What's In The Box?!?! What's In The Box?!?! – When the State's Star Witness Falls Flat

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Now, without further ado, here's this week's episode of Another Not Guilty.

First officer we talked to, you deny having drugs on you twice.

And she tried to play some games.

I'd have never lied to anybody.

And I said, well, did you, were you asked if you had drugs on you?

Yes.

Did you say no?

Yes.

Was that the truth?

No.

So that's a lie.

Then a unique kind of thing transpires is in this courtroom, the judge allows the jurors

to submit written questions to the witness.

And the one that was the most important was, are you high right now?

And the jury is outright questioning whether she's sober right now.

It's season three of Another Not Guilty.

I'm David Moore.

Here, along with my fellow public defenders, presenting to you the untold stories of the

criminal justice system.

Objection!

That assumes there's justice in the system, which there ain't.

I prefer calling it the American criminal system.

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

In an unjust criminal system.

With a deck stacked against us.

Another not-guilty.

Wow.

Welcome back, everybody.

Season three of Another Not Guilty.

Your boy, David, here.

Still bringing you all the cool stories from the trenches of the criminal justice system.

Today, we have a pretty awesome guest.

Coming all the way from Ohio, we have a public defender named Kevin with us today.

What's up, Kevin?

How are you doing?

Not much, Dave.

Good to be on the show.

I feel like I've made the public defender big leagues now.

Especially on the Another Not Guilty podcast.

You are.

And, you know, you're also setting a trend over there in Ohio.

You're our first Ohio public defender.

Yeah, there's plenty of good stories out here.

So, hopefully, that gets the ball rolling for more from Ohio to join.

Yeah, we want to hear from Ohio.

You're a big fan of the show, right?

So to speak?

Or not the two-mine horn here?

Big fan.

Big fan.

Yes.

I think I am in fanboy status.

Fanboy, okay.

I've listened to all the episodes thus far.

All right, man.

Well, listen, you know, no matter how you feel, you got to play it cool right now because you

got a story to deliver to the people, okay?

Can you put that aside and just tell your story, you know?

I will do my very best.

My Not Guilty is a large-level trafficking and possession case.

It's two felonies of first-degree aggravated possession of methamphetamine, aggravated trafficking

of methamphetamine.

For that, it's just alternative theories of the same drugs.

And then there's a low-level felony possession of mushrooms.

So the basic discovery facts are that detectives with a local drug task force in my jurisdiction

are doing surveillance on what they term to be target residences.

And while conducting surveillance on a particular house, the main detective in this investigation

sees what ends up being my client standing up on a porch to a house, talking to somebody

in the house.

There's a car in the driveway that he says has a female in it.

My client walks back to the car.

They're in there for a few minutes.

And then the female walks into the house.

And the detective says he sees her carrying what he phrases as an unknown object.

And that becomes important later on.

So your client, you said he walks to the car?

Is that what you said?

Walks back to the car.

Yeah.

And then the female exits the car and walks into the house carrying this unknown object.

Okay.

She is inside for a few minutes.

She comes out back into the car.

And the car then pulls away.

That's when the detective, who's in an undercover vehicle, follows them.

He says he sees a traffic violation.

I think it's a turn signal violation.

And radios to mark cruisers to pull my client over.

So they initiate a traffic stop that way.

Oh, thank God that there was a traffic violation, right?

Right.

Exactly.

Could you imagine if there was no traffic violation?

What would this drug task force do then without this traffic violation?

I'm not sure how they'd get any of their arrests.

And of course, there's no dashboard camera on the car that actually sees the violations conveniently enough.

I'm so blessed that drug dealers never think to follow the traffic violations.

Of course.

Of course.

Nobody seems to know what a turn signal is if you're dealing drugs.

No.

No.

Especially if you have large amounts of drugs in your car.

No reason to start following traffic laws anyway.

Okay, so the detective signals for the police officers or different police officers to pull over the car, right?

Yeah.

Yeah.

So a stop is made.

The stopping officer begins just the normal traffic stop questioning, but he notes that the female passenger in the vehicle, it appears that she has something tucked in her shirt near her right breast area and asks her two times if she's got anything on her.

And she says no, asks for consent to search the vehicle.

And of course, my client says yes, thus making this a much bigger situation than it probably could have been.

And your client's the driver?

My client is the driver.

Okay.

My client is the driver.

However, they search this vehicle and there's absolutely nothing in it.

So they separate the two and another officer comes onto the scene.

This other officer begins talking to the female and asks her, hey, you know, do you have anything on you?

He would later say he also noticed this apparent object in her breast area.

After she is asked by this second officer, if you have anything on you, she says no, she's asked again.

And then she says, yes, I do have something.

And she pulls out 14 grams of meth and hands it over to the officer.

And so the detective that sees them commit the traffic violation who is observing the house, he then arrives on scene.

And this is where the whole case theory kind of comes together.

So he then begins talking to the female and starts questioning her about the meth that she's got on her.

And that's when she says, hey, my client reached out to her on Facebook Messenger earlier that night and asked if she wanted to assist in doing some drops or some deals.

And that she says that after he picked her up, she had been reaching out to another potential buyers, how we could phrase it, in regards to buying a large amount of methamphetamine and that they were going to meet at this house that the detectives saw them.

She then said that the 14 grams she had on her that she just gave to the officers was given to her by my client, that there was another bag of 14 grams that is at the house and that there is a box that she walked into the house that contained a large amount of methamphetamine.

What ends up being 153 grams of it.

So that's what she says.

So she just spills everything right there on the side of the side of the road, right there, right?

Right there on the side of the road.

And so the detective says, OK, I'm going to take you back to the house.

You're going to go get me that box and that 14 grams.

And then we're going to charge my client.

And that's exactly what happens.

The he drops her off.

She walks up to the front door of this house.

She says she requested the box that my client gave her and the homeowner gives it or hands it over.

They open the box.

They find the 153 grams of meth.

They find a small amount of mushrooms.

There's paraphernalia like baggies and a scale.

And then there are photos of my client's wife and himself.

So there's like eight, nine photos, mostly of her.

And then there's like one of the two of them.

So this is and this is all inside of a box.

All inside of.

Yeah.

Like it's like an eight by eight lockbox that they have.

And does your who is the homeowner?

The homeowner is oddly enough, it comes out at trial that the reason that the detective was surveilling this house is they had tips.

Anonymous, of course, that the homeowner was dealing drugs.

So that kind of played into my later strategy.

But she doesn't become a figure in the trial other than me kind of arguing that she's a drug dealer, too.

So the female passenger.

So she walks up to the door, knocks on the door, requests the box.

The homeowner goes back into the house.

Does he shut the door?

Goes back into that house and then returns with a box?

With a box and then another just bag of 14 grams of meth on top of it.

Wow.

Okay.

That is one cooperative homeowner.

I don't know.

That's weird.

That's very weird.

This homeowner knows there's drugs in his house.

It's cool enough to allow drug sales to be coming from his house.

And cooperative.

He just acquiesces to anybody's demands, I guess.

So, oh, I'm going to keep your drugs there, no problem.

Oh, the cops want them, no problem.

Whatever you want.

So, very strange.

And that has always kind of stuck out to me when I reviewed the case before we went to trial.

It's just weird, too, that there's a picture of your client and his wife inside of the box.

Yeah.

And I had some theories as to why.

And that kind of – it played into my closing argument after really this next piece.

Because there's one more added piece of evidence that the prosecution used as their theory were, of course, jail phone calls that were made after they arrest my client.

So, they actually arrested him after they received the box and the loose bag of meth.

All based on a female passenger just saying that, yeah, this is filled with meth and he gave me these two loose bags of 14 grams.

So, they arrest him.

Okay.

So, when he's in jail, they revoke his bond because, unfortunately, he also has another pending possession and trafficking case going on while this occurred.

So, because of the new charge, they revoke his bond to keep him in jail.

And he makes some phone calls to his wife.

And in one phone call, the wife says something to the effect of, I thought you're going to do a drop.

And in another phone call, she says, if the homeowner – and she uses the homeowner's name, but I'll save that as well.

If the homeowner opens my box, is what the wife says, and it's kind of alluded to that bad news would occur if the homeowner did so.

So, just not necessarily to the homeowner, but it would be bad for us.

Yeah, it'd be bad for us.

So, that's kind of the prosecution's evidence in a nutshell leading up to trial.

My problem with this entire task force is that they are known for kind of dictating the way the prosecution handles this.

They dictate plea bargains, which they don't ever agree to.

So, your clients have to plea as charged to take you to trial.

And they pretty much always recommend massive prison sentences.

So, the uphill battle with the task force in these kind of cases is pretty steep, and it usually results in clients doing a lot of prison time.

So, they're like – okay.

So, then, I mean, the drug task force is the task force, law enforcement task force going on in Newark right now, right?

Yes.

Yes.

Yes, they are.

So, that's – I mean, so there's some politics behind.

That's why they're running the show, so to speak.

Yeah, and then my sneaky suspicion is that's what the elected prosecutor kind of ran on to get law enforcement support is that I'll basically – you tell me what to do, and I will do it.

And that's how these unfortunate cases come to be.

You have to fight them because there's no wiggle room for anything.

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All right.

So, here – this is where we're at.

So, you get the case, you read – you go over these facts, your client – where do you go as a defense attorney from there?

This wasn't the typical task force case.

And when I say that, their usual MO is to flip somebody into doing a number of buys.

They record – you know, put them a wire on them the whole nine yards.

And that's the traditional way to do that, that the task force release does.

And when I got this, I recognized, okay, this female passenger is the entire – she's the entire case for them.

Right.

And my client had said to me that she's potentially not going to show up because, one, she did already.

That's why the case had to be dismissed.

And she's also willing to recant her statement to the police officers.

So, my kind of pretrial investigation and strategy buildup is all focused around trying to get in touch with her and finding her.

And for months, I'm trying to – at this point, I'm in private practice.

So, I would have to get an investigator through court funds or have to hire one out of my own pocket.

So, I'm kind of just doing the investigation on my own and trying to find her, going to addresses that I had heard that she was at,

trying to reach out on Facebook through people who could potentially find her.

And then, about a week before trial, I am scanning the jail list.

And I usually do this just to see if any clients got arrested.

And I see her name pop up.

And so, I make the decision that I need to go down and talk to her.

And, again, I probably should have had an investigator do it.

But I didn't really have time.

I wanted to get in there before she bonded out and disappeared again.

So, I go down there and I find her and I talk to her myself, kind of knowing that this could backfire on me

since I don't have any other witnesses around to kind of hear what she says.

And when I talk to her, she does, in fact, recant what she told the police.

So, she tells me that she wasn't certain that the box she pulled out of the house and gave to the police officers was the same thing that she walked into the house before that.

She said she had no idea what was inside.

She didn't think that she was helping out in any kind of drug activity, unlike what she put in her statement.

She understood it to be my client's wife's makeup box.

And because my client and his wife were kind of homeless and they were moving into this house.

So, she was just putting his wife's belongings inside.

And kind of importantly, she says that around the time of the incident, she was using meth and heroin heavily.

And around the time of the interview, she had gotten clean off heroin, but she was still using meth here and there.

And I showed her a picture of the box that police then photographed.

And I said, hey, do you think this is the box that you walked into that house?

And she's like, I don't think so.

But who knows?

I mean, she's high.

Okay. So, her memory is a suspect, period.

Yes. Yeah, it is suspect.

And that's kind of – that becomes basically her entire testimony is suspect.

And at least she talked to you about what she said.

Now, did you worry about her recanting or going back to her understatement at all?

Yes. Yes.

I was really worried about that after the fact, even more so, especially when we got off the trial.

Because, obviously, she could have said, I don't remember talking to you.

I never said any of that.

And I would have kind of been stuck because I couldn't have testified.

You can't be your own witness.

Right.

Yeah.

And like I said, I didn't know how long she'd be in.

And since she has a history of kind of being flighty, I just took the risk.

And, you know, since I'm on another not guilty, obviously it pays off.

All right.

So, what?

You made her pinky swear you then?

Or what did you do?

Put money on her?

She did not put money on her books.

You put money on her books or something like that?

No.

No.

I offered to buy her a honey bun.

No.

Cool.

So, then you go back and you tell your client, other than just attacking the credibility, does your client testify in this trial, by the way?

He does not.

Okay.

He does not.

He has an extensive history.

And like I said, he's doing time on a drug-related case.

So, didn't think it would be necessary.

And he didn't really want to.

Okay.

He went through a personal kind of some struggles throughout this.

Like I mentioned, his wife was in on some jail phone calls with him.

And then a few weeks after that, she actually dies.

So, he wasn't in a good state kind of emotionally.

And I don't think he would have done well handling up to cross-examination because he was really kind of struggling with that.

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All right.

Tell me about the trial then.

What's up with the judge you get in front of?

Extremely defense-friendly.

So, I knew that luckily it helped mitigate some of the risk of trial.

Like I said, he's already doing six years.

So, this is a trial regardless.

They're going to offer him three if he were to plead.

And I thought, knowing this judge, that since he was doing such a pretty significant period, that even if he was convicted, three, four, maybe five is probably what he's looking at.

Whereas, other judges definitely wouldn't have been the case.

The specific charge again, is it just possession?

Can you say what the charges were again?

So, officially, it's aggravated possession of drugs and it's aggravated trafficking in drugs.

What's aggravated possession of drugs?

What's that?

In Ohio, it's just possessing methamphetamine.

We call it aggravated just because it's a felony level, I think.

I really never understood why we call it aggravated because even if it's a felony five, the lowest level felony, it's still aggravated possession of drugs.

My understanding is just because it's not a misdemeanor.

You know, in California, we have a simple possession of drugs.

We don't have aggravated.

We have simple.

It's just simple possession.

So, we do jury selection very, very differently than it seems like you guys do.

It's very brief.

We probably take an hour and a half to two hours for voir dire.

And my kind of focus on voir dire is just kind of teaching principles to the jury.

And oddly enough, I think there was another guest that you had that had talked about asking voir dire, asking jurors on voir dire about people fighting speeding tickets.

And I actually completely stole that because I thought it was perfect for this.

Because I needed jurors who were not willing to just accept the law enforcement narrative on face value.

Oh, that would, hold on, just so our listeners know, I think you're talking about season two, episode 15, psych meds, reefer, and beer, oh my.

Or psych meds, beer, and reefer, oh my.

It was a DUI.

Yeah, I think that's it.

So, I forget the individual's name who had the case.

But, yeah, Peter, I totally stole your idea.

And I think it worked out great.

So, and I kind of play off that.

I also just do a number of examples kind of similar to that.

One of them, just to get the idea of not jumping to conclusions, I'll ask jurors, you know, you're driving down a dark residential street at night.

You see somebody crawling in the window of a house.

And I say to the jurors, who here would say to themselves, oh my God, the guy's burglarizing that house.

And a ton of jurors raise their hands.

Every single time I've done it, a ton of jurors raise their hands.

And then I ask, okay, who here has ever locked themselves out of their house?

And a ton more people raise their hands.

And then I ask, okay, so do we recognize the idea that just because you're crawling in a house doesn't mean you're burglarizing?

How many of you had then had to crawl in your own window just so you could get back into your own house?

And that's when you usually get a lot of jurors who say, yeah, yeah, yeah, that makes a lot of sense.

And I use that for kind of the presumption of innocence mindset to stay in that we're not jumping to, oh, this guy's guilty just at first blush.

As soon as you hear somebody just make the allegation or that first kind of glance thing, we need to maintain the presumption of innocence at all times.

Or else the person who would have seen you crawl through your own window would have called the cops on you for burglarizing your own house.

And a lot of jurors that I've talked to after have said that really resonates with me.

It makes a lot of sense because you hear the presumption of innocence and all that kind of said in law and order.

And I don't think it makes any sense to people in real terms.

Well, it's cool that you also – the example you use is another crime, burglary.

So you're keeping it in the criminal context as well.

Yeah, yeah, and I use Wadir – I mean, I ham it up.

I'm trying to get the jurors to like me because, you know, for obvious reasons.

I've got the guy who's charged with possessing a ton of meth, and I don't want to be seen as the slimy defense attorney.

I want to be seen as that person who, hey, I like that guy.

You know, he had some really nice points that made a lot of sense to me.

I try and get jurors laughing.

In most cases, there's some cases where, you know, obviously laughter isn't appropriate.

But in this one, I think it was.

From opening statement, I basically told the jury, look, there's two things to focus on here.

An unreliable witness, because I have no idea what this female passenger is going to say.

And regardless, it's not reliable.

It's absolutely not reliable.

She's a lying drug addict.

She had tons of motivation to save herself.

You can't take anything she says seriously.

And she's the single most important witness in this entire case.

And then the second item is that there's a complete lack of investigation that the jurors would really kind of pick up on as the trial went forward.

Cool.

So that's what your opening statement was?

It was really just a two-pronged approach.

Like I said, she's unreliable.

This investigation sucks.

And that's all you guys need to know.

Keep it simple.

So how does the case start rolling out for the prosecution?

What kind of evidence do they put up first?

There's only four witnesses.

There's the female passenger.

There's the main detective.

And then there's the two officers that were involved in the traffic stop.

And the two officers involved in the traffic stop, really the only thing that I needed to get out of them is that the female passenger denied having anything on her to each of them.

So just to highlight, okay, instance that she's lying.

And also that, you know, you search the car.

There was nothing in the car.

Okay.

I mean, that was really about it.

There was another officer who patted my client down and he had like, I think like $400 or $500 in cash on him.

And of course, you know, the prosecutor then says, oh, you've got cash on you.

You're a drug dealer.

You have to have that in the bank or else you're just a drug dealer, which always seems ridiculous to me.

But I then get out of another officer, hey, people who work under the table or maybe they do other jobs.

It's not uncommon to have cash on them.

He's like, yeah.

So that was really the only thing I needed out of those two.

And then, I mean, you also got the fact that your client was the one who consented to the search of the car, right?

Yeah.

And then who testifies next for the prosecution?

So the next is the female passenger.

And going in, since she was there, I had a sneaky suspicion that she was going to be cooperative with the prosecutor and not me.

Okay.

So I had some anxiety going in because, like we said, if she outright tells me that you didn't ask me any of those questions, we never met, I'm kind of screwed.

And my only strategy is then to, you know, ask those questions in a manner that makes the jury say, well, why is he asking that if that didn't happen?

But not the strongest position I want to be in.

So I'm kind of nervous as she's getting up on the stand.

So she testifies and she reverts back to her initial statements to the police.

So highlighting the whole thing that he picked me up, asked him to help him out with doing some drug deals.

We went to the house.

He then gave me a box and a bag of, he gave me two bags of meth.

One, I put in my shirt.

One, I walked into the house.

And then I, when the detective brought me back to the house, I got it out and handed it over to him.

That's basically what her testimony is.

She does add, oddly enough, some testimony that I had been reaching out to an individual to try to help facilitate a sale through Facebook Messenger.

And I showed the police officers those Facebook messages.

And so I kind of, as I'm taking notes here, I'm kind of putting circles and stars around that.

I'm like, okay, I've never heard of this before.

I never saw Facebook messages.

What the hell does it deal with that?

So she herself is messaging somebody on Facebook about sales, right?

About drug activity.

Yeah.

So I'm like, that would have been helpful to have.

So I kind of tabled that.

And she, I mean, her, like I said, her testimony is basically just a regurgitation of her witness statement with that added Facebook Messenger caveat.

So across, the first thing she does is she admits she talked to me.

So weighs off my chest.

I'm kind of like, okay, she's acknowledging she's talked to me.

We're at least going to be able to acknowledge that she's going to say some things differently here than she did to me.

And I kind of hammered out that, okay, first officer you talk to, you deny having drugs on you twice.

And she tried to play some games.

I didn't ever lie to anybody.

And I said, well, did you, were you asked if you had drugs on you?

Yes.

Did you say no?

Yes.

Was that the truth?

No.

So that's a lie.

Yes.

So she then, after having to do that, she says, okay, I lied to the first officer twice.

I lied to the second officer once.

Okay.

So you lied to them.

And then you acknowledge talking to me.

And she's like, yes.

And then got her to acknowledge all the things she said to me that she didn't think she was helping out with the drug deal.

That she acknowledged she told me she wasn't certain if the box she handed the police was the same one she put into the house.

So she, she acknowledged she told me all of that.

And she acknowledges she lied to me on direct.

She was asked by the prosecutor if she was still using drugs.

And she said no.

And so when she said that, I kind of, again, I highlighted that for, to touch up on.

And since she was already acknowledging that she did in fact tell me these things, I said, hey, you remember when you told me that you were using drugs heavily at the time of the incident?

Yeah.

You remember when you told me that you're still using here and there?

And she said, yeah, well, you know, it's hard to just quit.

I was like, oh, okay.

So when was the last time you used?

And she said, a few days ago.

Well, what does that mean?

You know, and she's like, oh, a few days ago.

One day ago?

No.

And then she said, I said, two days.

And she says, yes.

I'm like, so then you just lied to the prosecutor when you told them that you weren't using drugs anymore.

Just lied to this jury.

Really?

Yeah.

Yeah.

And she gives the, well, if you want to put it that way, kind of response.

And so at this point, I've gotten her to acknowledge that she's told all kinds of stories and just laying the seeds for her unreliability.

Nice.

So everything that I was worried about kind of went exactly my way.

And then a unique kind of thing transpires is in this courtroom, the judge allows the jurors to submit written questions to the witness.

And they'll write them down, they'll submit them to the judge, and the prosecutor and defense will kind of congregate and see if there's anything inadmissible about the question or if it's appropriate.

And if it is, it gets asked to the witness.

Do you have to agree?

Do both parties have to agree to allow the question?

Okay.

Yes.

So.

And the judge, it's the same thing.

I mean, I could object if the judge found it appropriate, then he would ask it.

But he would note the objection, you know, for the record.

Same basic principle as any other kind of question.

But traditionally, it has to be relevant, you know, abiding by the general principles of the rules of evidence.

It has to be relevant.

It can't be more prejudicial than probative.

It can't be.

Yeah.

Yeah.

Okay.

So they asked, this jury panel is actually very active.

For her, I think they asked three or four questions, which I've had a number of trials in front of this judge.

That's a lot for one witness.

And the one that was the most important was, are you high right now?

So all this talk that, you know, of her use and all that, and the jury is outright questioning whether she's sober right now.

So I see this question get submitted, and I'm just, inside, I'm jumping for joy.

I'm like, my entire strategy with her to discredit her has worked.

They're going to have a hard time believing her whatsoever.

How does that work with, do you, the judge, and the prosecutor, like, go into the back chambers?

Or, like, when a question's submitted, how do you know about it, that a question is submitted?

Or do you finish your questioning, prosecutor finishes your questioning, then you ask the jurors if they have questions, and then they hold up their hand and they raise a paper?

Yeah, the judge will say, any more questions from defense, you know what, and then he'll turn to the jury and say, jury, do you have any questions for this witness?

And then, yes, they'll raise their hands, and they're giving a notebook with some papers, a specific form to write a question in.

Then they'll write it, they'll submit it to the bailiff, bailiff hands it to the bench, and then defense and prosecutor will go up to the bench, and they flick on a white noise machine, and we talk about the questions.

Wait, a white noise, like, literally in the courtroom, there's a white noise?

We're in the courtroom, yeah.

And there's a white noise, like a...

It broadcasts, you know, like a...

Yeah, it broadcasts over the speakers, so they can't hear us.

But we're, like, five feet away from the jury, so they probably hear us anyway.

And so then, when you see this question, like, when they say, are you high, is the judge smiling, is laughing, is the prosecutor laughing at it?

Like, are you guys kind of having a...

I have to, I have to imagine the judge...

Who is a former criminal defense attorney, was already thinking that to begin with.

And the prosecutors inside are like, yeah, I mean, we're fucked with her.

So, I mean, there's no other way to take that question.

If your jurors are starting to question the sobriety of your best witness, you can't be feeling good about what's going on right now.

The best part about it, well, maybe not the best, but the questioning itself might be the best.

But she has, like, a pregnant pause after she's asked the question that just kind of, it was suspicious.

Like, it wasn't an immediate no.

There was a little hesitation.

Right.

And then it really kind of hammered home.

Yeah, you may have said no, but you really didn't.

Right.

Or how about the fact that you had to think about it?

Right.

That's not something most witnesses should be thinking about.

Well, wait.

The fact that I've been up all night, does that make me high still?

Just because I've been up all night.

Yeah, no, no.

And I her physical appearance did appear during times that she was nodding off and she wasn't completely alert.

I mean, there were some signs that the jury definitely picked up on physically.

Yeah.

So the next witness then is the detective.

And I'm feeling good about things, but I've had this detective in trials before and had trouble with him.

I felt like he was he testified well and I wasn't able to get my points out.

So I'm still concerned that he's going to be able to make up for some of her deficiencies.

This is the detective who was called to the scene after the discovery of methamphetamine or the one that was doing the surveillance?

Well, that's the same one.

Oh, it's the same guy.

OK.

Yeah.

He's doing the initial surveillance.

He calls in the the traffic violation.

Then he responds to the scene, takes her to the house and retrieves the drugs.

OK.

So he testifies.

And one of the first things I asked him was about her testimony about the Facebook messages between her and this potential buyer talking about drug activity.

And his response is, yes, I did see those.

I did not collect them because they didn't have any link to my client and drug activity.

And I was not prepared for that answer.

I was prepared for like a slick answer that, you know, made him look better.

But I was not prepared for him to kind of say, yeah, it turns out she's actually lying about that whole thing.

There was no drug activity on those on the phones.

It's almost like he said, like, yeah, well, I just didn't I didn't I ignored those because then that might have led to evidence that wasn't involved your client.

And since your client was right there and we arrested him, it's a lot easier to say he did it because she said so.

And we can just ignore this other set of evidence.

For me, when I heard that, a million things are running through my head.

I'm thinking, well, that's Brady evidence.

Under Brady versus Maryland and its progeny, the prosecution and law enforcement are required to preserve and provide to the defense all evidence that may exonerate the defendant.

And I'm also thinking this trial is going really well.

I it's getting better because it's fitting into my narrative of a terrible investigation.

I don't necessarily want to ask for a mistrial or anything like that because I think things are going well right now.

But I mean, holy shit, you can't not turn that over.

But that was I opted not to make it any hey of that other than argument later on in closing.

And then the next thing that I had that actually, again, turned.

I have a quick question real quick.

When the female passenger testified about the messages that she showed the detective on Facebook Messenger, did she give any further testimony about it or did you ask her about it?

No, no.

I kind of left it because I was afraid that if I got into it, she would give some details of, you know, maybe she she makes up some stuff about the the quantities or money.

And I didn't want any of that kind of coming out.

I just wanted to ask the detective about it later on.

I mean, he couldn't have given a better answer.

I mean, the fact that you didn't you didn't ask you didn't further the fact that you didn't ask any further questions about it because you didn't know where it would lead is why you're at a disadvantage for not being provided that information from the detective.

If the detective would have followed his obligations under Brady and turn over potentially exculpatory evidence, then you could have looked into it.

You could have investigated it and you would have been more knowledgeable about your own case.

And that's why it's important for the detective and the prosecution to give that evidence to the defense.

And then real quick, initially, I think you said when the police brought the female passenger back to the house, she knocked on the door.

She stayed outside the whole time.

It's the homeowner that went and got the box and brought it to her at the front door, right?

Yes.

Yes.

And the homeowner never testifies.

So and they never make any effort to try and secure her appearance.

And now that kind of I play played that up in closing, saying, like, look, if somebody knocked on your door and said, hey, I need the box filled with drugs and you're a drug dealer and you have an opportunity to get rid of a bunch of drugs and pawn it off on somebody else.

Why wouldn't you do that?

And who can say that that's not the case?

Nobody.

Nobody can say that that's not what happened because no effort was made to disprove that.

And so the last really thing that happened with the officer is, again, as it related to jury questions.

So the jury asked him a number of questions related to evidence collection, specifically DNA and fingerprints.

And I usually don't ask those questions because I get like a slick response of this surface isn't good for collecting DNA or fingerprints.

And then I don't want the detective to platform about how difficult it is to pull evidence and educate jurors about that.

So I usually save that, like I said, for closing.

Well, they ask the detective, why didn't you test any of these items in the box for DNA or fingerprints?

And so I'm really nervous when the question gets asked.

And then he gives an answer that just fucking blew me away because there's two jurors that I noticed that their physical expressions were they were very listening, very intently.

And I think these questions came from them.

They were very focused on what was going on.

And he says, well, the results would take too long to come back.

And mind you, he said something.

I think he referenced something like nine months later that DNA, DNA and fingerprints can come back.

And the case, the incident happened 11 months ago.

So he says that and the two jurors who I had pinpointed, their expressions go from very, you know, listening intently to what's going on and what's being said to sheer anger.

Like they are visibly upset.

And at that point, I'm like, OK, I've got two.

So if if we don't win this thing outright, you know, I think I've got a good chance to hang them because those two look pissed.

And after that, I'm like, OK, we're done.

This this has could not have played better into the this investigation suck narrative.

So after that, after that great answer from the from the detective, what happens next?

That's it. That's it.

That's the last witness.

After it ended that way, I didn't.

I just stipulated that the drugs were, in fact, drugs and they weighed what they weighed.

One, because it was getting late in the day.

And I made the decision that we've ended on a high note for the defense.

I don't want a chemist coming in and boring the shit out of these jurors and potentially making them come back there because this trial took one day.

No, that's good.

You can quit while you're ahead.

Quit on the high note.

It's the last.

It's the end of the day.

Yeah, of course.

So good.

So you stipulated to the drug, said it was drugs and they weighed 153 grams and then and then you're not going to put on a case, right?

No.

I mean, I talked to my client.

He was happy with the way things were going.

We didn't really have any plan for him to testify anyway.

I mean, you know, the jurors have doubt in the case.

I mean, their questions to the to the witnesses show that they were doubting the evidence.

So, yeah.

And that's that's really my closing argument is when we when we then start closing.

I said, look, I'm not going to tell you anything you guys already aren't aware of.

All of your questions have been right on point.

You have you've openly questioned the validity of this female passenger.

You have asked her if she's high.

You couldn't have asked that unless you had some doubt.

And can and are you really willing to believe the prosecution's theory of this case when the main witness who ties my client to that box that contains those drugs?

You're not even certain she's sober right now.

So I wasn't I really wasn't I wasn't kind of my kind of outline closing.

I kind of just riffed on it because they had already had those questions that they had.

The seeds had already been laid.

So I wasn't trying to, you know, further play into the idea that, hey, you guys know it.

You guys have this in the bag.

Everything you're thinking is right.

Go back there.

Find him not guilty.

You know, and I same thing with the the investigation aspect, you know, playing up the idea that they left this house unmonitored for 30 minutes.

There were Facebook messages that they didn't link to my client.

He consents to this search.

He's showing he has nothing to hide.

You asked about the DNA and fingerprints and we're seriously getting on the stand and telling you that takes too long to come back.

I mean, we're seriously trying to take away somebody's freedom based on tests that would take too long to come back.

I mean, is that really what you what you want your government to be doing?

And keeping it just to those things.

And that was that was really my closing argument.

Nice.

In a nutshell.

That's great.

Cool.

So then I guess the jurors go out and they deliberate.

Right.

How's your how's your client been throughout this whole trial anyways?

Emotional.

OK, because, you know, he he was already.

He lost his wife during the pendency of his case.

He got shipped to prison.

He had listened to his wife on a jail phone calls.

His discovery was focused around photographs of her.

He was emotional about it.

And I understood that completely.

It was just, you know, his world came crumbling down all within like a six month span.

And then he just had to have a trial in which he was the prosecutors are trying to throw him in jail for even longer.

He was very emotional throughout this whole thing.

Right.

That's going to be kind of that's going to be tough to listen to the prosecutor play a recording of your of your deceased wife's and then using her words to put you in jail with or to put you in prison for.

That's got a tough thing.

Yeah.

And the phone calls are kind of argumentative, too.

So you've got to listen to your wife and you argue.

Like, who wants to rehash one of the last conversations you have?

And it's a bad one.

Yeah.

So it definitely there was he cried throughout the jail phone calls.

And he mean, even my meetings with him prior to that, he was emotional to him.

All right.

So the jurors, how long do they deliberate for?

Two and a half hours.

OK.

So everything felt really good waiting.

Obviously, I was hoping, like I said, for a quicker verdict.

And the longer it took, the more I got worried, because I knew if this if they were going to be out for a long time, that they were probably deadlocked.

Because, like I said, I thought I had two jurors for sure.

Yeah.

And maybe not all of them, but I did feel really good about a lot of them.

Right.

I mean, there's definitely, I mean, they're definitely talking and arguing or going over the evidence because it's not a lot of evidence.

It's just a day trial.

So they definitely, like, had to, someone had to sway somebody, you know?

Right, right.

And, yeah, like I said, there's really only two key witnesses that matter in the entire situation.

So they had to have had some pretty in-depth discussions.

I didn't get a chance to talk to them afterwards because when the jury verdict came back, I had to get home, unfortunately.

But I did want to, and I just didn't have a chance to.

Get home to what?

What's that home?

I had to get home to my daughter, who at the time was not even one years old.

Oh, and representing our clients, fighting for our indigent clients against reckless charges, and being a family man at the same time.

Kevin, how do you do it?

I wear many hats, David.

I'm not sure exactly how sometimes, but I do my best.

Cool.

So then the jurors come back out, right?

And then how's the verdict read in Ohio?

So they hand the verdicts to the judge, and then the judge reads them.

So we, members of the jury, in the above caption case, find the defendant, and then not guilty.

And I knew as soon as count one was not guilty that they were all not guilty because there's really no way you could find.

We haven't talked about the mushrooms that were also in the box because it was such a small amount that it wasn't going to really do anything to them anyway.

But I knew once the first one was not guilty that they were all not guilty.

Great.

How did your client react?

He immediately broke down.

And admittedly, I got pretty emotional, too, because I felt for him.

You know, when you have a client for any amount of time, you get to know him.

I felt for the situation he was in.

And just seeing him kind of react that way was – those are emotional moments.

Well, good work, Kevin.

Nice.

I like that.

Thank you.

And it's always fun to, like – jury trials is just, like, full of unexpected things all the time.

You can't plan for everything.

You just got to know how to react in the right moment.

Yeah.

I mean, this is one of those – I think it could have gone way worse.

You know, like I said, had she – the female passenger just denied everything she said to me, then maybe the jurors don't feel the same way about her testimony.

Maybe they're less willing to pay attention to her physical state, less willing to question her sobriety on the stand.

And maybe the detective has a better answer for why he didn't DNA or fingerprint the stuff in the box.

And things could have gone worse.

And it was just one of those situations.

I think things went very well for us in a case that I think from the beginning, they just didn't have enough ever.

Right.

I didn't think there was any enough evidence to be prosecuting somebody for a 3 to 11-year prison term with the evidence that you had.

And that was always my feelings on it.

And I'm glad jurors felt the same way.

Well, it's kind of like, okay, so you're the major drug – is it what they call the major drug task force or what were they?

The aggravated drug task force.

Yeah.

And like what's going on?

Like they don't even – like this is 11 years – I mean 150 grams is a lot of meth.

And they don't even take the time to really properly investigate and find out who it really belongs to just to make sure.

We're really trying to like fight drug sales and drug trafficking if your whole purpose is to fight that and you're just too lazy to even bother with it.

I mean that's –

Yeah.

They – my client has probably made some bad decisions in his life.

And so they just said, look, he's a bad person and we're going to get him off the streets any way necessary, even if it means refusing to acknowledge that our case sucks and this isn't the one that we should be prosecuting.

We're just going to go for it anyway because what is it – what do we have to lose?

And it puts us in the situation of having to defend these bogus cases and hope juries see it our way.

It's just aggravating to me, especially with these situations where you're not even willing to plea bargain.

You're asking for three additional years on a six-year prison sentence as if that's some sort of small potatoes, which I can't even imagine being anywhere for – away from family for three days, much less three years.

This is a class one – this is a class one aggravated injustice here.

That's what this is.

It really is.

It really is.

Cool.

So, Kevin, how long have you been a defense attorney for again?

I have been a defense attorney for a little over five years.

Five years.

And then when you took this case, you were a court-appointed defense attorney but not like with a specific public defender's office, right?

Right. I was a private practice attorney who took a lot of court appointments.

I'd say about 90 percent of my caseload was court-appointed cases, indigent defendants.

Okay. And then you still – I mean, currently you are working for a public defender's office now.

I am. Yeah.

Right after this trial, I was hired on to a public defender's office.

Okay.

So then – so what made you decide to go into indigent defense?

Why do you want to be a public defender?

Well, I went to law school and I really didn't know what I wanted to do as far as which avenue of the law, whether it was business law, government law, criminal law.

And my first year summer, I got a placement with an externship, which I got class credit for, with an innocence project.

And I got hooked up with that.

And as part of that process, inmates in Ohio would kind of write to us and say why they felt they were wrongfully convicted of the crimes they were serving.

And I started to look into these cases, and at this point, I didn't know anything about the criminal justice system.

And I'm starting to read these cases.

You get my trial transcripts and police reports.

You talk to these individuals and investigate some of them.

And I started to be shocked at how easy people were doing life sentences or just lengthy prison sentences on things that I just felt that doesn't seem to be enough evidence there or heavy-handed tactics and just didn't seem fair to me.

And, you know, a lot of that time is, you know, you get poor criminal defense lawyers or just the defense lawyers who just didn't have a chance because the prosecution was bogus or corrupt in some situations, as you see in a lot of the innocence cases.

And just felt that the people who need the most help are criminal defendants.

And that kind of became my mantra from there.

I never wanted to be the high-dollar criminal defense attorney who charged tens of 20 of $30,000 for a case.

They just morally didn't sit well with me.

Not that there's anything wrong with those individuals.

I just felt that my talents could be best served through the individuals who are indigent who need help more.

And so that's what I've been doing.

And that's probably what I will be doing for the rest of my life.

Cool, Kevin.

So, hey, Kevin, so how did you find out about the podcast anyways?

You know, I was scrolling through iTunes because I am a podcast listener.

So I was scrolling through and it was attached to one of those shows you may also like and kind of looked at it.

Obviously, from the title, I was interested as a defense attorney, kind of saw the detailed summaries of some of the episodes and immediately thought that this is going to be something I was interested in.

And I mean, so how do you think about the podcast?

It's refreshing to see this side talked about because nobody ever hears about the bogus cases that get charged that get acquitted, which real justice is actually done.

You know, the only thing the media wants to talk about is sensationalizing the idea of somebody pleading not guilty at arrangements and, you know, the nerve of that person not to just immediately plead guilty.

And the only one wants to talk about big cases in which people are convicted and even podcasts, you know, they're centered around catching murderers and things like that.

And it seems to be the flavor of the day for a lot of podcasts.

But nobody ever talks about the little guy who got charged with a bogus crime and is acquitted rightfully.

Nobody ever talks about that.

No, I know.

I like how it just shows like how common it is to like people think, oh, my God, how, you know,

Oh, this guy got let out of jail for or got out of prison for 20 years.

He was exonerated by DNA.

But that's just one instance.

You know, that's just a mistake.

You know, and people don't realize how the system is set up to like incarcerate innocent people all the time.

So and one of the things I immediately stuck out to me about podcast is I hear stories between you and some of the other guests and say, well, that happens to you guys, too.

That's that happens with us all the time.

And then I've met other criminal defense attorneys through Twitter and heard some stories just, you know, through blogs or whatever.

And just seeing that everybody seems to have the same problems and the same client interactions and the same everything across the country.

I guess it's kind of reassuring that I'm going through the same thing, that I'm not just kind of on an island and some of the stuff I have.

But it's also it sucks because that means everybody across the country is having the same problems, getting charged with bogus things and in cases that never should have been brought and having to go to trial, having to risk your freedom, having to put that on the line just to vindicate, vindicate yourself.

It's it's it's it sucks, but it's good that there's somebody highlighting that.

Great.

Well, thank you for your service and thanks for reaching out to us on the podcast, emailing us, going to the Web site and submitting your your story.

Yes, we're happy to hear from Ohio.

We're happy to hear from you, Kevin.

And thank you for being on the show today.

Appreciate it.

Thank you for having me.

I really appreciate it.

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.