Groper's Got a Gun – When the State Brings More Drama Than Proof

What's up another Not Guilty world? I'm on vacation right now. But we're still putting up Not Guilties. We're still putting up episodes because the wheels of mass incarceration keep on turning and we public defenders, we defense attorneys, we attorneys fighting the man, fighting the system on a daily basis are still getting it done, still reporting from the trenches. That's what we are doing. So we still want to put up another episode in tribute to all the hard work out there that's getting done. And that's about it.

So I'm on vacation. Aloha. Don't worry. Here's your episode. There will be another one in two weeks. I want to say thank you to everybody for listening. Thank you for my editors for editing. Thank you for the Patreon people for donating. And if I didn't say your name this time, I will say it next time. All right. Mahalo.

I said a few things that were incorrect. So I impeached him on a few things. At one point, he tried to wiggle. No, I asked at one point, you know, this was one of your first investigations in this type of case, right? I don't know about that. I had done others. I was like, Oh, great. Cool. Now I get to impeach you with the video of you telling them that this is your first time. Like, let's do this. Great.

Great. Um, that sounds fun. So, you know, I played the body cam of him, you know, telling these guys, I'm sorry. I have to keep calling my supervisor to like figure out what I'm supposed to be doing. Cause this is my first time doing a case like this. I was like, all right, really? All right, cool. Let's go there.

Welcome to another not guilty. I'm David Moore here along with my fellow public defenders presenting to you, the untold stories of the criminal justice system objection that assumes there's justice in the system, which there ain't prefer calling it the American criminal system. These stories are about the not guilty as public defenders get on a daily basis in an unjust criminal system with the deck stacked against us.

Another not guilty. And welcome back everybody to another not guilty. It's your boy, David D here bringing you the freshest not guilties across these United States of ours. We got not guilties on the East coast, not guilties on the West, up in the North, in the South, and in the Midwest, all the way from Wisconsin. But before we get there, I want to introduce our lovely.

A and G favorite cohost Lauren today, Lauren, how are you doing?

I'm good. Thanks. It's my kid's birthday today. So it's a big day in the house.

Wow. Wow. Okay. So, so if a clown runs by in the background, we know why or just ignore it.

Okay. That's just normal around here. Birthday or not justice first, honey, right?

Yes. Right on. Right on. Well, good. Glad to have you here, Lauren. Let's go ahead and introduce our guests today.

We have two Wisconsin public defenders. We have Kevin and Anna. Anna and Kevin, how are you guys doing today?

Good. Doing great. Excited to be here.

Yeah, we're doing great.

All right. All right. You guys kicking butt over there in Wisconsin?

Yeah.

You guys are holding down, keeping the people to their burden, making those judges be honest.

Sometimes?

Sometimes.

Sometimes. Sometimes.

Depends on the day.

All right. But we got Kevin and Anna today.

They just came off fresh off of not guilty over there.

They want to share their case with us, with the A and G audience.

So take us away, Kevin. Tell us about this case. What were the charges?

Sure. So the charges were a possession of a firearm by a felon, armed robbery, even though it was kind of a weird armed robbery, intentionally point a firearm at a person, and then a theft of property, special fax.

In this case, the special fax was with theft of a gun, which turns in Wisconsin a misdemeanor theft into a felony theft.

So the biggest one, though, was the armed robbery. Client was looking at around about 40 years for that charge alone.

So clients charged with armed robbery and then stealing a gun.

Yep.

Which is a theft elevated to a felony. And what was the other charges?

The felony in possession of a firearm and intentionally point a firearm at a person.

Oh, okay, okay, okay. And what is your client? Do we have a name for him? Are we calling him something today?

Why don't we call him Zach Johnson?

Zach Johnson. Okay.

And how much time was Zach Johnson facing?

So all told, all right, so let's see, that's 40 there. That's a little over 50 years.

Okay.

No big deal.

No big deal. No big deal.

Yeah.

And how old is your client?

So our client was, he's about 40, a little over.

So life at this point.

Correct. Functional rest of his life if he were to get every second that was available.

Let's get an idea. Who wants to tell us, what did the police say he did?

What did the police report say? What were the prosecution facts?

How did he allegedly try to rob somebody at gunpoint and all that? Who wants to share that?

I can share it.

Okay. So guys, give us the prosecution version. What did your client do?

The allegation was that our client went over to his girlfriend's best friend's house, spoke

to her husband, reached under his couch, grabbed his gun, pointed it at his kid, told his kid to shut the fuck up.

Don't tell anybody that I'm taking this gun, and then ran out of the house.

And then when you say his kids, you're referring to the kid, the wife's.

Best friend's.

Friends.

Husband's kids.

How old was the kid?

Go ahead.

So the kid was like 20-ish, 1920-ish.

Oh!

I was picturing like a little...

He's a teenager.

Like a five-year-old playing with his toy trucks on the floor.

Okay.

And this guy was like a big, like a big 19-year-old too, right?

Like if he wanted to just like put me in a headlock and knock me out, like no problem.

Was your client also big?

Um, no.

Very small.

Not very small, but smaller.

That's the need for the firearm.

Um.

Eh.

Mm.

Um.

But to make matters worse, the girlfriend's best friend's husband is, has the same name

as the girlfriend's husband, or sorry, the girlfriend's best friend's husband's son.

So they're the exact same name.

So they're senior and junior.

Okay.

And then also in the house is their daughter and some unknown amount of people that are

just sort of milling about during some of the body cam footage.

And we like never got their names or figured out who they were.

And like, it was a really solid investigation.

Is this a trap house?

Uh, kind of had the feel to it of a trap house, but couldn't tell.

Um, and though the best friend, so the girlfriend's, um, uh, best friend who was the, the wife

of, um, senior, uh, she had unfortunately had a major sort of medical condition.

And so she was in the hospital.

Um, and that was allegedly why he came over was to talk to, uh, the husband about the fact

that the wife was in the hospital.

The clients with best friends, your client's wife's best friend or ex-wife, ex-wife, right?

So it's the client's then fiance slash girlfriend.

Her best friend, um, is in the hospital and it's, and it's her husband that was at the house.

Her husband is senior.

And that is the complaining witness.

Correct.

Her husband is senior.

And then there's junior, which is senior son and seniors daughter.

Okay.

It was.

Who's actually a grownup.

Correct.

It was incredibly confusing to get everybody straight.

And, uh, sometimes the DA would definitely refer to the wrong person at the wrong time.

It was just a gigantic mess.

And the whole trial, it was like the wife's fiance's best friend.

Who's not first.

Who's not second.

Um, like through the whole trial.

Okay.

Um, so then there's, we, we said there are clients then girlfriend, right?

Or then fiance.

Are they married now?

They're not married.

Yep.

They are.

Oh, okay.

Good.

Then fiance's like, Oh, well, they got married in the jail while the case was pending.

Oh, so many stories of romance on these podcasts.

This is nice.

Well, when the police came, cause you said there was a bunch of body worn video.

Um, was the client there or did he, he fled the scene, right?

Supposedly.

Okay.

Allegedly, our client, um, immediately walks out of the house, gets into a car and junior

follows him, not listening to the instruction to shut the fuck up, yells to his father who

allegedly had originally let our client into the house.

And then while they were sitting on this couch, gone out to go help a neighbor.

And that's when our client had reached for the gun, allegedly.

So junior follows him out, yells, Hey, he's got your, he's got your gun.

And then our client allegedly gets into a car senior grabs onto the car and starts being

dragged down the road as our client drives away.

Oh, whether that happened is questionable, but, uh, yeah, but that was the allegation.

And our client was nowhere to be found.

And when police arrive on scene, even though he is allegedly the, the wife's best friends,

significant other, they don't know his name and it takes them almost 45 minutes to figure

it out.

Calling people looking on social media, trying to figure out like what this dude's name is.

Um, that's kind of an interesting robbery.

So he took the gun and the force that he used was the gun that he took.

Correct.

Is that kind of interesting robbery right there?

So that's what they're calling the armed robbery.

They're technically it meets all of the elements, but you really have to shoe horn them in.

You got it.

That set of facts.

You got to squint at it really hard.

Like, so he didn't have any of his own weapons already.

The only use of the weapon is the weapon that he took from under the couch.

Yes.

That's right.

So we know he pointed the weapon.

According to the police, he pointed the weapon at junior.

So that's the charge you were talking about.

The assault, basically pointing the firearm at a person.

And that's the theft.

And then we're saying that the armed robbery is when he drove away with the gun.

It was the using the gun to steal the gun was the armed robbery.

To maintain possession of the gun.

He used fear.

A threat.

Uh huh.

A threat.

Pointed the gun in order to continue to maintain possession of the gun and leave the house.

Right.

Okay.

He wasn't at a safe, a safe place yet.

Yeah.

Like I said, you got to squint.

Okay.

You got to squint really hard at it.

And like kind of, kind of like live in it for a little bit.

You're like, okay, I kind of see it.

It's there.

It's there.

There were no charges for the dragging of senior down the street behind the car.

No.

Okay.

And frankly, because it was, it was super unbelievable.

Um, like super unbelievable.

Um, that just, yeah, I mean, we'll get to it in a minute, but he says he's dragged almost

a full city block or at least half a city block.

And there's nary a scratch on him, which just like doesn't track.

So they didn't, they didn't charge him with anything for the dragging.

Okay.

So Ana, you read the police report.

Wait, are you the one that talked about the defense with the case, uh, with the client?

Did you go over the facts with them or was it more Kevin who got it?

Like that was more Kevin.

Okay.

All right.

So Ana, you did the arraignment.

You pled your client, not guilty.

And you ship the case on down to that weird dude down the hallway who loves cases and charges

with high maxes, huh?

Sure did.

All right, Kevin.

So you get the case, you see the facts, you see the charges, and I assume you go meet the

client, right?

Yeah.

So he was in custody.

He was also being revoked because he was on supervision for a different armed robbery a

few years ago.

Bad fact.

So Ana was, um, my, my mentee.

So all first year attorneys, um, in our office get a mentoring attorney.

Um, so we had at this point done several trials together.

This was our third.

Um, and so we sort of had a routine down.

So we go and we meet, um, our client, uh, Mr. Johnson at the jail.

And right off the bat, he is, this did not happen.

I want a trial.

I want a speedy trial.

I want to do this like now.

And, uh, he, they are totally making this up because the, uh, senior groped my wife a

week earlier.

And so in order to head off allegations that he assaulted her, he's accusing me because

he knew I was on supervision.

And I don't believe that the gun ever even left the house, but I was nowhere near that

house.

I was in Milwaukee at the time and my fiance and my mother will confirm that.

Hey, that sounds pretty good.

I like that doable.

Right.

Um, senior doesn't know his name, but knows that he's on probation or parole already.

Yes.

Which sounded sketchy.

Right.

Yeah.

I always have that.

Like I, I trust you until you give me a reason not to trust you.

Right.

Approach.

So, um, luckily when we watched the body camera footage, it's true that they can't find his

name for forever.

But at one point the complaining witness senior tells the officer, yo, but he's in the system.

He's in the system, man.

You'll, you'll find him.

And our client hadn't seen that body camera footage.

Um, so when we talked to him, so, and, and we hadn't disclosed that to him when he told

us.

So it made sense.

Right.

I don't entirely know how that would work, but like I could, I could, I could see it.

Right.

And we could back it up with something on the body cam.

So question is your client saying that senior groped his wife while senior's wife was in

the hospital.

Correct.

Sure.

Oh, nice.

Okay.

This is spicy.

Spicy.

Yeah.

Um, that sounds lovely.

Yeah.

Yeah.

And he, he doesn't get any more sympathetic.

Um, so, uh, but at the time my wife is about five months pregnant.

Um, and so I tell him we can do a speedy trial, but, um, we, you kind of have two options,

right?

So we may go into labor at any point in which case, like you may have to get a continuance

if you stick with me as your attorney, or I will get you a rad different attorney who

will be ready to try this case.

I'll, I'll get them up to speed.

We'll do all the things.

We'll make sure that you can do this.

Cause in Wisconsin, you have two speedy trial rights, get the constitutional one.

And then there's a statutory speedy trite speedy trial, right?

Where you're guaranteed a trial within 90 days, or they have to release you on bond.

Um, so we were looking at 90 days from the time we demanded it, which was going to put

us right at like the eight month mark, um, for, um, our, our second daughter.

And, uh, I talked to our client and our client was like, no, no, no.

Do I've like asked around the jail about you and Anna, like, I know you guys like do good

shit.

So I'm gonna stick with you guys.

If it happens, it happens.

Like, I'm not worried about it.

So like, okay, cool.

Let's start investigating.

And we file the speedy trial demand and get trial dates.

Great.

Great.

Um, I love it.

And I love you guys already have a jail cred together too.

So that's cool.

You know?

All right.

So can you, uh, before we get into the defense investigation, can you, can you talk about

like just the state of the evidence?

Like what, like what, what is there?

I know you've mentioned some body worn video.

Is there a 911 call?

Like what's, what kind of evidence is out there?

Not much.

So there's not a whole lot.

Um, there's kind of one pretty bumbly cop that shows up at the scene.

He's a new guy.

He doesn't separate any witnesses.

He talks to them all at the same time.

And there's a bunch of people at the scene.

There's really one kind of chaotic video of all of the family members talking about this

incident.

Um, there are several people that are there whose names he doesn't get.

Uh, and then what about the appearance of the, of senior?

You know, he says he claims he was dragged in the car by a car.

So how did, how was he looking?

They don't make any note of his appearance to see if he had had any scratches on his feet,

any bruising.

Um, the police don't really note anything.

Um, they just kind of cased the neighborhood to see if anybody had witnessed him being dragged.

Um, and then they try to follow up on some neighborhood camera footage to see if they see our client's vehicle leave the scene and drive nearby.

Um, and they don't really find anything.

And they don't really find anything.

Going back to the appearance of senior for a second.

Through the whole thing, the guy's barefoot.

And he says he doesn't like shoes.

Oh, that would be big.

Right.

And, and so he says he's dragged by this car.

But like, I mean, dude looks pretty smitten for a guy who was just dragged half a city block with no shoes on.

With no shoes.

I mean, no scratches, no nothing.

And, and, and he's really just like focused on figuring out our client's name and telling the cops that it was our guy.

Um.

Do you have criminal histories on junior and senior?

Nothing.

They got no priors.

Um, which was a little surprising to me, but nothing.

Yeah.

Literally nothing.

Okay.

And allegedly when your client went over to the house, senior was not there, right?

No.

So seniors there.

So senior, senior greets them at the door.

Okay.

And they walk through a little front entryway that has like a bar area.

And then they hang a left.

As every front entryway does.

Especially in Wisconsin.

Especially in Wisconsin.

Gotta have the bar right when you walk in.

Right.

And then you.

Wisconsin's now on my travel list.

As it should be.

As it should be.

Uh, and, uh, you, you kind of hang a left into the living room.

And this is where you get like peak kind of trap house vibes.

Um, but you, you kind of walk in and there's the thing like the, the fabric draped across

the, the doorway.

And then there are two couches, um, sort of in an L.

So as you walk in, there's one right to your right, kind of run in the length of the

wall.

And then across the, the perpendicular wall, there's a second couch.

And according to senior, he walks in.

Junior is sitting on the perpendicular couch.

So across the room.

Senior sits down at the far end of the couch.

And our client sits at the near end of the couch to the door.

And all this became important because the gun was allegedly underneath the couch where senior

was sitting.

Uh, they kind of make small talk for a minute.

Then the neighbor comes in and says, Hey, I need some help.

Senior walks out, goes, helps the neighbor.

At this time, our client allegedly reaches under where senior had just been sitting, grabs

the gun, takes it out, points it at junior, says, shut the fuck up, leaves.

And then junior follows says, Hey, daddy's got your gun.

And the whole dragging thing occurs.

That's, that's the nutshell.

Your client had been there before, or was this his first time in the house?

So he had been there before.

Um, but it would later come out at trial that he never been in the room alone.

The gun was always concealed.

So you couldn't see it.

And my client had never been told about the gun.

Nobody had ever discussed the gun.

And so the state didn't really have any evidence showing that he even knew the gun was there.

Was the gun registered to senior?

Yes.

So was registered senior.

Um, but the, the bumbling cop who, who has to make multiple trips back and forth.

So he like, he'd served on side of sort of a podunk police force.

Um, and then he, you know, he got the job at the bigger agency and this was his first like armed robbery trial.

And so he comes up back and forth several times to the house because he keeps like calling a supervisor and be like, what the fuck do I do now?

And the supervisor is like, do this.

And then he like walks back up to the house and he's like, Oh, I got to ask this question now.

Um, and he still misses a bunch of stuff.

And, uh, at one point on the body cam, he even tells senior, he's like, I'm so sorry.

This is my first time doing one of these.

Like I kind of keep forgetting to do things, which was like super great for us.

Cause we were like, come on, man.

Oh yeah.

And so senior was just kind of like the next, like the next with the neighbor right there on the front yard or something like that.

When the client drives away and he jumps on the car.

Okay.

Okay.

Is this a large house?

It was pretty decent size.

I call it a single family, but like upstairs, downstairs.

Um, and you know, the, the only witness we haven't talked about is the daughter is upstairs.

And she alleges that she hears a commotion, looks out the window and sees our client heading towards the car.

She then run downstairs and watches the dragging is what she alleges.

All right.

So let's talk about how you started getting ready for the, for your defense.

You have, you have an alibi over there with the, with the mom and the, and the wife in Wisconsin.

And then you also have the, uh, the guys just making it up because he, uh, sexually assaulted my wife.

So where do we, where do we start with?

So for us, the big thing was one, I mean, the law enforcement just did such a bad job investigating this.

Um, but we wanted to, to get junior and senior, you know, supplemental statements, try to develop as many inconsistencies as possible.

Right.

Cause we knew it was all going to come down to their credibility.

So get an investigator on the case and he goes and talks to our client's fiance, his mother and his sister, all of whom said he was in Milwaukee.

Um, try to find some receipts or something to show that he was in Milwaukee.

And then we also try to contact junior and senior, but they don't want anything to do with us.

Um, how far away is Milwaukee from where the incident took place?

About an hour and 20 minutes.

Can you share what city?

Yeah, it was Janesville, Wisconsin.

Um, okay.

So it's a significant enough distance.

It is.

Yeah.

Okay.

And Janesville is a city of about, uh, was it 70,000?

The, so.

Well, the allegation was in Beloit.

Oh, I'm sorry.

You're right.

Wisconsin.

Sorry.

Our client lived in Janesville.

The, the incident allegedly occurred in Beloit.

Okay.

So he's over an hour away by his statement from where the location of this incident occurred.

Yep.

Okay.

And did he say what he was doing in Milwaukee?

Visiting his mother.

He had a good job at a sort of a, uh, sanitation plant thing.

Um, and he'd been laid off cause they had some bad like test result things.

And, um, his fiance could kind of pick her hours.

So they would periodically go to Milwaukee and spend time with his mom and hang around in

his old neighborhood.

Cause he was originally from Milwaukee and all this, uh, most of his family still lived

there.

He was living in Janesville at the time with his now wife, then a fiance.

That's why you got it.

You had your investigator get a statement from his mom so that she could be his alibi witness.

Yep.

Okay.

Got it.

And so, and, and you did interview her and she did confirm that he was, he was there.

Yes.

And his mom is just cute as a button.

One of those, you know, uh, like more senior individuals that was just an absolute hoot,

like testified.

Great.

All the jurors just loved her.

She was, uh, she was a really good witness for us.

Um, she works with special needs children.

Yeah.

Oh, that's a gem.

Did you work that in with the jury?

Oh yeah.

Beautiful.

And the, and the DA, you know, we'll, we'll get to this in a little bit, but he did not

help himself because he tried to impeach her timeline by asking about like when she got

done with school.

And so she kept getting to like work in there.

Like, well, I hope the special needs children get on the bus.

And sometimes it takes a while.

Cause I got all these problems and like, they take a little extra love and care.

And he's like, but that's three 15.

Well, yes.

But sometimes when you're working with special needs kids, it'll take a little longer.

And I'm just like not helping himself.

Like she just got like more and more lovable as the testimony went on.

Like impeachment did not help him.

Um, how did your client get arrested?

Turn himself in.

Turn himself in.

Like the next day or how, why did he, why did he turn himself in?

How did he find out about it?

So he found out there was all this talk about him.

It's kind of, Beloit is kind of a small community.

Um, especially for the black community in Beloit.

Um, it's pretty segregated.

It's a small city of about 10,000 people.

Um, and it's pretty segregated.

So people tend to live in, um, pretty clustered neighborhoods.

Um, and so if there's talk about town, there is talk about town.

Um, and so our clients now wife, um, heard that there was a high speed chase.

That her car was involved in.

Um, that was how this story had metastasized, I guess, um, in the community.

And so she gets a call from her daughter, um, that her car had been involved in this chase.

Like, Hey mom, something's going on.

She's like, we're in Milwaukee.

We don't know what the deal is.

And our client gets a call from his probation officer saying, Hey, there's a warrant out for you.

You need to turn yourself in.

Um, and so when they eventually get back in town, he does dress that.

Well, but where we left off the senior and junior didn't know your client's name.

So how did they end up identifying your client to have a warrant?

Essentially through his Facebook page.

They find his, his then fiance's Facebook, um, through her best friends.

Right.

They, um, and then they find him and, and, uh, his fiance's friend.

Is the woman in the hospital in a coma?

Yes.

This is in my head.

She's in a coma.

Your head is correct.

She really is in a coma this whole time.

Um, and for like months, like at the time of trial, she was still in a coma.

Um, and this whole thing is playing out while this poor woman's in a coma.

Um, but the, the identifying our client happens in real time on the body cam.

Cause they're talking to this bumbling cop who was just, you know, piecemeal getting statements

as they're cruising Facebook and then calling people and being like, okay, you know, it's

her Facebook.

There's this guy.

Okay.

Well, I'll call her daughter and see what the guy's name is.

And then they eventually find out his name.

Um, and his name is passed along to, because law enforcement now have it.

They contact his probation agent.

His probation agent reaches out, puts a hold on him.

And he doesn't come back from Milwaukee right away.

Takes about two weeks and then he turns himself in.

I thought he was in Milwaukee with his wife, but she, or a girlfriend, but she's in a coma

in Milwaukee.

Oh no.

That's senior's wife.

Senior's wife.

Senior's wife.

Senior's wife was in a coma.

Okay.

I'm sorry.

He had had a brain aneurysm.

Okay.

Okay.

Oh God.

You're now experiencing what the, the whiplash jurors were getting through this whole

trial.

It was like, whose wife?

All right.

So senior's wife's in a coma.

All right.

Okay.

All right.

That's right.

And that's what, and that's when senior sexually assaulted the client's wife.

Senior's feeling lonely.

Okay.

So you, so you interviewed the mother, special needs.

Boom.

Good.

You interviewed the client's wife, right?

Yep.

Did she confirm Milwaukee also?

Absolutely.

Down to a T.

The only problem is she can't get us any receipts or anything.

So we don't have any receipts.

We don't have sort of tangible things to put them in Milwaukee.

It's just their testimony.

Maybe we should give our client's wife a pseudonym too.

So it's less confusing.

Sure.

Uh, yeah.

So Kelly.

Uh, so yeah, Kelly, we'll call her Kelly.

So Zach and Kelly.

All right.

So that's the alibi you have under control here.

Now let's, let's talk about the sexual assault part by the, by senior.

Are you guys working on that or trying to develop that part of the defense?

Yeah.

And, uh, so that was all done through Kelly.

Um, cause unfortunately Kelly had not reported that to police yet.

So we didn't have a police report.

Um, what we had was her testimony and she said she was alone with senior when it happened.

Um, so we get, she had gone over to ask about how the wife was doing.

Um, because, uh, this was slightly, slightly after, uh, everyone was learning about the

wife being in a coma.

So she says she goes over, uh, to talk to a senior about the condition of his wife.

They make small talk for a little bit, and then he grabs her, um, touches her inappropriately

as she's there.

She leaves quite abruptly and for the next week is trying to decide and talking with family

about whether or not she's going to report him or if she's just going to let it go.

Cause he's been through a traumatic experience and he's just grieving.

And she was going to kind of give him a break on this.

Um, and then this whole thing spills out.

What do you think Lauren?

I think that on our, our next sexual assault case, we should, we should try for the defensive.

Oh, well, he was just grieving.

It's fine.

I also think maybe she felt like she had to go in person to talk to him.

Cause apparently their phones weren't working.

They can only use wifi.

I think it's a little strange.

Very strange.

I'll tell you straight up.

The jury does not end up believing our alibi at all.

Okay.

Spoiler alert.

Wow.

So, so her, her, the friends, best friend's in the coma.

So she has to go to the house and talk and see how senior is doing.

But there's a lot of people at it's trap house.

So there's a lot of people there anyways.

Um, and she gets, I guess, groped somewhere.

Right.

I mean, like, do we talk, do we want to get into specifics of how he groped her or no?

Is that just, we just want to leave it there.

We don't really know the specifics.

She was, she never told us.

She was quite guarded about it.

That doesn't help it be more believable.

Nope.

How long had she known these people?

A long time.

A long time.

So she had known them for a long, long time.

So, um, Kelly and senior and senior's wife had gone back a long, long time.

Zach was recent within the last year.

Um, they had started dating and then got engaged, um, within a year.

And when you say they had gone back, had they been in a relationship?

Uh, no.

Kelly and senior?

No.

Cause she knew the wife first.

Um.

Well, that's not necessarily a.

Fair.

A disqualifying factor.

My understanding is no.

Although again, who knows?

Okay.

Small town.

Small town.

A lot of shit happens in a small town.

Small dating pool.

Small dating pool.

Okay.

So you just, you just have her statement.

That's it for the, uh, groping, right?

It's just her statement.

Okay.

Um, all right.

So then any, uh, any other defense work or prep that you guys did then?

I don't think so.

I think that was about it.

So it was, uh, some witness statements, uh, attempting to contact, um, the senior and

junior that don't want to talk to us.

Um, and then just prepping, um, our witnesses to testify.

Okay.

All right.

I mean, it's, it's a big case, 50 years.

Yeah, I'm sure.

I mean, I know it's a lot more hours go into it than what we're talking about, but really,

you just like interviewed three witnesses, right?

The mom, uh, Kelly, and that's it.

Just two witnesses.

Yeah.

Okay.

Yeah.

Two witnesses.

Video.

Video.

And the part of the problem was there were so little, uh, recovered by police.

It was such a poor investigation.

Um, when they did the, the, um, community, um, uh, sort of survey when they, you know,

they went around and talked to all the neighbors, all that stuff.

Um, they don't get any names that they really don't talk to anybody.

They don't take anything down.

Um, a lot of that wasn't on body cam.

Um, but, um, and below it is like, and I was saying earlier, very segregated.

It's about 40,000 black populations, about 10,000.

Um, and it's, it, they're not very law enforcement friendly.

So they don't want anything to do with law enforcement.

Um, and to begin with.

Yeah.

Oh, all about it.

Law enforcement also just didn't do anything.

Um, they didn't care and there wasn't much to, to, to follow up on.

Uh, we tried the cell phone route.

That was a dead end.

Um, we spent a lot of time trying to find like credit card receipts, um, any sort of

physical evidence that they were in Milwaukee to back up and nothing.

And again, we kept running into dead ends.

Like, oh, we were using a cash app that we can't log into.

And, oh, we use cash for this.

And we were running into some.

Very convenient.

Yeah.

Some dead ends with, um, our favorable witnesses.

So.

And I'm assuming they never recovered the firearm that was allegedly stolen.

Correct.

Firearm never recovered.

Your client's charged with these charges, but he's also facing a parole revocation

revocation or felony probation revocation.

Right.

For, for picking up the new case.

And, uh, as before we, uh, we get to any types of hearings.

Was there any like matters or discussions to, to resolve the case, settle the case?

Did the judge offer something because he was on parole or anything like that?

So our client's very clear from the beginning.

We're trial.

We're trial, trial oriented.

The only thing that will make him change his mind is if he gets revoked, then he was willing

to offer concurrent time.

So everything sort of hinged on at first how the revocation hearing went.

Um, so we went and had the revocation hearing, um, before there was any discussion of offers

and the state did not offer anything during that time period either.

Okay.

And just so the audience is clear though.

I mean, uh, when people get pick up new cases around probation or parole, at least, I mean,

well, the pros did a different beast in California, at least, but they're on probation and sometimes, uh,

prosecutors and judges will do probation revocation hearings to see if they violated their probation,

which the burden of proof is substantially less.

So it takes less evidence to say they violated their probation.

And then once the judge finds them in violation of the probation for any small piece of evidence,

no matter how big of your defense is, they always find them in violation.

That violation now subjects them to additional custody time, jail time, multiple,

potentially multiple years in prison.

And then they turn to decline.

They say, or the defendant.

Now they say, well, now that you're going to go to prison for three years on the revocation,

you want to just plead to the open case.

Now, anyways, just to get it all resolved.

That way you don't have a right.

That way we don't have to do your fucking jury trial because you're going to prison anyways.

So strong arming different.

Yeah.

Um, we essentially have an administrative division of hearings and appeals, um,

where we do, um, essentially like a contested hearing against the department of corrections.

So we will represent our client against their probation officer or, um,

Great.

I like that.

A role officer.

Yeah.

Essentially.

Um, in front of an administrative law judge.

Um, and their fate really rests in the hands of how good is their administrative law judge.

And there is a very wide range in these administrative law judges.

There are about five or six of them.

Um, the one that we had for this hearing is kind of right in the middle.

So, um, you know, trending toward one of the worst ones.

He's a former prosecutor.

Um, he doesn't revoke all the time, but he's not the greatest at determining, determining whether

or not a witness is credible.

Um, and so essentially you'll have a hearing where they determine two things.

Um, have the alleged violations occurred.

Um, that's the first part.

They'll list a bunch of alleged violations.

Um, and having found whether or not the violations occurred, then they have a legal analysis that

they have to undertake, um, to determine whether or not revocation is appropriate based on whether

or not those violations occurred.

Um, and so it's really individualized based on that person's situation.

And is your client's only alleged violation in this new case?

Yeah.

In this case, yes.

That's correct.

With the added violation of didn't report for two weeks.

Um, but, uh, up until that point, even the agent agreed that our client supervision had

been going really well.

She described it as an, an aberration.

It was, uh, out of, out of character.

So that was good.

For the client or in her experience, geez.

Yeah, no, it was an aberration for the client to, to have done something wrong.

Cause he was up until this point doing quite well.

Oh, I thought you meant that he was doing well.

I was like, wow, that's, that's a way to come in.

That's a way for the probation officer to come in swinging.

So let's talk about this, uh, revocation hearing then.

How did it go?

So it's sort of like a little preview of what the jury trial would be.

Cause these same witnesses that would testify in the trial are testifying the revocation

hearing, right?

Yeah.

Yeah.

So, um, at this point we've kind of divided up the witnesses.

Um, so I'm going to do, uh, senior and then, uh, Anna did junior and the daughter.

And then I did, um, the directs of mom and, um, fiance Kelly.

And, uh, I also did the investigating officer and we're riding this line because we want to

win the revocation hearing, but we don't want to like give away the whole ball game before

trial.

Um, so, um, we're fighting really hard on the revocation hearing.

Um, but there are a few things that were also being a little cagey about, but it starts off

with, uh, senior and senior goes with me on cross.

He's, he doesn't try to fight me really much at all.

Yes.

No, yes, no, yes, no.

All the way through and agrees.

I have a diet.

I, you know, take screenshots from the body cam footage and illustrate how the gun wouldn't

have been visible at any, from any point in the room.

And he agrees.

And, uh, he agrees that, um, he didn't know the client's name and that he barely knew him

and things like this.

And, and it all comes in the way we would want officer likewise comes off as extraordinarily

bumbling.

Um, no physical evidence doesn't follow up on any leads.

Uh, there was an allegation that there was some, um, footage from a different parking

lot that may have caught the, the, the incident, uh, like our client allegedly fleeing doesn't

follow up on that.

Doesn't follow up talking to the neighbor.

Doesn't get any names.

Doesn't investigate where the gun might be.

Um, doesn't do much of anything other than just take these witnesses statement and then

be like, all right, it sounds like armed robbery to me.

Refer it for charges.

If I'm understanding you made a strategic call to not ask senior questions like about the

sexual assault.

Oh, sorry.

You didn't want to give away your defense.

The sexual assault we did ask about.

Yep.

Uh, to see what he would do.

Yep.

Um, he said, he said never happened.

Never happened.

Um, and so, you know, that was fine.

That's what we expected him to say.

So we were going to rely on the testimony of the fiance.

Not only did he say it never happened.

He said it never happened in a way that was so dismissive that it made it seem like it

did happen.

I was kind of like, oh, jury's out on this groping allegation from my standpoint.

But then we, he brought it up.

Kevin wasn't actually going to ask about it.

And then he brought it up.

Yep.

Um, when we got to the revocation hearing and he, he was like, and I hear there's these

sexual assault allegations out there.

What, what's that about?

Come on.

The best, uh, defense is a strong offense, right?

Hey, and the best part was the look, right?

So you've got a probation agent that's doing these and you know, they, they don't know what

they're doing.

Right.

They just kind of asked these like very generic questions and the look on this probation agent's

face when senior starts going about, yeah, she accused me of sexually assaulting her.

And like, come on, what's up with that?

And the agents like, what the fuck, man?

I didn't ask you to talk about any of this.

Will you just shut up already?

Um, and you know, then, you know, he's opened the door.

So I'm like, great.

I'll walk through that.

Like, you know, start asking him questions about it.

Um, trying to get him locked in.

Right.

So that if he says anything different, um, at trial.

Now we've got him locked in on one version and we can impeach him later.

I don't think anyone other than turns out the administrative law judge thought he was credible.

Just the way he talked about it.

Um, and the fact that he had almost no details and how exactly things happened changed each time.

He, you know, talked about a certain detail.

He did not come off as super credible and it didn't really match what the officer was saying.

And he had a few details that were just plain wrong about like, he said, the license plate was a Wisconsin light or an Illinois license plate.

When our client has a Wisconsin license plate.

And, um, the things about, he said he was being dragged, but there's, you know, no injuries whatsoever to him.

It just didn't seem to me to be at all credible.

All right.

So then, uh, so how did the judge rule for the revocation hearing?

Wah.

Wah.

Wah.

Violation, huh?

Violation.

Violation.

Um, and weirdly finds our witnesses credible, but also their witnesses credible and tie goes to the state, I guess.

Um.

Oh, that's not how that's supposed to go.

No, it was, it was super, not, not, not kosher.

Super, not kosher.

I mean, I, I get it's preponderance, but come on guys.

And our client was thrilled with how the revocation went.

He was very happy with how it went and he, and we were all kind of stunned when we read the decision.

Despite losing.

Yeah.

What did you like about it?

What was he excited about?

So he thought the testimony, he agreed with us.

So the way the decisions work is we don't get a decision right away.

We get a decision weeks later.

So right after the hearing, he agreed with us.

He's like, man, they came off a super not credible.

Like none of that made sense.

We're, we're, we so got this in the bag and Anna and I were like, Oh, wait a second.

Like, you know, it's a revocation hearing.

So like, yeah, we think it went well, but like hang out for it.

Like hold that.

Um, and sure enough, uh, he did end up revoking.

He did end up revoking and like, not a little bit either.

Um, he, he revoked him for, for several years.

Back to prison.

Three years.

Again, a bit of a spoiler alert, even though it's another not guilty.

Right.

So we know it ends in a not guilty.

Um, but even though he's found not guilty at trial, um, he is revoked.

And so the bittersweet part is, even though we end up beating the criminal case, he still

goes to prison and we are currently still litigating to get him out of prison, um, by

filing, um, a writ of cert with, it's essentially a, a, a civil action saying that the department

screwed up, please release him.

Department screwed up because of what?

They have to have a sufficient, essentially there, there are four different, um, things

you can reverse for.

Um, one of them is there wasn't sufficient reliable evidence upon which the, the administrative

law judge could base their decision.

And so we're arguing that there wasn't sufficient reliable evidence.

It just wasn't reliable.

There wasn't enough there.

Therefore it was arbitrary and capricious and, uh, it should be reversed.

I mean, the fact that he said that he can't, he doesn't know it's 50 50 sounds like it's

unreliable evidence that sent this guy to prison.

So then, all right.

So you lose the revocation hearing.

You get sentenced to three years and what, but your client is ecstatic because the witnesses,

witnesses and testimony went well for the defense.

So what happens next?

Yeah.

So this is where the, like the things you kind of get chopped up.

So we have the revocation hearing clients ecstatic with how it went and, uh, we're getting

ready for trial.

And then I have to pause everything.

Cause we're going to the hospital to have, um, our daughter.

Um, my wife is actively laboring.

I'm, I'm writing the final argument for the revocation because you, we submitted our final

like argument in writing and your wife didn't kill you.

No, no, she was fine.

Cause actually it meant I wasn't like staring at the heart monitor, like stressing her out.

So she was like, actually go back to your laptop.

You're better over there.

Um, so, uh, so, you know, we were at this weird moment where the trial gets taken off because

I'm in, I'm in the hospital with my wife, but the revocation hearing, we still have to submit

our, our closing argument.

So I'm writing that from the hospital room.

And then we have our daughter, um, on April 1st.

Um, and they rescheduled the trial for early May, um, after my very short paternity leave.

Um, so I take paternity leave, get back.

We've got one week and then back to trial.

And was the girlfriend or the best friend that was in a coma, was she like in the next room

over or at the hospital or different hospitals, different hospitals.

Uh, but, uh, yeah, well, yeah, so, uh, we were at, so both pounds, Jamesville and Beloit

are just south of Madison, Wisconsin.

Um, so we were in Madison.

So, okay.

Okay.

All right.

So the case, the trial is delayed.

Cause you had your daughter.

Congratulations on your second daughter.

That's great news.

I'm glad she's healthy.

I'm glad she's healthy.

Is it Kelly?

Name is not Kelly.

Definitely not.

But so now you're back and we're ready to do the trial, correct?

Yep.

And we have a little bit of pretrial litigation because, uh, we have of course moved to get

in the bias evidence, right?

That he's lying because of this sexual assault.

Um, and we think it should pretty clearly come in.

Um, the judge, uh, agrees with us and doesn't agree with us.

So he, he says, yes, it comes in as bias evidence, but he doesn't want us to give any particulars.

So we just get to say that there was an incident.

Great.

Which was actually great for us.

Yeah.

Right.

Cause now it's like, oh my God, what was just inappropriate touching might be like this

forcible sexual assault.

Like great.

Even better.

It's like up to the jury's imagination.

Yeah.

Judge.

We don't have the details either.

She just says she was assaulted.

We don't know how.

Let's just, let's just keep it at that.

Okay.

That's it.

That's all we need.

Um, and the judge was like, you can't say it was sexual.

You can just say there was an incident.

We're like, great.

That's fine.

Like the jury's of course going to go there.

Right.

Like fine.

Incident, you know?

Yeah.

Incident, wink, wink.

Right.

So if I come back with, with coffee and I say, Hey honey, I had an incident with the

barista.

She, I mean, you know, like just kind of, you know, that barista.

Anyway.

Yeah.

She knows exactly what happens.

What happened.

So it was like the, the, the best loss possible, right?

Like, uh, we wanted to get into the specifics and the judge gives us something better.

Um, so we were fine with it.

How did that work exactly?

So she's on the stand and you say, uh, isn't it true that you just literally say there's

an incident that you had a negative encounter with senior.

That's exactly it.

And then, you know, I, I, I asked about that better.

So, right.

I, I get, I, I got to then ask, well, how did it affect you?

How did you feel?

Did you talk about, did you think about going to the police afterwards?

Yes.

Why didn't you go to police?

Well, because his wife was in the hospital and all this stuff.

And so I think when we asked, there was an incident, you thought about going to police,

but didn't.

Right.

Everybody was like, Oh, okay.

Yeah.

What happened there.

It's almost like he doesn't want, he doesn't want to litigate that.

He probably doesn't want to have a trial over whether an incident happened or not.

Like, right.

Let's just did not want to have a trial period.

He doesn't have any trial.

Um, he doesn't want to be taking criminal cases.

This was his first criminal trial.

Um, he was upset to be there.

He wasn't happy about it.

Every time we had an evidentiary objection, he just kind of sighed.

Just not, not thrilled to be there.

And he would roll his eyes something fierce every time.

Uh, um, cool.

So then what about the prosecutor?

What's the prosecutor?

That's like, that's going, that you guys go to trial with.

I don't have a lot of nice words.

Um, he is, uh, let's hear all the bad ones.

Then he, uh, all right.

So, so this is someone who should not be doing criminal law.

Just like at all.

Um, he, he, I think would did like insurance defense for a while and then was a private,

like a sole practitioner and then started late in life like a year ago to, uh, try his

hand at prosecution.

And he really doesn't know what he's doing.

Um, he's bad at it.

He's very bad.

He's very boring, exceptionally boring, um, and exceptionally rude.

So like at one point, after we find out that we've lost the revocation over my paternity

leave, and then we're at final pretrial, our client says, go to him with a concurrent offer,

offer him three years prison concurrent.

Uh, and we say, fine, not a big deal.

He literally laughs at me.

I say, how about three years concurrent?

And he just laughs at me and walks away.

Um, doesn't even like say no, just walks, just laughs and walks away.

Um, and was exceptionally confident in his very, very bad case.

Um, and to be clear, his colleagues think he's a moron for this too.

I believe they described him as having eaten shit on this trial.

At least you got to be the ones to serve it up.

That must've felt nice.

Uh, and I've, I've sort of described this guy as sour vanilla ice cream.

So he has no personality whatsoever.

He's just vanilla ice cream that has gone sour and just leaves a bad taste in your mouth.

It's not, it's not a good experience to litigate a case with him at all.

That is the best G rated burn I've ever heard.

Uh, okay, cool.

So then, uh, we're done with the pre-trial motions.

Uh, and I guess it's time for jury selection, but actually tell us about your client.

How's he been up throughout this whole time?

It's, it's been about three months, three or four months.

What's that whole, you know, relationship been like?

Well, he got married, David, so.

Yeah.

He did.

He's happy because he got married.

Um, and he also is just like an absolute gem, um, through the whole thing.

Uh, you know, he's, he, uh, he's very confident that he didn't do this and that's, that's going to, you know, carry the day, which of course makes you even more nervous.

Right.

Um, but, uh, in terms of like working with him day to day, he was always incredibly, um, uh, good to work with.

He, he was very positive with us.

He was nice to talk to.

You could have a conversation about anything with him, uh, was, um, very trusting sort of from the get go.

Um, I know you guys are doing everything you can.

I know you're going to do a good, good job.

Um, we, when we talked to him about whether he or not, he wants to testify.

He's like, nah, man, no, you guys, you guys got it.

You don't need me to get in the way.

I'm just going to make things worse.

It's gone.

I'm going to make it all about me.

Like it, it shouldn't be all about me.

They, they can't prove their case.

And our alibi witnesses are better than me anyway.

So like, I don't have any attention of testifying.

Um, not that I, his better, his better half is going to testify.

Yeah, exactly.

Exactly.

The better half throughout the husband line.

Yeah.

And his mother and his mom, I mean, like, in fairness, his mom was a, was top notch.

Um, so yeah, no, he was great.

Really, really great the whole time.

Um, and to this day, uh, really fantastic.

Um, even though a major injustice was done in terms of the revocation and being revoked

on something that, uh, he should not have been revoked on.

He's, he's been nothing but, um, nothing but great the whole time.

He really, really solid dude.

All right.

Well, let's, let's get ready for trial.

Then Ana, are we, are we ready for trial as a defense ready?

I mean, you got lead counsel.

They're not probably not getting a lot of sleep right now.

The new baby.

Yeah.

No, uh, he was not sleep.

And you're gonna, you gotta carry it.

You gotta carry the team.

You know, one week old baby.

We did go though.

Yeah.

Right on.

That's crazy.

That's crazy.

Um, all right.

So let's talk about this.

Tell us about jury selection.

So I did voir deer.

How big of a panel.

So, uh, they bring in, I think was 45, 45 people.

Um, and we get, um, we get the list of Friday before, which is now.

I mean, I wish we got a week before, but we get a couple of days before.

Um, so over the weekend, um, you know, we're looking at everybody's Facebook profiles

and, um, doing all the research we can finding who's got criminal records, all that good stuff.

Do all our background research.

Um, and we have it all in a big spreadsheet when we show up Monday morning.

Um, and then, um, yeah, it's, it's nice.

We get our lips as they're walking in.

Yeah.

We get them ahead of time.

Um, which makes it so much easier to feel like you've armed yourself a little bit.

So we know right off the bat, like we can't have like the six people.

Um, how's your panel looking, uh, rates wise, because you said, I, I didn't ask.

I'm assuming your client is black.

Correct.

And, and senior and junior are also black.

Correct.

Okay.

And your panel rates wise is looking.

Not bad for the county.

So again.

Uh, so still not great for your client.

Yeah.

Uh, Wisconsin is an exceptionally, um, segregated state.

Well, it is exceptionally segregated.

Our disparities are incredible.

We're near, near the bottom 49th or 50th in terms of racial disparities in our prison system.

Uh, we are far worse than even California and New York.

It is, it is very bad and it, and it's very stark in Rock County.

Um, and so we typically have, um, black and brown defendants with all white juries.

Um, and, um, it's except exceptionally disheartening.

Um, but this time we had several folks of color, um, on the panel who actually made it onto the jury.

Um, which, um, was, is somewhat rare for us.

Overall, we felt kind of okay about the panel.

I'm, I'm very much a deselection kind of person.

So I'm looking for all the folks that just can't come with us on this journey.

Um, so we're going to make sure you get off, off this train.

Right.

Um, uh, can you tell us about your question?

Like how do you, like how do you question or how do you deselect your jurors?

Like what was your approach?

Yeah.

So we always start, or I start with the worst juror profile, right?

Like what moral beliefs are totally in opposite to our, um, version of events.

Right.

So obviously the first one, right.

Got to get all the people who are racist that we can identify off this jury.

Right.

So a voir dire on race.

Um, and I do that a couple of different ways.

I don't have a way that I love yet.

Um, I think it's a hard voir dire, um, and I'm still working on it.

Um, I'll try everything from George Floyd.

I usually like to raise their hands and say they're racist.

Yeah.

Yeah.

It's hard.

You gotta get creative with how you ask them, you know, to, to out themselves as, as neo-Nazis.

Hey, if you're racist, please raise their hand.

Right.

Like nobody does that.

Nobody does that.

So you gotta try to, try to get creative.

Two of our judges, um, have started using the, um, the, uh, federal, um, uh, video on implicit bias.

Um, out of the, I think it's, um, the Western district of Washington has that video on, um, bias that they play, um, for jury trials.

And two of our judges have started using it.

Um, this judge has not.

So we didn't have that to sort of piggyback off of.

Um, so it was just straight up trying to voir dire on race, um, tried to voir dire on folks who had strong opinions about firearms.

Void dire.

Criminal histories.

I assume.

Yep.

Criminal histories.

Um, our client wasn't going to testify.

Right.

So anyone who just was going to, you know, really hold that against them.

Um, cause we know everybody will say that they don't, and then they do.

Right.

So try to like weed out as many of those people as we possibly can.

Um, and I, I forget what else we voir dire on, but you know, those are sort of the highlights, right?

All those folks that just can't.

Any interesting interactions that you remember?

Well, we had the one guy who was like, like, I just, I just can't with these felons and their firearms.

And who got excused basically immediately.

Um, but we managed to use our judges absolute, like, disdain for the fact that he was in trial to get, um, the one, the woman who I thought

was our worst juror, just this, this absolute like Karen looking Republican woman, um, who I knew from looking at her Facebook, like this woman is racist.

Like, you know, just like your worst, like they're caravanning the migrants kind of Fox News Republican.

Um, I was like, I don't want this woman on our jury.

Um, and she had said some kind of borderline stuff, akin to what that guy said that got him struck for cause, but not quite there.

Almost got rehabilitated, um, but not quite.

And so we didn't quite get her to getting struck for cause.

Um, we had gotten kind of enough to be like, well, would you have a hard time with this?

You know, with, with people with a criminal history and firearms charges.

Like, oh, well, yeah, maybe.

Um, and then we kind of let it be for a little bit.

And then right before we were supposed to go to do our peremptory strikes, I was like, Kevin, Kevin, for cause.

Let's try and strike her for cause.

Let's try and strike her for cause.

And we did a, a sidebar and fought about it for a minute.

And because he was just so peeped down by the fact that he had to be in trial, our judge looked at the prosecutor and was just like, do you really care that much?

So we did get her off for cause.

Yeah, this judge just like really didn't want to be there.

And, and at some point was just like, do you like, come on, man, do you really care?

Like, what the fuck?

I don't want to be here.

You don't want to be here.

Like, fine, let's just strike her for cause.

Cause these two are not going to shut up until I just get rid of her.

Um, you know, it's, it's the, just keep pushing and eventually good things happen and just keep talking, Kevin.

Like eventually this judge will just want to go home.

So, uh, judge struck her for cause.

We just had an embarrassment of peremptory strikes.

We had so many that we were just like, we were just like, ah, we'll pick one out of a hat by the end.

Great.

Great.

All right.

So jury selection team or jury D selection seemed to go pretty well.

Let's talk about opening statements.

Then how'd that go?

They went great.

I don't know.

Tell us about it.

How'd it go?

What'd you say?

Don't give us the full opening.

Just the highlights.

Did you, my cousin, Vinny?

Did you just get up and say everything that the asshole DA said was bullshit?

Yeah.

You know, I think since we were doing an alibi defense, it was really easy.

Um, because we can just say, they'll tell you that he was doing this weird thing.

This weird thing where he magically knew where this gun was, stole it for no reason.

They won't present you a reason why he would have stolen it.

They won't show you the gun.

They won't show you any conceivable reason why this would have happened to this day.

We have no reason why they would have accused this man of doing this beyond, you know, our

client's explanation of this sexual assault allegation.

But we can tell you that his story of that day makes a lot more sense, which is just that

he was with his family eating dinner and watching movies.

And that's a much more regular day to have, um, than this very weird one that no one would

have.

Um, and so that was kind of our opening.

And the, the theme was you can't steal what you didn't know, what you never knew even existed.

Right.

Cause we knew at this point that they could never show how our client knew there was a gun

there.

So how would he have gone there or known to steal the gun if he didn't even know it existed?

Right.

It doesn't make any sense.

And quickly.

Right.

Yeah.

Like he just reached right for it.

Like he knew right where it was, even though they can't establish how he knew that it was

there.

And so their story doesn't make any sense.

Right.

That's when they have to prove it beyond a reasonable doubt.

We don't have to prove anything, but we have a story that makes sense.

Right.

A story that like, it actually sounds like a normal human beings day.

So when you put the two of them next to each other, it's clear.

This has got to be a not guilty.

So let's talk about the prosecution's case.

How do they roll out the evidence?

So they start with, uh, with senior first, first witness.

And, um, see previous comment about sour vanilla ice cream.

Um, not really know how to try a case.

He, he, he starts asking all these questions.

He doesn't know the answer to starts talking about the gun.

Um, and on direct, uh, senior says, um, yeah, uh, gun was under the couch.

Cause at this point, the district attorney has obtained a copy of the transcript.

So he knows, you know, what we've asked previously, which is why we were a little cagey previous.

Cause we knew he would do that.

From the revocation hearing the transcript from the revocation hearing.

Exactly.

Yep.

Yep.

So, so he, he knows kind of where we're going with it.

And he starts asking this, what the, the, um, the witness, but like he'd been there before.

Right.

So he would have known cause you talked about it.

And the guy, Emile senior goes, Nope, actually I'd never talked to him about it.

Not once, not ever.

And then he goes, well, but like he'd been there for parties before.

No, not really.

Never really been there.

Uh, and he does keep, he keeps trying to get him to say these things.

And seniors like, Nope, Nope.

I wouldn't have left the gun visible with my son.

I'm not a bad parent.

Like there's no way.

And, you know, I'm sitting there at council table.

Like, Oh fuck.

Yeah, man.

Like, this is going to be great.

I'm going to double on all, on all this shit.

Right.

And, and again, he goes into like, Oh, well, you don't have any injuries on your feet because

you were like running with the car, right?

Like you weren't being like dragged.

You were like running with the car.

And again, the guy's like, kind of, I guess.

Right.

Maybe.

Um, and it, it just like, doesn't land.

Was the gun supposed to be locked in a box or anything like that?

Is there any, like any, like, you know, in California, you have to like, keep your guns

locked up, which kind of doesn't make sense.

Cause when the shit goes down, you can't just be unlocking your box and then on one side

of the room and then going to the other side of the room and grabbing the ammunition

anyway.

All right.

But that's California.

What's it like in Wisconsin?

It is the wild Midwest.

No, you can have your gun.

You can put your gun on an altar.

You can worship it.

Um, it is nah, nah, man.

Like we, we, we love our guns.

Apparently.

Uh, should we clarify how big this gun is?

He was supposed to have taken everything about a shotgun, a handgun, handgun.

It's a handgun with a, allegedly a, um, one of those laser sights on it.

So handgun and then the laser sight sort of underneath the barrel, uh, and in front

of the trigger mechanism.

When he gets dragged by the car.

So he describes in the direct, direct testimony, like he, how he got dragged.

Like what happened?

Was the car driving away and he jumped on it or the back of it?

He, he apparently grabs the, the door handle and is like hanging on to the door handle

as he's dragged.

Um, and he, he, he says four a ways on direct.

And then on cross, I would later clarify that this was like at least half a city block,

um, in his bare feet.

And he reports no injuries and none are observed by law enforcement, which to me doesn't make

a whole lot of sense.

No.

So, um, cross is great.

Uh, cause I'm like doubling down on you're a great dad, right?

You would never leave your son alone with a stranger with a gun, right?

No.

Uh, it would always be locked up or invisible cause I'm a responsible gun owner.

And, uh, at one point, you know, I, I did the thing you're not supposed to do.

I asked one question too far and say, there's no way he would have known that the gun was

in underneath the couch.

And he goes all the way with me.

Yup.

There is no way.

He wouldn't have known the guns under the couch.

And it's like, great, cool.

I definitely shouldn't have done that, but I'm really happy you went with me.

Um, uh, and so that was great.

Um, and then, you know, we get into this weird fight.

We were on cross.

I mean, I'm asking about the injuries to his feet.

There are no injuries.

I established he was dragged for this good long ways.

And then on re, uh, direct the DA is trying to like reenact.

He like literally stands up at one point and it's like reenacting, like not being dragged

by your feet.

Um, and.

Like a Fred Flintstone type thing.

Yeah, exactly.

And it just sort of degenerates into this weird like conversation about how this guy

could have been dragged with no visible marks whatsoever.

And it, it just doesn't, just doesn't follow.

What about the, the incident that was that talked about with, by the prosecutor?

Did he bring the prosecutor, bring it up first?

So surprisingly, no, he, he doesn't try to take the sting out of it and he lets us get

into it.

Um, so I asked him about it and, um, he claims that nothing happened, um, that she was never

over at the house and that, um, he would never do anything like that.

Um.

Never, ever at the house?

Correct.

Never, ever at the house.

Um, during this, during the time period between wife going into coma and the incident, he claims

that she's just never there.

So the senior who's friends with Kelly is saying Kelly never went to the house, but Kelly's boyfriend

or fiance, Zach, that senior doesn't even know well enough to know his name was at the house.

Correct.

And at one point they, the family claimed she doesn't even know she, um, our client's

wife doesn't even know that her best friend has had a brain aneurysm.

Um, like there are stories all, all over the place.

He, he claims that, that Kelly doesn't even know that she's in the, that, that his wife

is in the hospital, but yet our client comes over to console him about it, who he barely

knows.

No, no.

So, so senior says Kelly doesn't know that the wife, who in my head, I'm now calling Jesse

Spano, that Jesse's in the coma.

But he says that Zach comes over specifically to see him, senior, about the fact that his

wife's in a coma.

Correct.

That is his version, which makes no sense.

No, no, it really doesn't.

Nope.

Nothing about it makes sense.

Correct.

How does Zach know if Kelly doesn't know?

That was our point.

Okay.

The, both of these things cannot be true.

Right.

Either she knows and he came over to the house or he was never at the house and she doesn't

know.

Um, which of course doesn't make any sense.

So, uh, and then they call junior.

Junior is a wild ride.

He's inconsistent between his police interviews.

His revocation testimony and his trial testimony.

They are all inconsistent on whether or not our client just pointed the gun at him, cocked

the gun, pointed the laser at him.

Um, whether he told him to shut the fuck up or said something different.

Um, but probably the best part of junior's testimony happened on direct.

Um, when the prosecutor at the very beginning asks, can you identify the man who stole the gun?

Is he in the courtroom right now?

And he says, no, I can't.

And, and you've got me and Anna who, again, full disclosure, we are very definitely white.

Like, uh, not, don't look at any, in any way similar to our client.

Right.

There's like white person in suit white person in suit.

And then our client who is a tall, sort of skinny, but a little bit taller than me, black man.

And it's like, well, what's, what about these three things?

It's not alike.

Right.

How do you not?

How do you not?

I, I mean, it, it's so simple, man.

Right.

Like, like point.

Right.

They're at council table.

There there's a, the district attorney has a right.

Exactly.

The district attorney believes there's a right answer here.

Right.

Like, how did you not pull this off?

This was supposed to be a layup.

And he's already testified.

He's 100% sure that it's, you know, our client, Zach Johnson.

Right.

Yet he can't pick him out in a room 30 feet away.

How does that work?

Would he identify him in a six pack or a photo?

No, police didn't even, police didn't even go that far.

They just, when he said it was Zach Johnson, they said, okay, great.

We're going to go arrest Zach Johnson.

They didn't even bother with a six pack.

Oh, I see.

So you're not saying that junior had identified the client while he was testifying.

Yeah.

So junior tells the officers on scene.

It's definitely, once they figure out his name, it's definitely Kelly's fiance.

And then they say, okay, Kelly's fiance, his name is X.

Okay.

So it's definitely him.

Right.

Um, and I've seen him before.

So I know it was him.

I know it was him.

And then we get to the revocation hearing, right?

He testifies, sees him, and then comes to trial.

And they say, they say, can you pick out the person who pointed the gun at you?

Nope.

Even though he's sitting 30 feet from him.

Do you see him in this courtroom today?

Hmm.

No, no.

No.

How does the prosecutor react?

He just moved on.

I don't think he knew what to do.

I mean, I wouldn't know what to do either.

I think he was just hoping nobody noticed and just like tried to just like keep pushing

on.

But Cross was funny because, you know, Anna's trying to impeach him.

And at one point, he kind of can't like get everything straight.

And so at one point, Anna's standing in the well with the transcript and she's just like,

wait a second, what's your testimony again today?

Because like, it's just changed like four times.

He was an utter train wreck in terms of the details, right?

He was not at all specific.

At one point, he's lunging first and then our client's lunging.

But at another time, our client lunges and he responds.

What our client said is, you know, one version that it changes to another.

It's just all over the map.

He did the that what that court reporter wrote down was wrong.

That transcripts wrong.

I definitely did not say that.

One of those.

Wow.

OK.

So this is great for you, for your case.

Yeah, it was wonderful.

It didn't even matter.

Like my my impeachment.

It was very chaotic.

I had no idea where it was going because it didn't really matter what he said.

Yeah.

Who cares at that point?

He changed his story so many times.

OK, so what happens next in trial?

Next, they call the daughter who was exceptionally clear about what happened and also an adult.

Also an adult.

Yeah.

And so we decide that she didn't see anything.

She claims that she recognized it was our client leaving the house.

But from an upstairs window.

And then she claims that she ran downstairs in time to see the dad get dragged, which is like having to like leave a bedroom, run down a hall, run down a flight of stairs, run through an entryway, open door, get out there.

It was just sort of like not super past the bar.

Yeah.

So yeah, past the bar.

Yep, exactly right.

Didn't really make a whole lot of sense to us.

So we kind of wanted to limit her the damage of asking her to clarify anything.

So we just no crosser.

We decided we'll just just leave it out there.

She didn't actually see she didn't actually see a gun.

She didn't say that she saw any of the actual events, just allegedly someone that looked like our client leaving.

She's far and away the smartest person in that family that testified in any of these proceedings.

So if anybody was going to clean up testimony, it would have been her.

Oh, and the DA had missed kind of a few things that we knew were out there.

So we also didn't want to give them the chance to clean it up.

So, yeah.

So we had a cross plan and decided just to no cross it.

I like it.

I like it.

All right.

So what happens next in trial?

Next is the investigating officer.

Okay.

Was he sitting at council table with the prosecutor?

Whole time.

Whole time.

Nice.

They're there to instill confidence in the case.

Just in case, you know, the jurors are starting to get skeptical.

Don't worry.

I was in charge of this case.

I investigated it.

I made sure that all the evidence is there.

So you guys can have enough evidence to convict.

So go ahead, investigating officer.

And the IO is the same bumbling officer you've described previously.

Correct.

Perfect.

Love it.

So here he comes to instill all the confidence.

And direct is just, you know, vanilla ice cream all over again, right?

Just what next?

Then what happened?

Then what'd you do?

And he just walks through arriving on scene, taking the witness testimony.

And then essentially like, that's it.

That's all I did.

And so I get up there to cross.

This is going to be by far the longest cross because there was so much he didn't do.

And so I start hitting him on all the things he didn't do, all the things they didn't have.

They didn't have the gun.

They didn't have any forensic evidence.

And, you know, he said a few things that were incorrect.

So I impeach him on a few things.

At one point, he tried to wiggle.

You know, I asked at one point, you know, this was one of your first investigations in this type of case, right?

I don't know about that.

I had done others.

I was like, oh, great.

Cool.

Now I get to impeach you with the video of you telling them that this is your first time.

Like, let's do this.

Great.

That sounds fun.

So, you know, I play the body cam of him, you know, telling these guys, I'm sorry.

I have to keep calling my supervisor to like figure out what I'm supposed to be doing.

Because this is my first time doing a case like this.

I was like, all right, really?

All right, cool.

Let's go there.

And so we get to the end.

And, you know, I end with, you never even, because he didn't even bother to look under the couch.

So he like walks into the living room at one point, takes a picture of the area, but never actually like lifts the couch up to see if the gun is no longer there.

And so I end with just, you know, asking him, like, you never even looked to see if Junior had the gun in his bedroom.

No, you never looked to see if it was in the gun safe six feet away.

You never bothered to look if it had ever left the hiding spot under the couch, did you?

No.

For all you know, as you sit here today, it's still under that couch, I guess.

Or could a gun even fit under the couch?

Correct.

He doesn't.

He doesn't do any of that.

None of that.

Right.

And I had the picture showing that this couch was like, yay high off the floor.

Right.

Like, it was just preposterous.

And the DA tries to rehabilitate him and just makes a mess of it.

And he somehow seems to think that it's a good idea to have him clarify that all these things are missing because he was just taking them at their word.

And then says, well, and you didn't mention any of these things because you weren't looking for any exculpatory evidence.

Right.

No, I wasn't looking for any exculpatory evidence.

I was just taking down what they said.

And then I only wrote notes on things.

He says on direct, I only put in my notes things that confirmed what I believed happened.

And I was like, oh, great.

Recross is going to be awesome.

And so Recross, I got a little heated.

I just, I just destroy this guy with it.

And at one point I'm just like yelling at him and the jury's doing the ping pong thing back and forth.

I'm like, you know, as a sworn law enforcement officer that these individuals sitting in courtroom today are paying to investigate crime.

You only write down things that confirm what you believe happened.

Yes.

You don't look for exculpatory evidence.

No, you just take people at their word.

Don't you?

Right.

And he was like, yes, yes.

Like, the poor guy just, I mean, totally shredded.

Totally shredded.

Did your supervisor tell you to take him at their word?

Did your supervisor say, don't bother doing that?

Should I look under the couch?

Don't bother doing that.

No need.

Don't look for exculpatory evidence.

Is that what your supervisor said?

It was just, it was, it was so bad, so bad.

And even the DA, you know, at one point, I mean, he's just looking, he's just got his head in his hands.

He knows.

He's ready.

He's ready to go back to private practice.

Yep.

Yep.

Go back to working for those insurance forms.

Personal injury.

Yeah.

And then they try to call a couple of cops to establish that our guy turned himself into probation and parole three weeks later.

And I guess the DA thought that the fact that there was a three week delay was good for him.

And, you know, we were like, dude, innocent people don't, or innocent people don't run away.

They turn themselves in, right?

Like he has nothing to hide.

So he came to, to, to report to his probation agent.

He did what we expect.

What, what do you mean?

That's a good thing for us.

Um, and for some reason he had like four cops that were going to testify to this for no good reason.

Um, so, uh, after he called the second one, I moved to exclude his cumulative and the judge who did not want to be there was like, nah, now those three officers do not need to testify.

I'm excluding them in their entirety.

Just don't even bother calling them.

And so then he rests.

That's it.

That's the whole evidence.

So you guys rest motion to dismiss the, the, the judge kicking the evidence probably not or kick any charges.

Nah, no.

Yeah, it's too much, too much work there.

Time for the defense then.

Okay.

So they'll tell us about the defense.

So, uh, we start with the, I think we started with, um, Kelly, right?

The fiance.

Um, and she testifies first, lays out what their day looked like and really everything that our client would have testified to if he had testified.

Right.

So she was with him all day.

They were watching movies.

Um, humanizes our client, talks about the great job he had that he'd been laid off, but they were, you know, doing well.

They didn't need to be stealing things.

She was working, had a great job.

Um, they, uh, spent the whole day cleaning, milling around the house, watching movies, and then left slightly before this incident was alleged to have occurred to go to Milwaukee, um, to see his mother as they, you know, did pretty regularly.

Um, talked about what they did when they got there, what they had for dinner, what her mom made, what they did after dinner.

Um, and then described getting a call from her daughter, um, about, um, the incident, the incident where the daughter calls and says, you've been involved in a high speed chase, whatever.

And, um, the fiance says, no, we, we weren't.

And my car's right here in Milwaukee.

It's not in Beloit.

And, uh, Cross is trying to poke holes in the timeline, but doesn't really have a direction.

Um, it kind of falls flat.

Wait, I'm sorry.

Wait, who, the daughter, whose daughter called?

So.

Kelly Kapowski's.

Correct.

Kelly's daughter called Kelly to say that she wasn't, that, that she saw Kelly's car in high speed chase.

High speed chase that she heard in the neighborhood that her vehicle was involved in high speed chase.

That's right.

Yeah.

It's a community phone tree.

Remember?

Okay.

That's right.

That's right.

Yeah.

Yeah.

That's right.

Yeah.

That's right.

That's right.

That's right.

That's right.

That's right.

That's right.

That's right.

You know, she had this call with her daughter in Milwaukee.

Um, and we had tried to contact the daughter and the daughter had not responded to us.

Um, so we didn't know exactly what she was going to say.

We just had the police reports.

Um, but she showed up, the state had found her and issued her a subpoena.

Um, and so then we call the mother-in-law or sorry, not mother-in-law, our client's mother.

Um, who is this, you know, sweet.

The special needs teacher.

Mm hmm.

Okay.

And it's just nothing but lovable through the whole thing.

She's got this, this, you know, charm to her.

And I'm asking her questions.

You know, I asked her, how long have you known Mr. Davis?

And, uh, she says, oh, I'm his mother.

So I'm like, ah, so a long time.

Har, har, har.

And she's, you know, gives a sweet, loving answer.

Yes.

I've known him since he was a little boy.

And it's just, you know, really lovable.

Um, and talks about the fact that they came over.

Um, she doesn't remember the exact time, but she'd gotten home from school.

She hadn't made dinner yet when they got there.

So it had to have been within this timeframe.

Um, and, uh, she remembers that he was there.

Um, she doesn't remember seeing a gun, him having a gun, anything like that.

He wouldn't be allowed in the house with a gun.

Um, and then what they did after, um, and how long he stayed with, uh, with her.

Um, and she's totally great.

Totally great.

Um, cross exam is ineffectual to say the least, uh, because she is quite savvy and just keeps

working in there that she works with special needs kids and, uh, her patients.

And she takes the bus and just, uh, the more he talks, the worse it gets until eventually

he just kind of like throws his hands up and sits down.

Cause he's like, I can't get her to contradict herself.

And every time I try, she just gets more likable.

So eventually he just sits down and shuts up.

Right.

And she was a total pro.

She was a total pro.

And I had prepped her, you know, we'd met on zoom a couple of times.

And, you know, I'd mentioned like, you know, the single best, one of the single best facts

for us is that you are this wonderful human being that works with these special needs kids.

And she was like, oh, I'll take that assignment and run with it.

Like, boom.

And it worked into everything.

I mean, she was great.

Really, really great.

Um, so yeah, she works that into every answer.

Um, and the jury just loved her.

The judge even said afterwards, he was like, I really liked her.

Um, it was just all about her.

So.

It was the only thing that Judd loved about the whole trial.

Correct.

Was that, uh, that was the only thing he liked.

Um, and then in a recess, we sort of call an audible and call the fiance's, um, uh, daughter

that the state had subpoenaed.

And we had not, um, because we hadn't been able to contact her.

Um, because we talked to her in the hallway and she confirms, yeah, I talked with my mom.

She said she was in Milwaukee.

He, I asked her about the car.

Here's what she said.

Um, to, to corroborate the mom's version of events.

So we call her really, really quick.

She's short and sweet.

Um, the DA is a little surprised because he obviously hadn't talked to her, hadn't prepped

her.

Um, and so we call her, she testifies for us really well.

Um, confirms, uh, that she had called her, her mother, our client's fiance.

Um, everything that the mom had said to a T corroborates.

Um, and then we talked with our client.

He again, does not want to testify.

So we rest.

Nice.

And just for our, our legal Eagles out there, our law students out there, the daughter testifying

as to what the mother said, technically is hearsay, right?

So what theory of immiscibility does it come in under?

Prior consistent statements there.

Prior consistent statement.

All right.

There you go.

Let's, let's go with that.

And so then the, your client doesn't testify.

Right.

And the defense rests.

Right.

Yes.

Any re, any rebuttal by the, uh, prosecution or yeah.

Rebuttal evidence.

Nope.

None.

And then, uh, and then how was your client throughout the jury trial during the questioning

of witnesses, you know, coming to court every day?

How was he?

It's great.

Really engaged.

Um, he and Anna talked a lot.

Um, cause they were so chatty.

Um, but, uh, yeah, we were seated next to each other.

He didn't have a ton of questions to be honest.

Every once in a while, he'd be like, why'd you do that thing?

And I'd just be like, Oh, Hey, we didn't cross her because she's too smart.

And then we'd talk about it later.

Uh, but otherwise he was engaged, but otherwise.

Not problematic.

Kind of trust the process guy.

Yeah.

Not a problematic client at all.

Great.

Great.

All right.

Well, it's time.

Let's move on to closing arguments.

Then who gave the closing argument here?

So I did closing, um, and I'm all about the demonstrative.

So I had like my, my, my bowl demonstrating what beyond reasonable doubt meant.

I had diagrams of the room and how that looked.

We had done, uh, I had the still images that I was going to reference.

I had a big diagram that I'd drawn out on one of the big easels showing how it was.

Their version didn't make any sense in terms of, you know, who's on first, who's on second.

Um, and so the state comes up and gives their very vanilla, um, sour vanilla, sour, vanilla closing.

And, and, and my favorite part was at one point, uh, very early in the closing, um, he gets up and he says, yeah, I understand that the officer didn't do all the things we would want him to do.

Okay.

It was his first time.

I think we had a chance to do it over again.

He would do it very differently.

But that doesn't mean we haven't proved this beyond a reasonable doubt to be clear.

Uh, yes.

Our witnesses were not the most consistent, but I think they were credible.

Um, and it was just like, Oh, come on, dude.

Really?

Like you're not helping yourself here.

Um, and just sort of like bumbles.

I don't know.

What else was he supposed to say at that point?

Yeah.

How about dismiss?

Yeah.

How about dismiss buddy?

If it's a argument is rebutting the B argument, your argument that hasn't even happened yet.

If he's rebutting the argument that hasn't even happened yet, it's over.

It's over.

It's over.

It's over, which makes me feel really nervous.

Right.

Because now it's like, this is mine to fuck up.

Right.

Um, so his closing is very sour vanilla, pretty defeatist.

Um, and, uh, and I get up there and I'm like, look, guys, this, this is trash.

This case is trash.

Right.

Um, their case is trash.

And right.

Your job is not to weigh two competing stories.

You first have to decide if they proved it beyond a reasonable doubt on their facts alone.

Then you have to look at our alibi and see if our alibi causes you to doubt their case.

Right.

So it's not which one's more believable.

Um, you have to, they have to prove their version beyond a reasonable thought.

And I, you have this bowl thing that I do with ping pong balls and signs and all this stuff.

Um, and, uh, I walked through all that.

Um, and, uh, I got really hot about the cop about, right.

Like this, if you, if you needed a reasonable doubt, how about the officer saying he just took them at their word.

Um, and we have a great jury instruction on witness credibility that essentially says verbatim.

You can't take people at their word.

You are the assessors of credibility and you have to consider it carefully and diligently based on the totality of the circumstances.

And they list a whole bunch of factors.

And so I got to say, right, that the officer just took them at their word.

The law says you can't do that.

Um, that you have to scrutinize it.

And under any level of scrutiny, it falls apart.

Um, then I, you know, worked through all the factors and all that stuff.

So I think I like everything you did in your closing argument.

Well, thank you.

Okay.

We get up there on closing and, uh, or, uh, on, on the DA gets up there, excuse me, on redirect.

And he's like, whoa, whoa, whoa, whoa, whoa.

I didn't say my case was awful.

Okay.

I just said that, that they weren't the most consistent.

Okay.

And then he tries to turn the fact that, uh, Junior couldn't identify our client into a good thing.

And so he said, of course he's credible.

Because if he wasn't credible, if he was lying, then he would have just pointed to the defendant.

But because he couldn't identify him, he was being honest.

Which, okay.

Ann and I are just like looking at you like scratching our heads.

Like, I mean, how did he think that that was a good idea?

I mean, your, your first inclination to just hope nobody noticed was probably the right one.

Just like, don't, don't draw any more attention to that fact.

It's not a good fact for you.

Uh, but he goes with it.

He should have been like, he should have been like, you know, you know how like when sometimes people talk, it's just so bad.

It has to be true.

Yeah.

That was, that's this case.

It just has to, it's, it's just that bad.

There's no way they can make it up.

That's a much better closing.

Way better closing, right?

Well, he didn't even try that.

It just, it, it was bad.

It was bad.

So, um, so then that's it.

Then we send it to, uh, deliberations.

Talk about jury deliberations.

How are the, how long were the jurors out for?

Quick, quick, quick.

Oh yeah.

45 minutes.

And that, that's one of those things.

So there was one question.

Um, and only one question.

I don't even remember what it was.

Um, but, oh no, actually I take that back.

We didn't get a question on this one.

I'm thinking of one of the other ones, Anna and I did.

Um, but, uh, yes.

To answer your question, they were vibing with me.

They were up and down.

And even after the trial, the judge said like, because he has to criticize us.

Cause we're the defense.

Um, he was criticizing me for talking too much, which is probably right on some level.

Doing your job.

Um, yeah, I do talk too much, but I thought it was appropriate.

I mean, the closing was like 30 minutes and we're talking about 50 years.

So like, I don't know what you're smoking, man, but this is perfectly in line.

In fact, if anything, it's short for a case of, you know, with a client looking at so much time.

So he was telling me, he was like, yeah, the jury's really vibing with you.

But as you kept talking, like, I think some of them started to like zone out.

Like, oh, thanks.

Thanks for your, your not helpful feedback.

Um, but he zoned out cause he didn't care.

Correct.

Yeah.

Correct.

Yeah.

We had just enough time to go to our court commissioner's retirement party.

And then the jury came back from deliberations.

And this was where he told us that some of the jurors zoned out.

Yeah.

So you guys, you guys all did a closing argument.

The jurors go and deliberate.

Then you, the two of you, the judge and the prosecutor go to a commissioner's retirement party.

Yep.

Kind of.

So the D a did not join us.

Oh, um, but, uh, the two of us went, went down.

So courthouse has got like five floors and there are seven judges and some four court commissioners.

And one of them was retiring and they're having this party on the first floor.

So we go down there to get a cupcake.

Cause we're like, man, fucking hungry.

Um, then we're going to go back to the office and wait out the jury.

Um, and during my closing, I've been really vibing with one of the folks down front was a school teacher that I had really kind of bonded with during voir dire.

Um, and, uh, so, you know, we're vibing.

We take a break.

We go downstairs, we get our cupcakes and, and I get in the car and is going to drive back to the office.

She literally puts it in reverse and pulls out of the parking stall, maybe six feet.

And we get the call from the clerk verdict is back.

So Anna pulls right back in.

We walk upstairs.

And, um, the first thing they do is say, they announce who the foreman is, foreman of the jury.

And I saw that it was the school teacher that I've been vibing with during closing.

Oh, that is the best feeling.

I was like, Oh yes.

Like this is, this has got to happen.

Um, and, uh, yeah, all four, um, counts not guilty.

Um, from time from release to time we got verdict was 45 minutes.

Did you speak to the jurors afterwards?

Yeah.

So we always call.

Um, we, we don't get their phone numbers, but we, you know, run them through our investigator database and we get their cell phones and then we call them.

Um, and we found out, uh, through the calls that they didn't really believe our alibi.

They didn't think it was that credible, but they were so mad at the officer for doing such a bad job, um, that it didn't even matter.

Um, it was 11 to one first vote.

Um, and the one holdout said, well, I just don't want them to get off.

And they were like, no, no, no, that's not how this works.

Um, like, yeah, this is, that's not how any of this works guy.

Um, uh, either they proved it or they didn't.

And can we all just agree that like the, the cop did a trash job, like setting aside the alibi for a minute, like the cop did a trash job.

And we're all, we all have at least a reasonable doubt given how bad a job the police did.

And then the, the holdout was like, all right, yeah, yeah, that's true.

Um, so then they came back.

Wait, so they didn't believe your sweet special ed teacher.

So they didn't.

Um, well, I don't know that I, I think they liked the special ed teacher.

I don't think they believed our, um, clients fiance.

Um, and that's what caused them to kind of doubt the alibi.

Um, they loved her.

Um, it was the, the fiance that they kind of struggled with a little bit.

I didn't think she testified badly.

I thought she did well.

And who knows?

I think when we talked to jurors, sometimes they want to like, they want to give a little credit to both sides.

Like they don't want to be like, oh yeah, you like totally trashed him.

Right.

Um, so they'll, they'll like throw you a, they'll like try to be like, well, we didn't really believe the alibi.

Just like bring you down to earth a little.

Um, but like the officer did a bad job.

So we voted not guilty.

Like, fine.

I don't care.

I don't care why you vote not guilty.

Just please continue to vote.

Not guilty.

Um, no receipts.

Their phones are off that kind of thing.

Like those parts were tough about the alibi in this day and age.

I think if I'm a juror, I'm like, yeah, I can, I can pinpoint myself in a location at a given time.

Most days because of my tracking device that tracks me everywhere I go.

Um, because of all the selfies you take.

Right.

Yeah.

Like, you know, all of the stupid shit I post on Instagram, you know, all of the like unnecessary

things that I put into Google maps.

Like, oh, um, navigate to work the place that I navigate to every day, even though I drive

here every day.

So like, I, I understand why they might be suspicious of like, oh, you don't have anything.

Like your phones were off for like eight hours.

And for three weeks you were in Milwaukee without a single receipt.

Like, okay.

I kind of get that.

So like, I can see why they, they didn't believe that part of the alibi.

I was just wondering if they said anything about junior and senior and whether they believed

them or not, or if they just solely focused their critique on the officer.

So they cited the officer as the thing that everybody could get behind.

But the jurors that we talked to and not everybody responded.

Um, we were able to get ahold of seven of them, seven of the 12.

Um, but the, the seven that we talked to, um, said that, uh, they also individually didn't

believe their version of events that it just didn't make any sense.

It was kind of preposterous.

And, um, they didn't really believe anybody.

No, no.

Um, and, and if you believe no one, we win.

Right.

So like, fine, great.

I'll take that every day of the week.

Um, it just wasn't, it just wasn't the prosecution's case.

That was trash.

Your case was trash too, but if it's all trash, it's still not guilty.

Right.

Right.

And again, like a win's a win.

A win's a win.

You know, right.

Like, uh, again, I think they were maybe overstating that a little bit.

Um, just to like, you know, people don't want to be, take too hard a position.

I don't, I, as long as it's not guilty at the end of the day, that's all I'm worried

about.

Right.

Um, our client was ecstatic, nothing but hugs.

He was absolutely thrilled.

Um, I had never seen him get like really emotional.

He's, he was always kind of, um, you know, I don't want to say stoic.

That was, that's not the right word, but, but he was, he was pretty unflappable through

the whole thing.

Um, and then once we got the not guilty's back, he was, he was tearing up and quite happy and

hugs all the way around.

Um.

Great.

So.

Until they took him back into custody.

Right.

That's the worst part.

Um, and the bittersweet part is he goes right back into custody and actually goes to prison,

even though he was found not guilty.

Um, we'll get some, uh, hope you get some movement on that habeas, you know, I hope so.

We'll see.

Um, and we, you know, after the verdict, we tried to work it into the record and the administrative

proceeding, um, informally that, you know, uh, Hey, he was acquitted in less than 45 minutes.

And, um, uh, because we kind of jammed it into the record, uh, in the appeal, the judge cites

that fact.

So it is in the record.

Now we're going to refer to it, um, in the habeas.

So, um, we'll see if a judge gets a sense of fairness here and you slipped in the fact

that he was acquitted into the record to help your client out.

And then you slipped in the 45 minutes just for your own ego.

A hundred percent.

A hundred percent.

A hundred percent.

A hundred percent.

David.

45 minutes.

May I say it's 45 minutes.

It took 20 minutes to pick a foreman.

20 minutes to cut, to find that we were right.

Judge.

That's all I'm saying.

They didn't even, they didn't even order dinner or, or get one of the cupcakes.

I was back there.

Couldn't even get out of the parking stall.

Judge.

Yeah.

We spent that much time looking through the commissioner's box of ties that his wife had

bought to the retirement party.

She was like getting rid of his ties.

Oh God.

Kevin has one of them.

I do it.

I was like, you should take this one.

It's good.

Sitting hanging up my arms right over there.

Little bugs on it.

Um, all right, well then let's wrap it up then.

Okay guys.

So, uh, um, Wisconsin public defenders, Kevin, Anna, thanks for coming on the show today.

How'd you find out about the podcast?

Did I reach you guys on Twitter or anything like that or?

No.

Uh, so, um, there was an article in the Wisconsin bar magazine about, um, legal podcasts and specifically

public defender podcasts, um, that talked about for the defense.

Um, the one that Oscar David Marcus does.

Yes.

And it also listed in a footnote, you guys.

And wow.

I love, I love.

You're a footnote.

You're a footnote.

Um, and, uh, I love stealing good trial things.

Right.

So like, I'm definitely stealing the Hallaberry thing for, for voir dire, uh, from one of your

previous guests.

I think it was, uh, the attorney from Florida.

Like I'm totally stealing that.

Um, so, uh, I started listening to just pick up trial tips.

Right.

Um, cause you know, it's great to learn from really great trial attorneys, even when you

can't, you know, be in the same room with them.

Um, and, uh, I really appreciate folks who, who do this work and talk about all the good

work that public defenders do.

So, uh, uh, started following listening.

Um, and then I just wanted to hype up Wisconsin because we have a great public defender system.

And so I was like, well, we haven't been represented on the show yet, as far as I'm aware.

So I reached out, picked one of our recent trials and, uh, just reached out to see if

you'd talk to us and you did.

So we appreciate it.

Great.

Glad to have you on the show, Wisconsin.

Cause you're right.

We haven't had a Wisconsin.

Uh, we've had some other Midwest states, but not specifically Wisconsin.

So I'm glad we finally got Wisconsin represented on the map.

You guys are great.

You guys are awesome.

Thanks for being on the show.

Uh, I'm going to wrap it up though.

Last question is question.

I ask all our guests and I will start with you, Kevin.

Kevin, why did you want to become a public defender?

Sure.

Yeah.

So I actually, uh, grew up in a family of two lawyers, both of whom were public defense

attorneys.

Um, and one of whom I, my, my father had a stroke a few years ago, so he doesn't practice

anymore.

Um, but my mother was in private practice and I convinced her to join the agency a few years

ago.

Um, but she, I watched them growing up helping people who weren't getting it from anywhere

else, right?

It was a, it was small, small town way, Northern Wisconsin.

And I watched how the folks that were getting the short end of every stick, um, were getting

helped by public defenders and it really had an effect on me.

Um, and so it was always in the back of my head.

I went to school, was a musician for a while, ran away from being a lawyer for a long time.

Um, and then, uh, the run up to the 2016 election happened and I saw how the law was being used

to hurt people and decided that I couldn't kind of throw stones from glass houses.

I needed to get in the trenches and do something.

And, uh, what better way to get in the trenches than become a public defender?

So, uh, I went to law school and, uh, from, from just the word jump, I was always working

with PD offices with the intention of becoming a PD and did so.

And here I am.

Great.

That's great.

Um, so you've only been a public defender for like five years or so, or four, maybe like

just under four years.

Yep.

Great.

That's cool, man.

That's cool.

You know, just, you know, something's going on in your society, in our world that you

don't like.

Do you want to make a difference?

Become a public defender.

Great.

Anna, why did you become a public defender?

Um, I was in social work for a while.

Um, I was working in transitional housing programs, um, with people who were homeless.

Um, the work was not for me.

Um, uh, I had a really hard time with kind of one-on-one social work with the knowledge

of all of the things that were wrong with the systems that made people homeless.

Um, without doing anything to fix those systems, I realized that I'm still not doing anything

to fix those systems.

I'm working within a system, um, that actively makes people homeless now.

Um, that being said, I wanted to do something that was a bit more academic, um, and less emotional,

um, in the same kind of way.

Um, and so I went to law school.

During law school, um, the type of criminal law that ended up making the most sense for

me politically, uh, was public defense.

And from like a client work perspective, um, public defense made the most sense too.

For my background, um, my politics, um, all of it kind of came together in a way that, uh,

made sense for me.

I like the work, um, I like the vast majority of my clients.

I love my office.

It's a great job.

I recommend it to all of the law students that come through this.

It's like far and away the best lawyer job that there could be.

It's great.

It is.

It is the best.

We are the most fun.

Hands down.

There are no sour vanilla public defenders.

No, I had, uh, I, there's a colleague of mine who, who has described being a public defender

as like being a pirate.

You like just go into court, make hay, cause chaos.

And then you come back to your pirate ship and just vibe with like your best friends,

but all the chaos you cause.

And then you go out and do that every single day.

I can see it.

Yeah.

And then you go on a podcast and vibe, vibe some more with about, with other public defenders

about chaos.

Awesome.

That's awesome.

That's great.

That's great.

Well, glad, glad you're on the team, Anna.

Glad you're on the team there, Kevin.

Uh, great job, Wisconsin, public defenders.

Thanks for doing your, doing what you do all the way over there.

So, um, thanks for coming to the show and sharing it.

And Lauren, as always, great to see you as well.

So.

Thanks.

Until next time.

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.