, you can't, you can, you can say that this fingerprint was here on the day that the burglary happened, but you don't, you can't tell me that.

You could have been there a week.

It could have been there a month.

It could have been there after the burglary.

You know, you have no idea when that fingerprint actually got there.

And she had to say no.

Okay.

Okay.

So she did admit that she can't put her time on it.

Yeah.

She was unable to say when, in fact, that fingerprint was placed there.

It is not a definite that it was on the date that the burglary occurred.

It sounds like she kind of conceded though, a lot of your points, right?

She wasn't really pushing back.

Was she?

She wasn't when she, when we were, she was talking about the points of comparison.

It was more just like, well, the industry standard is that we don't have to give you a number.

Essentially.

It wasn't, it wasn't like, and there was another issue where she said, we followed our standard operating procedures.

And I had the list of Tampa police department operating procedures, which is who she worked for.

And I set it down and I said, what number?

And she, she didn't know.

So I started flipping through.

I'm like, is it this one?

No.

Is it this one?

No, not that one.

Okay.

Yeah.

You don't know.

All right.

You don't know how to do the operating procedure.

You couldn't get your job right now.

You don't know how many points of comparison you had.

You can't tell me when the fingerprint was placed there.

Like, what is it that you do here?

Um, so then the, the, the DA get up and try to rehabilitate at all, or.

You know, and it was, you could tell that they were not prepared for that to happen.

Um, they were, they were, they were not expecting like that kind of aggression because like I was softballing everything else.

And so I don't think that it, I think it caught everybody off guard.

Nice.

Nice.

So then, uh, after the, the forensic fingerprint person's testifying, what happens next in trial?

That that's essentially it.

Like my, they played my client statement where he, you know, admits to being in possession of the property, which I also find helpful because he said he bought it from, you know, Ray Ray, the base air basically.

So it's, I'm fine with that statement.

Great.

Go ahead and play it.

And so I barely, you know, cross-examined the detective much more than this is the only suspect that you had, right?

You didn't look around for anybody else.

This guy had the property.

You didn't, that was it for you.

Right.

And they're like, yeah, that was pretty much it.

Like we didn't do anything else.

You didn't look for Ray Ray, the base, sir.

No, no.

They, my client was clearly lying.

Why would they, why would they believe the black guy with the stolen property?

But like, wouldn't you, like he said, there's a, there's a, a ring of unhoused drug addicts that are, that are robbing apartments or houses and you didn't look for anything.

And he's willing to tell, he told you all of this on the record.

You didn't even look.

Didn't, didn't do anything to just took the statement and said, thank you very much.

And send him to, send him to book it.

All right.

So then, um, so the, so the prosecution rests, right?

That's it.

That's it.

We go to, we go to closing.

Wait, the fence, hold on.

The fence doesn't put on any evidence.

No client does not testify.

He wouldn't, he wouldn't have said it.

He had a prior felony, which they did not know about if he did not testify.

So in Florida, they don't get to know you have a prior felony unless you get on the witness stand and testify.

And it's the same for every witness.

So any witness who has a felony conviction, they can be asked the same questions as he didn't want to testify because his statement was already there.

Yeah.

And he had a prior that they didn't, I didn't want him to know about.

So that was it.

We state rest.

I said, dismiss this.

The judge said, no, um, we're, we're going to closing.

All right.

Great.

Who does, who does the closing?

Me.

You did.

Okay.

How's that go?

I mean, I just, I wasn't as enraged.

It was more of like, are you serious?

Like, are you serious?

Are you seriously going to take this person's word for it when she couldn't even get her job today?

Like, are you seriously going to take this person who says she's never made a mistake in her entire professional career, nor has anybody that she's ever supervised made a mistake?

Like, are you kidding me right now?

It was really like, you've got to be joking.

Like, there's got to be more to it.

I can't be, I can't be the only one that's disturbed by this.

Yeah.

I, you know, I care about my clients.

I do my best.

I make mistakes all the time.

It had just, it's just part of that.

That's part of it.

It was like, you know, this person never, never made a mistake ever, ever.

And, and testified to it.

Ladies and gentlemen of the jury, you've all had, you all have jobs.

Can you all say confidently that you've never made a mistake at your job ever?

And you've never met anybody at your job who's made a mistake at the job?

Anybody here?

Is there one?

Ladies and gentlemen.

That was it.

That was it.

I was, yeah.

Nice.

And then what about the prosecutor's closing?

Do you remember?

It was, you know, you can trust her.

She's got the training and experience.

His fingerprint was there.

He had possession of it.

You know, and also, you know, I, I, part of the, the jury instruction in Florida says that if, if they are in possession of recently stolen property,

property, then you can presume that they are guilty of the burglary unless it's rebutted, right?

So his statement rebutted that, that presumption.

And I had, I dealt, I said, look, you, you, you heard a statement from him that, that he gave you an explanation as to why he was in possession of this property six months after, which is not recent.

And, you know, let's let, and the state said that I was full of, full of hooey, essentially.

So then how was your client during the case?

Was he pretty excited?

He was the same for both of these.

Like, he just was, he was stayed mad.

Like, no matter what, no matter how good things went, like, no matter, I spent probably 45 minutes with that fingerprint examiner and called her everything but a white woman.

And he was still seriously like, man, I shouldn't, I shouldn't be here.

I need to get this people.

I can't believe they're doing this to me.

Like, it was, that's how he stayed mad.

That's crazy.

So then how long did the jurors deliberate for?

Probably about 45 minutes.

And, you know, during this time, I go back to the office and, you know, people would say, I heard that crossing, the crossing was good.

The closing was good.

Because we had, you know, people could watch, you know, open courtrooms, people.

So there were a couple of people watching and they, you know, sounded good.

I liked it.

We get the call.

We go back over.

I'm thinking, you know, 45 minutes.

They, they probably bought this lady's BS.

I did everything I could.

So I'm feeling, yeah, I'm not feeling great at that point.

And normally, I mean, you guys have tried cases and the more, you know, anytime you get serious cases, sometimes, even if you guys in custody, you'll get the extra bailiff behind you.

You'll get an extra bailiff or two behind you if a guilty verdict's coming.

So we walk in and nobody goes behind, like, there's no bailiffs coming behind me.

And I'm, you know, I'm looking around like, this is, all right.

This guy's been like mean mugging the whole trial and you guys aren't coming anywhere near me.

Okay.

That's, that's great.

Judge looks at it, gives it, gives it to the clerk.

They read it.

Not guilty.

Nice.

Nice.

One cat.

Not, doesn't say a word.

Doesn't, nothing.

Jury folds out.

Judge, former Jag judge gets all red in the face because he really wanted to sentence somebody that day.

And says, we will see you tomorrow.

Wow.

When you come back to try the next case.

Oh, man.

So, so we, we, we walk out, my trial partner and I walk out, we get in the elevator.

I'm just him and I, I just look at him.

I said, what the fuck just happened?

Like, how, how did that, how did we just do that?

Like, I have no, how did that just happen?

And he just says, I don't know.

I don't know.

So we walk back to the office and we come back to do it all again the next day.

Is that crazy that there was no other, there was no bailiffs?

I mean, like, did they, they, they, well, there were bailiffs in the courtroom.

They just weren't behind me.

Right.

So the bailiffs were there to do security, but normally, like, if you get a guilty verdict,

there's the normal, and then there's a couple behind your guy because they're going to hook

him up right in front of the jury to show the general public, look, we take crime seriously.

Like, that's, it's all optics.

It's all presentation.

That's how they do it.

And so when they weren't there, I was like, wait a minute, like, they're not going to do

that.

Why aren't they going to do that?

And it never occurred to me that we won that trial.

It just never occurred to me.

You're like, could you say it again?

I think you might have been able to.

Let me see the paper.

Yeah.

I need, I need to take a copy of that.

Can I pull that?

I need to pull.

Let's, let's pull the jury.

I want to hear it again.

So you, you survived one night, you got one.

All right.

So now you're coming back to the next day with a judge who, who seems upset, right?

Yeah.

A judge who's mad, who really wants it out for your client now.

Yeah.

He's salty on the second time we came in and it's the same fingerprint examiner.

And I got, I got to cross examiner again, like the next day.

So I just went ham on her and she had the night to sit and stew about it.

Yeah.

And then come back and testify about the fingerprint she found on this firearm that was in my client's

closet.

Okay.

When they serve the, when they do the court authorized cert.

Well, let's, I mean, just real quick.

So the, I mean, same thing with the opening statements, kind of general, same thing.

Right.

At this point, like I was like, heck that worked the first time.

Right.

So if I had a different strike, I mean, part of, part of the felony, felon in possession

charges, I was going to blame his wife anyway, you know, cause it's a jointly occupied residence.

And, you know, I was going to say it's his wife's gun or something along those lines.

He never made any statements about the gun.

He only made statements about the stolen property.

So they didn't have any statements from him.

They never asked him about it.

Huh?

They never asked him about the gun.

They never like delve down.

And he, you know, it's like, it's not my gun.

Like, I don't know anything about it.

According to the supervisor of the fingerprint unit.

So, you know, again, this one, this one's a one day, you know, here's the search warrant officer.

I went and served the court authorized search.

I found a gun.

It's this guy's house.

We pull a fingerprint off it.

Fingerprint examiner.

Who's that fingerprint belong to?

Belongs to your client.

All right.

Great.

So let's try this again.

And she was somehow equally unprepared the second time.

So we go through it again.

And I, I, again, thought you say you really couldn't get your job.

You clearly are not qualified.

You never make mistakes ever, ever.

Oh, and by the way, like, you can't tell me when that fingerprint was put on that firearm.

Even if you believe that it is his fingerprint, you don't know when it was there.

She's, no, can't tell you that.

Hold, same thing happens again.

What, um, where was the fingerprint on the firearm?

Um, on the barrel.

Okay.

Yeah, it was, because, you know, the grip, it was like a nine millimeter grip was bumped.

It had what was raised grips on it.

So it had like, you know, you weren't going to get a fingerprint from there,

but you were going to be able to get one from the barrel.

Yeah.

Okay.

Somehow, allegedly.

So, and during your cross-examination the second time, was there any, there was no references

to the previous case yesterday, right?

There was no reference to like yesterday.

I kind of did a little bit because, you know, again, I, I had just asked her certain questions

the day before and any normal person, when they got embarrassed in front of somebody,

because the state attorney had to call and tell her that it was a not guilty verdict

before, when they told her to, to show up the next day.

Oh, I know.

Sorry.

I'm not sorry.

So you would think that a normal professional person would be mad.

They got embarrassed and try and fix some of the glaring problems and maybe come up

with some reasonable answers to the questions that you have to know are coming at this point.

You would think.

You would think.

So when I asked her a second time about, you know, what's the number of the standard

operating procedure, it changed from, I don't know, to we have our own separate standard

operating procedures that are separate and apart from the police department.

So you wouldn't be able to find any of them online.

You know, it was kind of like, you know, I have a girlfriend.

She lives in Canada.

It was one of those, one of those things.

She still didn't have any people.

Go back and re-examine anything and count anything.

She didn't do anything additional.

She just showed up again and tried the same line of bullshit.

Great.

I mean, that's kind of what they do, though.

I think that's kind of what the playbook is for the police and the prosecution.

Just because this one, it was an aberration.

That one not guilty didn't affect anything.

It was just a mistake by that jury.

I'm going to keep doing the same thing I'm doing because it's been working for however long.

You know what's great, too, is that, I mean, this is kind of what's nice.

I mean, if it's, I'm assuming that because this is in Florida, you kind of have, I mean,

I think if this was in California, everybody would just assume it's the man's gun.

Right?

In Florida, that, I mean, it definitely could be a female's gun, right?

You know, like...

Women also carry, yeah, women also carry guns in Florida.

Yes, they have pretty pink ones that they sell at the gun store down the road that you can

buy, like, a little pink 9mm for your purse.

It's fine.

Fine.

And Tampa has a lot of guns.

Like, I will say Tampa's got a lot of guns.

I got a lot of guns.

So she changed nothing other than the fact that they created their own, they created their

own manual that they chose not to share with either the police department or the public,

which, you know, really, really makes it, you know, credible.

That answer was actually better than I don't know.

Because the I don't know answer was, oh, you're such an idiot.

You don't even know your own standard operating procedure number.

And it turned into, wait, this is like a secret society that you guys just all hang out together

and, like, everybody's cool with each other.

So your standard operating manual, procedure manual, is as fake as the science that you're

doing.

Yes.

Yes.

Yeah, it did not go, it did not go well for her again.

Did she bring up the five-point magnifying glass again?

She did.

It's the five-time magnifying.

Because I feel like, because I would just go buy a regular magnifying glass.

I mean, like, if you pull it on the court, it'd be like, this, this thing, this is.

Oh, no, she admitted several times it was something that you could purchase over the counter from

Amazon for, like, ten bucks.

It wasn't any, you know, I said, well, you're talking about scientific equipment.

Like, you're not talking about, like, test tubes and shit, right?

Like, you're just talking about a magnifying glass.

Well, let's be real.

Tell me during cross-examination that you asked her.

You mean it's a $10 magnifying glass?

I don't know what I put in price on it, but I did, in fact, ask her if I could go and buy

it over the counter somewhere.

And she said, yeah, I can go into any store that sells these things.

And buy it.

It's not like I have to have a special permit for these things, right?

Buy it.

And then I think in that one, it was-

It's equivalent to my son's decoder ring.

Like, he gets it in the little detective package, right?

You got the pop gun.

You got the little waist.

You got the little glasses.

And you got the magnifying glass.

Like, that one?

That one.

That exact one.

That's the one they used.

Did the DA do anything different?

No.

No.

That was the strange part.

Like, they didn't learn.

The prosecution, they introduced your client's statement, right?

Or no?

They should not make a statement about the firearms.

So there's no statement for them.

They just said, look, it's his house.

It's with all this other-

It's in his room, in his closet.

His fingerprint is on it.

It's his gun.

And he's a felon.

That's it.

Okay.

So there you go.

And then, so state rests, right?

State rests.

Motion to dismiss, denied.

All right.

Yes.

Defense case?

No.

My client did not testify.

I did bring out through the officer that the wife was there, that there was women's clothes

as well as men's clothes in the closet.

And argued during closing, like, again, how are you going to believe this nonsense, this

fake science they're coming up with?

And they're saying that, and they can't, even if you believe this science, they can't

tell you on the day they charged him, because it was not like a period of time that he had

the gun.

It was on this specific day.

They can't prove to you that he had any, they even touched it that day, whether it

fingerprints on it or not.

Did she say the whole never done anything wrong again?

Oh, sure.

Oh, she's perfect again today.

Yeah.

Still perfect.

Still.

Even after, even after, and that's the thing.

I couldn't just say, hey, wait a minute.

Didn't six people yesterday just find you were full of shit?

Didn't that just happen?

Are you kidding?

I could not bring it up.

But in the back of my mind, that's what I was thinking, like, really, you're still, really,

we're still perfect, are we?

Okay.

Still perfect.

All right.

So let's talk about closing arguments.

The same, like, this nonsense science.

You can't put it in his hand at any point in time.

It's not his gun.

Like, what are we even doing here?

I'm outraged again.

It's just filled with outrage.

All right.

It's time for jury deliberations then?

This one was faster.

Oh.

Nice.

So I think this one was, like, 25 minutes.

And so I barely made it back to my office.

And, like, so at the PD's office in Tampa, we used to give, we used to have a flag that

if you got a not guilty verdict, they would hang the flag on the outside of your office door

until the next not guilty.

So you get to have it there until the next person gets not guilty, and then they get to

come take it from you.

So I still had the damn flag on my door from yesterday.

I get into my office.

I said, yeah, I don't think that one went very, you know, she had some of their answers,

but it's, like, firearms.

So, like, people don't like felons with firearms.

I'm still a little rough.

We go back in again.

There's no bailiffs behind me.

And I picked up on it this time, like, faster.

And I just, I nudged my trial partner.

I go, it's going to happen again.

It's Groundhog's Day over there.

Right.

Jerry comes in.

Judge looks at the verdict, just slams it shut.

Yeah.

Read it slower, Your Honor.

She stands up.

Quiet, not guilty.

Boom.

He discharges the panel, and then he just gets red.

And it was, and that, like, I, at that point, like, I'm just smiling.

Like, I don't even know, I don't even know what to do with myself at that point.

Your Honor, bring it in.

Let's give a, let's get a hug.

Bring it in.

Bring it in, Your Honor.

Like, are you not entertained yet?

Bring it in, Your Honor.

This is fun.

This is fun, Judge.

Are you having fun yet?

I'm having fun.

Your Honor, Your Honor, I know you're a little frustrated, and I want to, I want to hug you so

that I could give you some of my joy.

Yeah, let's, let's bring it in.

Let's hug it out, Judge.

Let's hug it out.

It's going to be fine.

Let's hug it out.

Come on, man.

We'll get to send somebody else at some point in time, I promise.

Did the, did the judge do anything different on the second trial, the kind of, like, sort

of tilt scales or anything like that?

No, he, you know, as bad as he got at, like, not guilty verdicts, he was, he was

a balls and strike guy.

Like, I, especially, I tried a bunch of bigger cases in his courtroom, too, and he would

always give me, like, a wide berth, because he would know that it's a heck of a lot easier

to allow me to do stuff than it is to say no to me and have an appellate court say, you

should have let him do it.

So, he would, he was up.

I never, he was just very on time.

Court starts at this time, you will be there, and we're going to go until this time, and

it was very regimented, and he wanted to sentence people that he thought committed crimes, and

I'm pretty sure he was convinced this guy committed these two crimes, and two different

juries said no, no.

No, he didn't.

Also, probably upset that the prosecutor didn't do anything, didn't think about this very much.

Yeah, he was probably, he was definitely mad about that.

Did the prosecution make any reaction or comments to the two losses?

They, so, so we go back the following week, right?

Because we still have three or four more of these things.

Let's do it again, baby!

So, we show up on the next Monday morning, and, you know, the judge looks at the state

attorney and says, have you guys reconsidered extending any plea negotiations to this client?

And they said, no.

And he just looks and goes, were you not aware of what happened last week?

And we paused for a second.

I think we tried another one, and that was the thing.

So, the following week, there was another burglary with another fingerprint, and she showed up

with, like, charts and graphs and measurements and all this shit.

Like, she showed up prepared over the weekend and was ready for me the third time.

And I complained, you know, you judge, you can't let that in.

He just looked and said, you're getting mad because she fixed all the problems you pointed

out last week?

You don't get to, you don't get to do, you don't get to do that.

That's called coming in.

So, then he got convicted in another concurrent 30, and they finally said, fine, he can have,

you know, end concurrent, so we can go away with the rest of it.

Yeah.

He pled to the remainder of them.

Ugh.

And apparently, I have found out that Tampa Police Department completely changed the way

that they did fingerprint examination, partially because of this case, as well as some good

work that was done after I left there to kind of keep going down that track, to stop this

nonsense from continuing to happen.

Correct.

What are some changes that Tampa made?

You're getting a few more demonstrative aids.

They're being a little bit more transparent about how it is that they're doing the comparison.

They're relying more on APHIS.

You're not going to get as many, like, single fingerprint cases coming out of there.

And I don't work in Tampa anymore.

I haven't for a few years.

But I was told that they have changed that they have changed the department's policy going forward, and they actually are fairly legitimate now.

They were not.

Do they?

Exactly.

Do they?

Do they still have the secret manual?

Like, the secret manual?

I don't know.

I don't know if they've actually published it.

Like, I stopped being concerned about that a few years ago when I left there.

That's crazy.

That's crazy.

So, I feel like, though, I mean, like, you know, the client is doing 30 years right now.

You know, that kind of sucks.

I just, I'm glad you still reached out to us, though, to kind of, like, tell this story about, like, how you've sort of put in a dent.

You stopped the wheels of mass incarceration, you know, that grinded to a halt for a second.

And yet you changed the system to hopefully make things a little bit more reliable and the evidence a little bit, you know, a little more reliable.

So, I don't know.

I mean, this is a mixed bag type story here.

I was trying to, I was thinking about it because I'm like, you know, the story didn't have the greatest.

Like, my client walked out of the jail and got married and had five kids and lived happily ever after.

Like, that's, he complained about me being ineffective for the trial that I lost.

And I just had to testify in a hearing not too long ago for him, which is too bad.

But at the same time, like, I felt like it was a story for the grinders, like, not the guys who were on the app, but, like, the guys who were in the trenches every day.

Because this stuff happens, like, every day to all of us.

Like, there is a public defenders out there who are getting pushed by a judge to go to trial next week on stuff that probably should get worked out or shouldn't go to trial in the first place.

But that PD is going to be out there digging their heels in, and God bless them.

Yeah.

And fighting against pseudoscience is, like, the work of this generation.

Yeah.

For years, they have been telling us burn and bite and hair, which now what we're discovering is all of that was some okey-doke foolishness, you know, that they should even be calling science, right?

And that even when that's pointed out, they're like, oh, but I've been doing it this way for 30 years, so it has to be right.

Like, no, it was wrong for – your career has been bullshit.

What they used to testify to is, you know, look, the science on the – they always say the science on fingerprints has been the same for 100 years.

And my response to that was always, like, that's the fucking problem.

The same – we've been doing the same shit since the 1910s, and it's 2020 now, so let's –

How many people went to prison based off this bullshit science and bullshit testimony?

Thousands.

Hundreds of thousands.

Yeah.

And the thing is – this is one thing I talk about.

Like, we talk about people who, like, get exonerated or get released from prison because, like, DNA evidence, you know, exonerates them and this and that.

And then they even have a finite number.

It's like this many people, 100 or 1,000, whatever, which, you know, maybe of the millions of cases doesn't seem like a lot.

But those are only, like, the murder cases where people have been in for 20 years.

People go to prison on bullshit science and only do two years or three years or four years.

And you will never hear about how that was a wrongful conviction because they get out before it actually comes to light.

So that number is exponentially even more than that.

But we don't – we'll never know about it.

No, it's terrible.

Yeah, and that's – I kind of have prided myself over my career.

Like, any time that there's a science-y thing, like, that's my jam.

So, you know, I'll sit and talk DNA with you all day long.

I'll sit and talk firearms, which is another junk science if you really want to get down to it, firearm science and fingerprints.

Like, all of it.

All of it frustrates me.

And what I like about this case, too, I think this is a great trial for some of the younger lawyers out there to hear, is that you just, like – you went in there and you had a plan.

You're like, I'm going to attack this one thing, and I'm going to be an expert on this one thing.

I'm going to know more than their expert on this one thing, and that's it.

It's just this one thing.

And you just go in there and you hound that and you execute that one thing, and there's reasonable doubt right there because of it.

So, excellent, excellent lawyering right there.

That was great.

Strategery.

Yeah.

That's wisdom.

Doing this for so many years, you know.

And the idea that the judge is like, hurry up, let's move quickly so I can put your guy – sentence your guy, and it didn't happen twice.

Like, oh, you want to hurry up to get these?

So let's count out how long it took to get these not guilty.

So we're talking about less than an hour is what it took for them to deliberate for two full days of – I mean, this is chef's kiss right here.

This is mwah.

You hear that, younger lawyers?

Hand down.

Chef's kiss down.

All right.

Well, this has been great.

Let's close it out now.

So, Mark, thanks for coming on the show.

Glad you reached out to us.

Thanks for having me.

This is absolutely a blast.

Yeah.

Are you a fan of the show?

How long have you been listening, or how did you find out about it?

I found out on Twitter, actually.

So, like, I follow somebody on Twitter, and they were requesting, you know, podcasts to listen to for brand-new public defenders.

And they said, no, they're not guilty.

You got to listen to it.

And so I did.

And then after a couple episodes, when you put out that thing and said, hey, if you have a not guilty, you know, contact us.

So I did.

And I don't know if I was hoping that it was going to be entertaining for people.

And then, of course, you know.

I'm entertained.

Well, that's the important part, George.

And during the pendency, like, obviously, I got trial psychosis a couple times because I remember texting you, like, in the middle of trial prep on huge capital cases saying, like, that's it.

You guys are going to get the best story.

Like, this is going to be a not guilty.

And then, like, no, it's not.

It's a life sentence and by Felicia.

So I just, I was very, I'm very happy to have the catharsis to actually, like, put the positive ones out there sometimes.

Yeah.

All right.

Well, let's close it out with the question that we ask all our guests.

Mark, you've been a public defender for how many years now?

21.

21 years.

Yeah.

All right.

Right on.

Right on.

And what brought you here?

What got you into the game here?

I am a trial attorney by nature.

And my first interview out of law school for a real legal job was with the state attorney's office.

And they asked me if I was in favor of the death penalty.

And I said, you know, we spend a lot of money on that.

I probably would rather spend that money on something else.

And they asked me about prosecuting people for residue amounts of drugs, you know, whether as the actual, you know, residue of cocaine, as actual cocaine.

I said, that seems problematic.

I don't, I don't know that I could do that.

And they said, you sound like you would make a great public defender.

Why don't you go ahead and interview over there?

And I went to Tampa and that's what happened.

Did you know about the public defender's office back then?

Or maybe it's just, did it cross your mind?

No, I went to, I went to Stetson law school, which down in Florida.

It's got a fairly big name as being a trial school.

So like the trial advocacy program at Stetson, like they, they churn out, they win, you know, the trial advocacy team, trial team goes places for Stetson and wins all the time.

So you know how to try a case coming out of Stetson.

I told my trial ad professor, I said, I really love, this is me.

This is me as an attorney.

Like, where do I go?

And he said, state attorney or public defender.

And so that's the only places that, that I had tried.

And the state attorney's office either didn't want me or called after I got the job.

So I probably could have done that anyway.

That's great.

That's great.

Well, thank you for coming on the show.

I don't like bullies very much.

No, no.

Fuck them bullies.

Part of my deal.

Like judo, right?

Want to use that weight against you.

All right.

All right.

I'm going to close it out.

Thanks for coming on the show, Mark.

And George, thanks for co-hosting today.

It's always fun.

It's always a good time.

So.

Big fun.

All right.

All right.

Until next time.

Thanks, guys.

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.

We'll be back in two weeks with Another Not Guilty straight from the trenches.