The ABCs of CYA – A fearless defender exposes a cop cover-up and saves his client from life in prison

She tries to introduce the body cam of the officer who recovers the firearm through an officer's body cam without that officer there.

But after she's testifying, I'm realizing, you know, I actually haven't seen, I've only seen like really one officer here in the courtroom and it's not that officer.

Or like around this, around the trial.

She tries to call the officer who just took it from like the first officer's car.

And I go, objection, this officer can't, you haven't laid the foundation yet, but you need to still have that officer.

And then she was like, okay, I don't have that officer.

I mean, they couldn't, they didn't even introduce the gun.

So, so we're arguing over this.

So then the basically is like, well, if this can't happen, then the state rests.

Welcome to Another Not Guilty.

I'm David Moore, here along with my fellow public defenders, presenting to you the untold stories of the criminal justice system.

Objection!

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

I prefer calling it the American criminal system.

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

In an unjust criminal system.

With a deck stacked against us.

All right, all right.

Welcome to another episode of Another Not Guilty.

Once again, I'm Dallas Gutman, a public defender out of Cincinnati, Ohio.

And I'm here with the best to ever do it.

Maybe not ever, ever, but getting there.

Ever to me.

I'm Rachel McKay.

I'm a public defender with Dallas in Cincinnati.

And today we are here with Stanford Frazier out of Prince George's County, Maryland with a phenomenal not-guilty.

This is a great case.

We're really excited.

So, yeah, let's get to it.

Without further ado, Stanford, take it away.

Hey, my name is Stanford Frazier.

And I hope by the end of the pod, you'll think it's a great case.

Let's-

They will.

Yeah, we already do.

If we say it is, then it is.

And so it was unto the land.

A great case.

Yeah, so Stanford, you are a public defender in PG County.

Is that what you guys call it?

PG County?

We just learned the name of it.

McKay said it like she's from there, but we just learned the name.

It's Prince George's.

Yeah, three seconds ago I was asking if it has an apostrophe, and now I'm like, PG County?

Yeah, now you're a local.

No, so we do say PG County, but there's like bougie folks that are like, no, you have to say Prince George's to be all proper, but I don't abide by that.

So I say PG.

Okay.

I'll say PG if we're at a happy hour, but I'll say Prince George's if we're in the courthouse.

Okay.

Well, we're not judges, so-

That answers the question.

It's PG to us.

Yeah, PG County all day.

And that's in Maryland?

Bordering DC.

All right, another DMV.

Okay, do you claim DC or?

I mean, a little bit, but we claim PG.

Kevin Durant, that's a Prince George's County legend.

You know, he's from Prince George's County.

We got history here.

Stanford has a, like McKay said, a great not guilty for us today.

Stanford, why don't you tell us what your client was charged with?

So my client was charged with attempted murder in the first degree and the second degree.

Okay.

Those first degree attempted murder, they carry the same penalties as regular murder.

So first degree attempted murder carries life.

And then attempted murder in the second degree carries up to 40 years.

And then he was also facing assault in the first degree.

That has a maximum penalty of 25 years.

And then, Maryland, we have assault in the second degree.

We just have those two counts.

So assault in the second degree is a misdemeanor, but it also carries up to 10 years in jail.

Okay.

He was facing two counts of reckless endangerment.

And then he was facing two counts of firearm possession.

So one is, like, wear carry a handgun in person.

And the other is, like, wear carry a loaded handgun in person.

And then, like, the only difference is technically loaded as, like, a 30-day mandatory minimum, but it can be suspended.

So, you know, blah, blah, blah.

So he's facing somewhere between 30 days in life?

I mean, yeah.

When you put it that way, right?

Jeez.

For all intents and purposes, it's a life case, basically.

So the heavy hitters here are first-degree attempted murder, second-degree attempted murder.

Assault.

Is the assault the same alleged conduct?

Yeah, same conduct.

So the misdemeanors are assault in the second degree.

Which theory carries up to 10 years, right?

And then you have reckless...

That's a misdemeanor?

Yeah.

It carries up to 10 years?

Maryland has 10-year misdemeanors.

What?

Holy moly.

What is the state's version of the case?

The state's version of the facts.

And it might be a bit confusing.

And I think the reason it's confusing fits into my theory of the case.

But basically, police, it's about 4 in the morning at a house in, like, a residential house in, like, the suburbs, basically.

They get a call.

They get, like, five 911 calls for, like, shots, right?

We hear gunshots, blah, blah, blah.

They show up to the scene.

And when they show up to the scene, the civilian witnesses, I'm going to refer to them as A, B, and C.

B is basically there.

And he has, like, his...

He's an off-duty police officer.

So, like I said, I'm in PG County, which borders D.C.

So he's a police officer.

Side note, D.C. has, like, 20 different police jurisdictions, like, departments, I mean.

In just D.C.?

Because, like, there's, like, the National Park Service.

Then there's, like, regular, like, D.C.

Then there's, like, federal, like, Capitol Hill police, right?

So, like, just think of, like, all the little, you know, I don't know.

The Smithsonian system.

Number B, or letter B is not in his jurisdiction.

Yeah, he's not in his jurisdiction.

He's an officer in one of the jurisdictions in the D.C.

But he has, like, his badge out.

Yeah.

You know what I mean?

Because you're never off-duty.

Of course he does.

He becomes on-duty.

As soon as someone shoots a gun, he becomes on-duty.

Yes.

Yeah, yeah.

Captain save the day.

Exactly.

And then, I didn't realize it until I got the discovery, but, like, he's slurring his words drunk.

But he's basically, like...

Also, of course.

Yeah, of course.

Well, I mean, it's 4 a.m., right?

Why else do you run at 4 a.m.?

Let him live.

But he says, oh, my client, who's a DJ, he just called him DJ, was basically arguing with someone, right?

And he saw the argument, and then B is saying, because he's off-duty, he literally says the word, you know, I don't have my weapon with me, so I used verbal judo to talk him down and have him put his firearm away.

And then...

These cops are really thinking something great about themselves, I tell you.

Like, every story we hear, it's a crazy egotistical cop doing something.

Verbal judo is real.

I'm a black belt in verbal judo, so I'm not saying it's not real, but...

Okay.

No, so, yeah, so he says he talks my client down, my client puts away the weapon, and then he says, you know, he rejoins to do party activities, and when he turns around, he, like, he hears two shots, then turns around, and he sees A and C kind of, like, tackling client and taking the gun from him.

So A is brothers with B, and then C is also an off-duty police officer from D.C.

Okay.

So A and B are brothers, B and C are off-duty cops.

Okay, and colleagues.

Yeah.

We'll say.

Yeah.

They know each other.

They know each other, and they all know each other.

They're, like, from the same neighborhood growing up, more or less.

Okay.

And then, I guess when A and C talk to the police, they, like, kind of say the same things, but they say that, like, client basically shot randomly.

Kind of suggestively shot randomly, maybe towards the person he's having, like, an argument with, but then that person, like, left and wasn't hit.

And then the reason all these charges exist is because another woman who was attending the party, not involved in, like, not in communication with my client that night, gets shot.

A bullet, or what is believed to be a bullet, goes through and through, so there's no, it doesn't get stuck.

It just goes in and out of her thigh.

And it's actually interesting because even though it's a bullet wound injury, she's, like, in the hospital less than an hour before she's discharged.

Okay.

So, one of the, a minor bullet wound injury, that's a thing.

I want to be respectful.

Is any bullet wound minor?

You know, but.

No, no, no, no, I don't want that.

Yeah, yeah.

But is, so, then the attempted murder, is that a transferred intent thing because he shot this woman?

Or is it, like, they're saying he was trying to shoot the guy and then it, like, happened to hit her?

Like, how does, how does that work?

Yeah, I think it's a little bit of both.

But, yeah, I think they're going with, like, the transferred intent, which comes up at the trial at MJOA.

Okay.

Where basically, you know, spoiler alert, he wasn't, you know, he wasn't, he was acquitted of the trial.

Thank God.

When you say MJOA, what do you mean?

Oh, motion for judgment of acquittal, mid-trial.

You know, all lawyers have different acronyms that we just think are, like, super common and then you go somewhere else and they don't use that acronym at all.

We just call it a Rule 29 because it's Criminal Rule 29.

That's so interesting.

So, I want to understand.

There's a party at a club.

That's where everyone is.

So, this is at a, so this is a house party.

So, basically, I guess, ooh, you know, mini-doxing.

I guess my client is very popular in the, let's say, African immigrant scene in the area.

Okay.

So, this house hosts after parties of those type of parties all the time, every weekend.

Okay.

This house is the after party spot.

Exactly.

And it's during an after party that a woman who's pretty much uninvolved gets shot.

Exactly.

She's in the hospital for, like, an hour, but she lives and she's fine.

So, that's why we're at attempted murder.

Exactly.

Less than an hour.

Client is alleged to have tried to shoot someone else.

Yes.

During some sort of kerfuffle.

Exactly.

And the off-duty cop did not witness what actually happened.

He turned around and two other people are tackling client who has a gun.

Yes.

But remember, there's two off-duty cops.

So, the one off-duty cop is like, yeah, I talked him down at first with his verbal judo.

You know, Thursdays at nine.

And then, when he says he turns around, he says another off-duty cop and his brother basically tackling client.

And then, I think what's important is that, A, he says he takes the gun and makes it safe.

So, he takes the gun and, like, ejects the, you know, ammunition and whatnot before police arrive.

Okay.

So, as far as the police report is concerned, those are generally the facts.

Exactly.

Okay.

So, that's the state's case.

How did you meet your client?

It's weird.

So, the case, like, starts off in district court, even with those charges.

So, that happens, let's say, mid-October.

And I'm not assigned the case until about mid-December.

So, what happens between October and December, then, to your client?

Is he locked up the whole time?

Yes.

So, basically, he has his initial bail review.

And then, within 30 days, he has a preliminary hearing.

And then, well, and then the one thing I kind of say is I feel like preliminary hearings are kind of fake in Maryland.

Like, sometimes I hear the podcast and people are like, yeah, I had all these arguments and we're going to have the judge not do this.

I'm like, 99% of the time, I, like, all the, whatever they're charged with is, like, upheld and they, like, go forward, right?

So, what happens to the speedy trial time in those two months?

Is it waived?

So, it's not waived.

So, we have, like, speedy trial time and then, but we also really have a rule.

We call it, like, the Hicks rule.

But it starts when you get to circuit court.

So, all the time before circuit court doesn't really count towards it.

All the time you're sitting in jail waiting to get to circuit court?

Exactly.

And what gets you to circuit court after your preliminary hearing?

So, after your preliminary hearing, they still have to take it to, well, they can indict by information or a grand jury.

So, that's why I said, like, that's why even though it happened in October, it didn't get indicted until mid-December.

So, that's when I was assigned the case.

So, you meet your client in December after he's indicted.

What's his general demeanor?

How's he doing?

So, when I see him, he's, like, very charged up.

I get to talk to him.

And then, he's, he definitely, like, it's actually opposite of how he testified.

But he's, like, when he gets, when we get into it, he's, like, a yell talker.

But not, like, that he's angry.

Just, like, he's animated.

And then, he says, you know, he talks about being this DJ.

And he says, he's there every weekend at this after party.

Like, this is the after party spot.

They go from, like, the club to the spot every weekend.

He knows they have camera.

They have a big old ring camera.

The video's going to exonerate me, is what he's telling me.

And, you know, I do the typical, well, unfortunately, most, you know, security footage disappears after 15 to 30 days.

And, you know, so there probably won't be video.

But, you know, it's a life case.

So, we'll send our investigator.

But, like, we're not going to find anything.

That is so wild that clients are in felonies.

If your incarcerator are sitting, like, two months before they talk to their lawyer's lawyer, you're sitting out on murder.

And the ring cam that could be exculpatory is getting deleted in the meantime.

Like, is there any, like, how do you guys guard against that?

Because the way it works for our misdemeanor team, you probably have, like, bond reviews, like, four times a month.

So, like, once every week.

Then you just do, like, there'll probably be, like, two people doing all the bond reviews for that day.

So, they'll sometimes, like, flag for serious cases.

And, like, our investigative interns, like, hey, maybe go check out the video here.

But, like, it's not a perfect system.

Like, there's lots of times the video is, like, gone by the time I'm, like, looking for it.

Right.

Yeah, it's not correct.

When I, I do get his version of events.

He basically says when he was there, he saw his friend.

When he gets out the house, like, he's, he's in the house and, like, the owner gets mad and, like, kicks everybody out.

So, everyone's out in the front yard.

But when he's walking out to the front yard, he sees, like, these three groups of, like, he says three or four guys, like, beating up his friend.

And he's, like, whoa, what's going on?

So, then he, like, goes in, like, hey, man, it's not, like, jumping my friend.

And then they kind of start messing with him, is what he says.

And then he says, you know, he basically does, like, take out his gun by, like, in self-defense.

And he's kind of backing away.

And then the guys, like, kind of tackle him and, like, take his gun.

The guys, like, tackle him.

And he says, like, they're the reason that the gun goes off.

Like, he didn't shoot it.

And it was, like, pointed downwards the whole time, like, at his waist.

So, is he saying that C, A, and C are the ones who are messing with his friend?

He's saying A, B, and C are basically, like, beating up his friend.

Oh, they're the primary aggressors.

Yes, that's it.

So, the two off-duty cops and the brother are the primary aggressors.

Yeah, that's his, yeah.

And why does he feel so in danger that he pulls a gun out?

Well, you know, my client is about, let's say he's 5'5".

Well, I don't, he'll probably say he's taller.

5'6 on a good day.

Yeah, A, B, and C are all, like, I even have one testify.

Like, the guy was like, oh, you know, how tall are you?

Oh, you know, I'm 6'4".

And then, like, how tall is your brother?

Well, I'm 6'4", and I know he's taller than me.

Okay, they're big dudes.

Yeah, so they're all big dudes.

And he says that they're, like, towering over him.

And he just saw them beating up his friend.

So, he has the reasonable aggressor and the fear to take out his gun.

But he doesn't, like, immediately shoot or even raise it.

He just, like, takes it out and adds it at his side.

And that's when they tackle him and the gun goes off.

Yeah, and then he says, he actually says he, like, passes out for a little bit.

And then, when he wakes up, the guys are telling him to, like, run.

And so, then he, like, walks away.

And then, like, they come back and, like, grab him and then bring him to the police.

Did his friend have injuries?

We tried really, really hard to get this friend.

And this friend never responded to me, investigators, third-party friends reaching out to them.

It'd be like that sometimes.

So, client's version is that he was DJing this party that he DJs every weekend.

And he doesn't, okay, so he does his normal set.

And now he's at the after party.

And he steps outside at the after party.

And he sees A, B, and C, two of which are off-duty cops, jumping or getting into it with his friend.

And during that, there's a scuffle.

Gun goes off.

Client passes out, kind of in some way.

Comes to.

And people are telling him to run.

And then he's tracked down.

What do you think when you hear this story?

I think, you know, I'm, like, very, like, straightforward.

Sometimes I have, like, a bad bedside manner.

But, like, I don't.

I'm, like, in the belief that I don't, like, actually believe in, like, false hope.

I want to, like, give people the realest thing and, like, prepare them for the worst.

Because, unfortunately, like, we, a lot of times.

I think that's the kind thing to do.

That's the kind thing to do.

And, unfortunately, my opinion as a defense attorney is a lot of times we are in a power imbalance legally.

Yeah.

And, like, we don't have the, we don't have the, we don't have a good hand.

If it's poker, we do not have pocket aces, right?

We have the opposite.

So I just like to prepare my client for that.

And then I was, like, very skeptical we were going to have this video still, right?

I'm always trying to get videos as fast as possible.

But I was skeptical.

And I was worried because I think people just generally believe, like, police officers.

So the fact that, like, you have, like, civilian witnesses that are actually police officers is going to be, like, negative for this case.

So I'm kind of thinking, like, I don't know, man.

All right.

But I was, like, all right.

But you're giving me something to at least investigate.

Yeah.

Yeah.

But, like, I'm kind of leaving that, like, all right, I guess next meeting I'm going to have to be harsh when I, like, you know, shut things down.

Yeah.

It's hard.

If someone's looking at life, like, what are you going to say?

Like, you got to, like, worst case scenario, life.

Like, there isn't anything to, like, sugarcoat that with.

Right.

I mean, yeah, basically.

Only thing you say is, maybe based on these facts, we can get this down to, like, second degree, right?

So talking about investigation, tell us a little bit about your, like, the investigation you did leading up to trial.

You know, especially when I'm hearing some of the L.A. episodes and people are like, yeah, we have, like, 30 investigators in our office.

We have one investigator.

And then, like, sometimes we'll have, like, investigative interns who are, like, college students.

And then, you know, the investigator office is, like, limited to, like, the most serious cases.

But that means I get to work with them all the time.

So you employ your investigator to go do what?

Check to see if there's video.

He gave me the phone number of the friend.

The name and phone number.

Okay.

So I would, like, reach out to him, right?

Also talk to the owners of the house because my client is.

Oh, the one thing he said is some of his friends have already seen.

Video of the night of the shooting, allegedly.

That's one thing you mentioned.

Oh, so you know it maybe was pulled then.

Yeah, exactly.

So I was like, okay.

Okay.

And then talk to the owner of the house because he might, he should know my client if my client's

there all the time partying and, like, see if, like, this video, if he pulled the video.

Those are the three things I asked the investigator to do.

And did you get that?

Yeah.

So basically, he went there and talked to the owner.

So the owner, he said that, well, the owner was, like, kind of, like, talking to him but

not really trying to talk to him.

But the owner had, like, an adult son who was, like, 20 or 21.

And the son was, like, oh, he was there and he was in the house that night.

He, like, saw what happened but also he doesn't want to be a witness.

And then didn't, he says he saw what happened but also says he didn't see what happened.

And then he says, oh, he thinks the person who shot wasn't the aggressor.

And then has, and has, and then he gives my, my investigator, like, a one-minute ring camera

clip.

All right.

That's such perfect legalese.

Did he, that was his quote?

The person who shot was not the aggressor?

Yeah.

Yeah.

Literally.

Literally.

Well, I mean, that's, that's supposed to be the investigator notes that we're giving back to him.

That's amazing.

The person who shot did not create the circumstances that gave rise to the event.

The exact elements of self-defense.

Yeah, I was like, okay, that's really, that's a lot, but I love it.

Yeah, I know.

So when you watched the ring camera, what did it show?

So the ring camera shows A, B, and C. They're dressed in, like, all white.

So this is, like, African, you know, African immigrant community.

So, like, it's, like, traditional, like, West African garbs, more or less.

And they're, like, in an argument with, like, my client, this other guy, and then this

woman.

My client basically explains the other guy's his friend, and the woman is, like, the girlfriend

of his friend.

So it's, like, a three on three.

There's A, B, C, and then client, friend, girlfriend.

Exactly.

Okay.

You see, like, A, I think kind of, like, maybe pushing or, like, mushing the woman, right?

You see that.

So then she's kind of, like, walks away.

And then you see A, B, and C still, like, arguing with client.

Then you see client literally pull what looks like he's pulling out a firearm from his waist.

And one of the guys tried to grab at him, and he says, like, don't touch my gun.

And then you can hear the guy say, man, pull that shit out.

Oh, one of the three says pull that shit out?

Can you tell which one?

On, I think so.

Yes.

And then I'm, I think so.

I'm, like, 80% sure.

And then he confirms it on cross eventually that, like, yeah.

He, yeah, no, it was A, the brother of one of the off-duties.

And then you see A and C basically walking down client.

And then you see, like, client kind of backing away.

And then, like, then you see, like, bushes and the sides of the house.

So, like, the second they get off camera is when you hear, like, two or three shots.

It kind of tracks with what client said, right?

Yeah, yeah.

More than what your, the state's version, right?

B, he says he was turning around and, like, when the shots were fired, he's, like, right there.

And, like, part of the argument, you know what I mean?

Okay.

Yeah.

And then there's no, there's no random other person that client is, like, talking to or getting into, like, an argument or kerfuffle with.

It's A, B, and C that he's, like, in this community with before the shots go off.

I feel like it's so rare that when a client tells you something's going to be on camera and you get it, it is what the client says.

Yeah, yeah, yeah.

You know?

That's always really fun.

Yeah.

Because it's usually, like, oh, we can't, we can't disclose this.

Yeah.

And for a lot of reasons, too.

Because, like, yeah, these kerfuffle, shit happens quick.

Here people are drunk.

I think people's version in their head is just different than real life.

Yeah, and then you have two cops saying that that's not how it went down.

And so you get this police report and you're like, all right.

And then you see that the ring camera is, yeah, borderline exculpatory and shuts down the cops' version of events.

Okay, so you do get the ring camera in time and it shows that three-on-three and in the moments before the shots are fired, at that point, it's pretty much one-on-three.

It's client on A, B, and C.

And then they leave camera view right before you hear bop-bop.

Yep.

Okay, that's good.

Did you do any other investigation?

Yeah, so we're trying to find this friend and we just can't find him.

And then, you know, one time the investigator, I went and the investigator, like, different times, went to, like, the club they were at, that client would DJ at, to try to find him.

But, like, I went, I went and it was, like, maybe, like, at opening.

Like, it was, like, seven or something.

It was, like, two early.

And then, like, the investigator went at, like, 10 p.m.

And the guy was, like, it doesn't really get jumping yet until, like, one, two in the morning.

Oh, man.

And he was, like, mm, yeah, okay.

It's going to be hard to investigate.

With that attitude.

Who's setting their alarm to get up at midnight to go to this club?

And then one of client's other friends was, like, they actually did run into, like, the friend at, like, two in the morning.

And he was, like, bro, you got to talk to the lawyer.

And he was just, like, eh.

He's, like, you got a new number?

Like, he's, like, I'm not trying to give you my new number.

He's, like, all right.

Here's, he's, like, here's the lawyer's number.

Here's the investigator's number.

You should call him.

Never heard from him.

Yeah.

Yeah.

So that's.

Sounds like you didn't need him.

I mean, yeah.

But we tried really hard.

Yeah.

Right, right.

Because I think even with this case, I was, like, man, I just don't.

If you can avoid your client testifying, avoid it.

If you need your client to testify for your legal defense, test defense, then you need to produce it.

But I thought, when I first heard it, I was, like, all right, we got this video.

And then we have the friend back it up.

I don't even need my client to testify.

That's me being a little green and optimistic.

And then I was, like, all right, I guess we cannot find this friend.

Well, you've got to have a certain sense of delusion to do our job.

You know what I mean?

We're going to get the friend.

We're going to have a video.

It's going to be so great.

No, it's the same delusion that got you the ring cam that was exculpatory.

Yeah.

That's true.

So, yeah, we shoot for the stars.

What's the expression?

Shoot for the moon.

Yeah.

Even if you miss, you'll land among the stars.

And they won't dismiss it, but you can see it up.

That's the whole expression.

Right.

And you won't get the friend, but you'll get it on guilty.

What about discovery?

What kind of evidence did you get in discovery?

Yeah.

So, if this case had a trial, I want to say, like, mid-April, we do something called, like,

status conferences that was set about maybe five or six weeks before the trial dates.

I want to say maybe first week of March.

And literally that first week of March, maybe a couple of days before the status conference

is when I got, like, discovery for the first time.

So, you filed in December.

Mm-hmm.

You did your investigation from December to March, we'll say.

Yeah.

And then, but you hadn't gotten any, did you even have a police report at that time from

December to March?

I got the, you know, we got the statement of probable cause because it's basically, like,

in the case file.

It's, like, filed.

We have electronic filing, so it's, like, in the electronic file.

And then I had the indictment.

Yeah, so the discovery I got before the status conference, like, the day or two before,

maybe it was, like, the week before, was, like, A, B, and C, they gave statements, but

basically, like, they literally, like, was put into an interview room and, like, given

a piece of paper and said, hey, fill out your statement.

And then, because, like, some of them are officers, they literally wrote it, like, a police report.

You guys saw the subject, and then, like, I saw two people taking down the subject, not

like I saw my brother.

And then, like, the detective would come in, like, an hour later and be like, all right, this

is your statement?

All right, cool.

Is the person that we arrested the same person you saw with the gun?

Yeah.

All right, cool.

And, like, that was, like, what I got of their statements.

And then some more, then I did get some paperwork then.

I didn't get, like, everything, but I got, like, some of the, like, I don't know, incident

reports produced, police reports produced.

Okay.

So, at the status conference, at first, you don't have anything, but you do get the incident

report, you get written statements from A, B, and C, and, because two of those people

are cops.

They're kind of written, like, incidents report, incident reports.

And so, you just have paper discovery at that point.

And you're missing body camera that everyone knows exists, but you don't have.

They mentioned, the state does mention, oh, there's also, like, a clip.

So, I was still debating if I was going to turn over this, the ring camera that I had,

or if I was going to use it purely for impeachment.

Yeah, what was that debate?

Can you just explain a little bit about why you would be debating it and kind of the difference

between using it in your case in chief and for impeachment?

So, basically, anything that I wanted to, like, introduce at trial and, like, have give

to the jury and then have the jury have when they're in the backroom deliberating, I have

to, like, disclose to, like, the prosecution and, like, vice versa, right?

There's no, you watch the movies, but there actually isn't trial by surprise versus impeachment

is, like, if I think someone's going to go and say the sky is red, but the sky is actually

blue, I can then, like, use a photo of the blue sky to say, hey, you lied, and I know

you lied because, like, you wrote on this piece of paper the sky is blue, but now you're saying

the sky is red.

So, I can impeach you with, like, a prior statement, or I can impeach you with a video

showing the opposite of what you're testifying to.

So, the question becomes, if you disclose evidence, you know, people are going to obviously

be ethical, but then sometimes maybe you're setting someone up to, like, how to tailor their

lie around these unchangeable facts.

So, it's always a question, and because the defense doesn't have a duty to put on a case

and things of that nature, you're always deciding, okay, do I want this in evidence, or maybe do

I just want this for impeachment?

What did you decide?

I said, I want this in evidence.

I want the jury, because it's, like, a one-minute clip.

I say, I want the jury playing this, like, 30 times during deliberations.

Yeah, because a video that good, there's, there's, it's low risk that they are on notice to tailor

their case around it or any lies around it, because, like, okay, like, tailor your case

around an exculpatory video, like, all day, that's fine.

Did the state meet their deadline of March 18th or whatever?

They did and didn't.

At the time, I thought they did.

So, I opened up the link, and it's, like, 25 videos and, like, a bunch of other things.

But she also sends me the same one-minute ring camera clip.

Oh, so you don't even have to disclose it, but I'll disclose it to you.

So, I did, I actually have a moment when, she sent, actually, two different emails.

So, the second email is the one that had the ring camera clip.

So, I sent it back, like, hey, you know, watching this video does kind of seem to contradict

what your witness, you know, your witness testimony.

Is the state considering doing anything with this?

And, you know, the prosecutor emailed back verbatim, oh, it looks like your client is, like,

openly firing a group of party growers.

Disturbing.

She said, disturbing?

Oh, God.

Yeah.

And I was, like, all right.

The way that they see evidence is so mind-blowing to me.

Like, the mental gymnastics that they must go through to believe that our clients are guilty.

I'm, like, are we watching the same thing?

It's.

No, it's wild.

Like, we'll get some evidence, and we'll be, like, yes!

And we're, like, you guys didn't see this?

And they're, like, oh, we saw it.

Like, no deals.

No helpers.

You're, like, it's great for us.

Like, what?

We're, like, we live in different worlds.

Are we watching the same thing?

But I was, like, all right, let's do it.

You know, T-T-S-T-T.

Let's take this, you know, thing to trial.

Yeah.

Take that shoot to trial.

You can say shit on the pod.

For our three-year-old listeners.

I have a very PG.

Yeah, yeah.

I have a PG-13 internet presence.

So, you know, I can only curse once.

I got to save it.

Okay.

Okay, yeah, yeah, yeah, yeah.

Okay.

I respect that.

So, they send you a bunch of shoot on the 18th.

So, you get 25 links of shoot.

So, then you don't even have to worry about disclosing it.

And then what happens?

So, you said you thought you got everything.

And then there was a surprise.

And then, oh, the other thing is, I'm, like, putting in, I put this level of effort in all my cases.

But the background is, I'm super nervous, not super nervous, I'm more nervous than usual because this is my first jury trial since November 2023.

Okay, okay, yeah.

And...

Okay, is this, this was last year?

No, this was in 2024?

No, this was, like, two months ago.

Oh, my God.

Congrats.

Don't want to harsh the vibes, but in January 2024, I was diagnosed with Hodgkin's lymphoma and went through, like, four and a half months of chemotherapy.

Oh, my gosh.

So, I was, like, on medical leave for half of last year.

Yeah, I'm sorry to hear that.

That was all good.

Are you okay?

God is good.

God is blessed, you know, as a, you know.

Mid-May, one year in remission.

Congratulations.

All that good stuff.

Oh, that's good to hear.

Yeah, yeah, yeah.

Yeah, yeah.

Yeah, okay.

Okay, so you're, you're back after being on medical leave and you have a life case.

And you showed up and shut it down.

I had been back for a bit of time, but this is, like, my first, like, you know, about to be my first trial.

Wow, wow.

Yeah.

So, it's extra pressure.

I'm like, man, am I rusty?

You're like, do I know how to do a cross anymore?

Yeah.

So, like, getting into it.

Like, I rode out all of my crosses.

I rode out all of my directs.

I, like, literally rode out my...

You're like, one fact per question, one fact per question.

Short, single, single fact statement.

Short, single fact statement.

Short, single fact statement.

Over and over again.

Rocky Montaigne.

Dun, dun, dun, dun, dun, dun, dun, dun, dun, dun, dun.

Me doing crunches in between, like, watching the body cam.

Next clip.

Yeah, yeah, yeah.

Next clip.

I had a tiger in the background.

Going to the discovery, basically, the week beforehand, the, like, I wasn't going to be in.

So, the trial was going to start mid-April, like, on a Tuesday.

And then, I think, the week beforehand, I was going to be in Jamaica because I had a friend from college getting married.

Okay.

Yeah.

So, it was, like...

Destination wedding.

Yeah, destination wedding.

So, that was, like, fun to do.

But that was another reason, like, I got to be, like, super prepared because I won't do that last minute week before trial, like, getting prepped.

You're getting prepped for trial.

Then you have a destination wedding.

And then the trial is going to start just after the destination wedding.

And the trial after a vacation always goes.

You got to prepare.

I'm voir dire with my skin peeling, you know?

Yeah.

Yeah, exactly.

Do you guys mind if I'm as red as a lobster during this?

I'm sorry.

Do you have bias against people who do not have SPF 50?

He's like, will you hold it against my client if I smell, like, aloe vera the whole time?

My flight's Wednesday morning.

That Tuesday, I get an email, like, I don't know, 3, 4 p.m.

Oh, just, like, investigator notes.

But, like, it's, like, from the detective, right?

And it's, like, 22 pages of notes.

But in the notes, they're, like, notes of, like, it's referring to interviews with, like, A, B, and C and the complaining witness.

Like, follow-up interviews that happen, like, a week or two after the incident date.

And I'm looking at this, and I'm like, I don't have that.

I just have what, I just have the written statements, like, the day of, the night of.

So, you know, to say, like, what's going on?

You have references to stuff here.

And the thing, like, no, you have everything.

And then, eventually, she calls me, and she even says, no, I even put the dates and times and the interviews that I had on the thing.

And I'm, like, basically, like, yelling and kind of accusing her of being a liar.

And, like, I don't know.

I, like, really, like, sometimes you, like, watch a cliche, like, lawyers yelling at lawyers.

I was, like, I would never do that.

I would never let someone talk to me that way.

And, like, a part of me is, like, kind of a shame because, like, I'd never, like, talk to someone that way.

But the other part of me was, like, I was, like, seeing red about, like, these interviews.

Like, we had a whole status conference on this.

So, I was, like, pretty.

And, plus, you want to know what it says, even if they can't use it.

You still want to know what it says.

And, honestly, the remedy would be asking for a continuance.

I don't want to ask for that.

My client's been in jail since, like, mid-October.

Yeah.

So, like, we're going to trial.

You know, I'm not asking for a continuance.

And I don't think they're going to, like, will they exclude A, B, and C from testifying at trial?

I don't think a judge is going to give me that.

Right.

So, like, all that happens is, like, pretty heated.

And then, I even, and I tell this, like, give this to me.

Like, I'm going to be out of town.

Like, I'm going to be out of the office going to a wedding.

But, like, give this to me.

I will, I'm not asking for a continuance.

Right.

So, of course, what happens, I get an email the next day at, like, 4 p.m.

Hey, I dropped off the CDs at your office.

That is so messed up.

Yeah.

That's messed up.

And, I mean, do you think, honestly, that they're not trying to, they're assuming you're asking for a continuance.

So, they're trickling in all of the, all of the discovery that matters.

It's, it's the medical records, it's the body camera, it's everything.

And you're, like, I'm not asking for a continuance.

You know, I don't know.

I don't, I don't know if it's, like, malicious or, like, just not, just being slow to do, disclose your duty.

I don't know, I guess I'm trying to be nice at this point.

No, I got you.

I was, like, in the moment, kind of, like, seeing red.

But I don't, I don't know.

I can't read someone else's mind.

Mm-hmm.

They're just, they have so many cases.

They're also super busy.

We'll just give, we'll just give them the benefit of the doubt, I guess.

But it's disrupting your betrayal.

So they, they, so they hand deliver this CD that you cannot get yourself because you are en route to Jamaica.

Exactly.

So how do you, how do you, how do you deal with that?

Also, you bring your work computer to Jamaica because you know you're going to get these.

Oh, yeah.

Like, do you think you're going to get them?

I bring my work, you know, it's, like, a bad habit.

I love bringing my work laptop and my personal laptop, you know, personal laptop to get my workouts on.

And then, you know, watch some Netflix, even though I'm on daycare.

And then I bring the work laptop.

Yeah.

Yeah.

Just in case I'm going to work.

I leave, I leave the work at home.

I do.

It's like a security blanket because you're like, well, what if, and there you had it and you were ready to go.

And I had to use it, you know, I'm like, I'm, I'm, I'm tanning next to the pool with like the, with a headphone in, like, with my AirPods in, watching, watching, like, body cam or watching, like, interviews.

Did you still enjoy your vacation?

Yeah.

Yeah.

I mean, you know, I think, like, there's lounge time.

So my lounge time just involved the laptop.

Was there anything in the discovery that you got that made you nervous?

Oh, yeah.

There was so many more details, actually.

So, like, tell us a little bit about that.

Well, A says he first gets there and, like, he daps someone up.

He said he daps up one of someone he knew from college who is the friend of client, that client was offended.

Like, same name.

Let's say missing friend.

So he says, yeah, I see missing friend.

I dap him up.

I don't really talk to him that often.

But, like, I, you know, went to, I knew him from college.

So, like, we were on campus together eight years ago.

And then, like, next, you know, I see he's getting into an argument with this, like, guy.

And I'm like, yo, why are you guys arguing?

And he's like, oh, man, this Jamaican guy pulled a gun on me.

And then he says that, like, missing friend walks in.

They all walk into the house party together.

The missing friend, like, gets into a fight inside, like, the house party with somebody.

Then he says that the missing friend, like, gets outside.

And then he's like, this was an interesting detail, that he, like, is then getting into, like, he's about to fight the little brother of C.

So, the new discovery has, A, saying a ton of stuff that implies that missing friend was getting into it with a lot of people.

Yeah, getting into it, basically, with everybody at the party.

Oh.

And then he eventually says that missing friend, like, goes by, like, the fence.

I guess, like, you know, like, those wooden fences, right, white picket fence.

And, like, picks up one of the two-by-fours, and now is, like, swinging it around.

Man, missing friend was active for being completely, no, I get why he's missing now.

Yeah, I didn't like those details, obviously.

Yeah, well, tell us a little bit about why that made you worried.

Well, I thought one thing was, if they testified to that, it's, I guess it's, like, one thing saying, oh, it's a friend that my client's protecting.

But now, like, this friend, I guess, is also maybe friends or at least acquaintances with, like, A and B, A, B, and C.

It's unclear.

And then it's too, I'm thinking self-defense.

I also want defense of others, you know what I mean?

But it's like, okay, does that make him less sympathetic if he gets into it to protect someone who's maybe being a jerk?

Well, in Maryland, is part of self-defense or defense of others that they can't have created the situation that gave rise to the reason for the defense?

But yeah, the very first line is, the defendant was not the aggressor.

Or, although the defendant was the aggressor, did not raise the fight to the deadly force level.

So, you're this friend, if you're going defense of others, swinging a two-by-four around and starting fights with everyone, kind of takes you out of the defense of others.

Yeah, I think so.

That's what, yeah, I definitely think so.

So, you see that in the new discovery and you're not loving it for that reason.

And I did get a new interesting detail is that they said that they were at a wedding that night beforehand.

And then after the wedding, they all went to, like, the whole, like, I guess, party, bridal party, went to the, like, club.

And then they came to this house.

Okay.

And then after the party.

That's good.

So, that's a lot of drinking.

Yeah, exactly.

A lot of drinking.

And I know you're in Jamaica at this point, but have you been, you know, seeing your client periodically throughout this, throughout the prep of this?

Yeah.

So, I guess, rewind, rewind, rewind.

When I showed him the video, he was like, yeah, you think, he's like, yeah, this is great.

We're going to, like, win this case.

He's like, no, there should be more video.

Oh.

He was like, no, there should definitely be more video.

There's other clips.

And I'm like, there aren't other clips.

No, there's definitely other clips.

So, he's like, ready to go to trial, but at all two points being, like, very annoyed or angry that we don't have trial.

And then, like, fast forward, I do visit him, like, the Monday before trial, and he's like, like, he's like, man, this just sounds like I'm about to lose.

This sucks.

Oh, okay.

So, he's, like, really kind of losing confidence a little bit.

He was never as confident as that first meeting, is what I'll say.

What do you think about the case, you know, right before trial?

I mean, I think it's good.

I get this.

You know, I'm in Jamaica looking at the stuff, and I'm like, okay, maybe I'm just, like, stressing extra because, like, I'm on daycare.

And I'm nervous that it's, like, my first trial in a while.

But, no, I think I have a good case.

I'm, like, confident in my skills, you know, all that good stuff.

So, I think I have a good case.

Okay.

So, you're confident, clients kind of losing confidence, but.

The one thing, because, to me, the video, like, kind of seemed so different than how they testified, and how, like, what the statements were on body cam and things of that nature.

I guess, like, I didn't know how they were going to testify A, B, and C.

So, I was just, like, I just got to be on my toes and, like, willing to adapt.

And, like, hopefully I still have that in me.

I was, like, nervous if I could, like, adapt on my feet quick enough based upon, like, how they were going to testify or not.

Well, you do have their statements on camera, so you can impeach them with that if they, you know, stray.

One thing is, I, like, hate impeaching by, like, video.

I feel, like.

How come?

Like, it just doesn't feel as tight when you're doing, like, a police report, like, a written statement.

And it just seems like, all right, so you have to, like, plug your computer in, and you're putting it on the whiteboard.

Then, of course, like, okay, there's buffering for, like, five minutes.

And then, it's just, like, I feel like all that type of, like, Murphy's Law stuff can happen.

I mean, that's hard about impeachment is that, I mean, sometimes we have an idea of what we're going to have to impeach on.

But some witnesses are just such wild cards.

Like, in this trial, the video just doesn't match the police report in most ways.

And so, you're, like, well, when are they going to start lying?

Like, from the get?

Or, like, halfway?

And so, we really just have to know the statement so well so that we can just, like, lock in at any point at any lie.

But it's nerve-wracking because you don't know what that's going to be.

Yeah, I do think this job just requires just being comfortable with a certain sense of, you know, uncertainty.

Yeah.

Yeah, the best defense attorneys can just pivot, pivot, pivot, pivot, pivot, pivot.

Yeah.

I think that's, like, what new lawyers, because I work with a lot of new lawyers, and they're just like, well, what if, what if?

It's like, well, what if?

I don't know.

You know, you just got to get out there and see what happens.

And usually, I don't know, sometimes it works out really well for us.

Were there any offers in this case?

It wasn't early.

We got a plea offer.

It was to attempted second-degree murder.

But it was, like, pretty – it might have been, like, maybe Monday night, the trial starting Tuesday.

What's the, like, vulnerability on that?

So, like I said, the max on attempted second-degree murder is, I believe, 40 years.

I think my client, he either technically had no record or a low record.

This maybe becomes relevant in the postscript.

But – so, I think, guidelines-wise, he was probably looking around maybe 15-ish years.

That was, like, the offer.

Yeah.

Okay.

What did he think about that?

I mean, he was like, heck no.

Yeah.

No.

Attempted murder, like, first-degree on these facts is wild.

That he had, like, premeditated tried to murder somebody on these facts is just, like – it doesn't track at all.

You have what the off-duty police officers, like, profit to officers on the scene, right?

Yeah.

And they're not looking at the ring camera at all.

So, without the ring camera, it's kind of how they're presenting it.

And because they're officers, they know how to say their witness statements in a way to, like, minimize, basically, hide their involvement in this at all.

And make it seem like a client was, like, trying to shoot someone he got into a fight with at a party and just accidentally hit someone else.

Well, because there's a huge CYA element here because there's multiple off-duty officers who are definitely drunk, and someone got shot and almost killed.

Yeah.

Well, that's what I was just about to say.

Like, do you think that they were, like, when they told them to go, they were like, okay, get out of here because we don't want to be involved?

And then when they realized, oh, shit, well, somebody got shot, so we're going to have to be involved, they made him come back and put the blame on him.

I think that's what it was, yeah.

Yeah.

I think because when you see the video, they're the ones right in front, and they know they didn't get hit.

I think it's kind of like, okay, this is bad.

But if he's not here, maybe this all can just, like, maybe go away.

Oh, I don't know who shot.

They escaped.

And, like, maybe it goes.

Maybe it doesn't go away, but, like, it goes away in a lot.

It goes.

It's a much easier path.

They want to testify in someone's attempted murder trial.

Yeah, exactly.

Okay, so there's been an offer.

It's been rejected.

We're a day before trial.

How are you feeling day before trial?

I'm feeling good.

I do trial binders.

Everyone has a different style.

I have a trial binder with all the, you know, different facts in there.

I have my outline.

My trial outline is, like, 50 pages.

Like I said, I literally wrote out a cross.

Because I said I got, like, 25 different body cameras.

So I'm like, all right, I'm going to have a cross for every officer.

I don't care.

Yeah, because you don't know.

So, yeah.

Yeah, that's the other thing.

We don't get, like, official witness lists.

It's kind of like, well, here's the list of every officer that responded to the scene.

Yeah, we get that, too.

It's like, well, here's who we think we're going to call.

So we're just going to figure it out day out.

No idea.

And the funny thing is, no officer was called in this case.

I'll get to why.

And then, oh, the one thing was they did DNA swipe the gun.

And they also tested it against A, B, and C.

And they said that for the trigger, it was, like, inconclusive.

It could be, like, any male contributor, basically.

Okay.

So I actually subpoenaed their, like, forensic person.

Because I wanted to present, like, if my client, like, purposely pulled this trigger,

his DNA would be super strong on it.

But it's not.

So I just, like, cut.

So I was like, so I was going to, like, call their person if they didn't call their person.

So that was one thing I did.

So I subpoenaed the 21-year-old to come.

And he did show up.

He showed up with his dad.

They were not happy.

Yeah.

I understand.

Well, actually, he called me.

The day before trial.

He called me on Monday, like, hey.

So, like, what happens if I don't show up?

And I was like, I can ask for a warning for your arrest.

And he was like, is that a bad thing?

Yeah, there's a prosecutor in all of us.

Did you take a scalding hot shower afterwards and, like, cry in the fierce position?

Like, who am I?

I gave him a correct, an accurate assessment of the law.

Okay.

Yeah, you did.

I gave him an accurate statement.

You didn't say you were going to do it.

I didn't say it was an answer.

I just gave him an accurate statement of what could happen.

All right.

So you're ready to go.

And your client, how's your client feeling day before trial?

Maybe it's because, you know, I hadn't, maybe because I gave him the plea off at the same time.

He was, like, super down.

He was just like, all right, but where's the video?

He's like, what, what the, I'm like, where's the other parts of the video?

Okay.

So he's, like, hyper fixated on something that doesn't exist.

Yes.

Well, yeah, because can you imagine you're charged with attempted murder, life, tale, or whatever.

It could be life.

And there's a video that, of course, you couldn't get because you were locked up this whole time.

And your attorney did the best he could to get what there was, but it wasn't everything.

And you weren't able to defend yourself because you were in on allegations.

And what you think is necessary to win your case has been erased.

Like, the feeling in your stomach would be so gross.

Yeah.

Okay.

So day of trial.

What kind of jurors are you looking for?

No, I didn't really, I didn't come into it with an opinion on what kind of jurors I wanted.

So in Maryland, it's judicial-led, like, voir dire.

So I don't get to ask the questions or, like, follow-up questions or anything like that.

Oh, right.

We remember this, yes.

Yeah, you guys at the Anne Arundel County, yeah.

And then, you know, so my wife is also a public defender, but she does appeals.

Her critique of me is that I don't do enough in voir dire.

My questions are all the same, like, it's like the legal questions.

Are you over 18?

Do you live in Prince George's County?

Do you have a criminal record?

Are you, like, a police officer, friends and family of police officers?

I guess the one special question is, like, do you have, like, special feelings about,

because it's, like, involved with guns, about, like, gun crimes, right?

And then, like, you know, if you believe, you know, the defendant doesn't have the right

not to testify.

Would you find them guilty because they didn't want to testify, right?

Do you believe in the presumption of innocence?

Like, those kind of questions.

I keep it very basic, you know?

So is there anything that happened in voir dire that was, like, particularly notable or that

made you feel, like, nervous or, because it's really a lot out of your control.

So how does that process feel when you're, you know, doing a life case?

I mean, I'm just taking down my notes on what's happening, trying to take down notes on everything

that everyone writes.

I have my, I guess it was 20 and 10.

I got 20 strikes and the prosecution had 10.

Was there anything that stood out to you during that process?

We don't have to go through, like, every single question.

I did get Batson during the, like, when I was, like, picking, when I was, like, picking

the jurors.

You got Batson.

So you got Batson.

The prosecutor objected and said, I'm doing a Batson challenge.

Wow.

Okay, that's new.

That's new.

That's a creative angle.

Yeah.

Can you just explain what a Batson challenge is generally?

Yeah, so, I mean, like, I guess the original case was basically, like, they were, I think

the Batson case was basically, the prosecutor was just trying to strike all the black people

off a jury.

So that, because they thought to be sympathetic to, like, the black defendant.

So the Supreme Court was, like, all right, if you're, like, a protected class, you have

to have, like, non-basically discriminatory reasons for striking someone.

But if your reason is, I want to strike people off because of, like, immutable characteristics,

right?

I think that's what, I think maybe that's the language from the case.

Okay.

And that's, like, not constitutional, right?

That's, like, I think it's a violation of the due process under the 14th Amendment,

blah, blah, blah, blah, blah.

It's been a long time since I was in law school.

That was more than I expected.

What immutable characteristics were you selectively striking from your jury, Stamford?

What were you doing?

I was unconstitutional.

The prosecutor said, oh, my first three strikes were all single women.

And I was, like, what?

I literally, I literally had, like, a shot.

I was, like, I can't control it.

And I was, like, is that even, I was literally about to say, is that even a protected class?

Single people should be a protected class.

Justice for us.

Sorry, McKay.

You're protected in my heart.

I feel safe in your heart.

Okay, so you got baptized for striking single women.

Yes, that's what, that's what it was.

And I was just, like, so shocked.

But literally the first person to strike it, her answer to, like, the, do you have opinions

on guns?

Well, she was, like, 20 or maybe 21.

And she literally said, my senior year of high school, we had to lock down campus because

it was a school shooter.

Wow.

So I was, like, yeah, that person can't be fair and impartial.

And, like, other people had, like, not as dramatic as that, but, like, other people

had, like, bad answers to, like, their gun questions, to the gun questions.

Yeah, but the state says, no, no, no, no, it's not because she was locked down for a school

shooter that she's gone.

It's because she's a single woman.

I mean, yeah.

But those were your, you know, neutral reasons, I guess.

Exactly.

Okay, I think the case is race neutral, but this is gender neutral reasons.

Those would be gender neutral reasons.

And relationships are not as usual.

Yeah, yeah, yeah, yeah.

Oh, I forgot.

I did have one person who said there was, like, a civil rights lawyer that got on my jury

pool.

So I was, like, yeah.

Wow.

Great.

They didn't get stricken?

Prince George County's background is we're, like, around 60% African American, more or less,

and maybe, like, 20% Latino.

So this guy who's a civil rights lawyer, he was a white man.

So maybe it was just like, oh, who knows?

Yeah.

I'll keep him.

I don't want to take him off.

Okay.

Yeah.

All right.

So how do you feel about your jury at the end of the day?

You know, I got off the people that have really traumatic experience with guns.

You know, God bless their heart, but I did not want them to sign in this case that involves

legal justified use of a firearm.

Right?

Well said.

So after that, I think I had a good jury.

Do you know how client felt about the jury?

You know, it happens so fast.

I always tell clients, oh, blah, blah, blah, blah.

And I feel like they, unfortunately, I feel like they have no idea what's going on at all.

Yeah.

But, like, they, you know, there's always, like, one or two people that's, like, I need

that person on my jury.

So I think I got, like, one of those people on.

Well, if it's judge-led, it's hard, too, because all of the substantive conversation is

with the husher.

So client's not up there, right?

Exactly.

Yeah.

Client's not up there because client has the right to come up there, but the, you know, deputy

sheriff has to follow them any time they get up in the court.

So it's like, uh, for biased reasons, you're in this suit and look really nice.

Please just sit here.

So the jury doesn't see you being followed by, like, bailiffs.

I mean, the sheriff's deputies.

Yeah, I don't think I agree with judge-led one year.

It's the only for idea I know.

Stanford, I think you would be really good.

You'd be so good.

Oh, my God.

You have a good personality.

You'd be so good at connecting with people.

You would absolutely love it.

They'd be, like, not guilty.

They'd be, like, but we haven't done the tape yet.

But I digress.

So we're going into opening.

We're feeling good about our jury.

We have a civil rights lawyer, some women, even though you try to get them all off.

And so we're feeling good.

So tell us about the state's opening.

The state's opening.

All right.

The one weird thing about the state's opening was, like, they were talking about the, you

know, I'll say victim just because, you know, whether she's victim, that was not important

to my theory of the case, right?

She got shot.

Yeah, she got shot.

She's a victim.

She's a shooting victim.

Yeah, yeah.

But she was talking about how, like, getting shot is, like, painful and, like, the case

had nothing to do with her.

And then she even mentioned that, like, she didn't have health insurance.

So she's getting shot with pain.

Wait, the prosecutor said about this?

Didn't have health insurance.

Really?

Oh, my gosh.

Okay, that's objectionable because there's no way that evidence is going to show that

because why should the evidence show that?

I guess, like, yeah, it would be, like, objection relevance, but I guess you could testify.

I went to the hospital and didn't have insurance when they asked me for insurance.

But it was just, like, I was, like, why are we talking about this?

Right.

I mean, I think it's kind of good when they start to go off on these tangents and because

they think that jurors are smart and when things aren't, like, adding up, I think they

hold it against the state.

I do.

I think in the light most favorable to the state, I think what she was trying to say

is there's someone here who got, like, shot, so you should feel sympathetic to that person

when considering, like, whether my client is not guilty or guilty.

I think that's what she kind of was trying to go, but the way she presented it, I was

like, you know, and obviously I'm biased, but I don't think it was necessarily the most

compelling way to present those facts.

I've rarely heard a prosecutor's opening or closing that I think is a compelling way

to present facts.

So I think I'm just extremely biased.

It's all trash to me.

All right, so the non-trash, how's your opening?

You know, I love my opening.

I went for it.

I, you know, maybe people shouldn't do this, but, like, I'll say the way I did.

I, like, wrote my opening and then I, like, went into chat, GPT, and said, here's my opening.

Here's, like, what I think is going to be presented as evidence.

What tweaks to the opening do you think would, like, be useful?

Interesting.

Interesting.

So I've heard of people using AI on their cases.

I can't quite figure out.

I'm not, like, that literate.

I just asked, like, chat, GPT.

I'm like, does tuna have protein?

You know, make me a seven-day.

Yeah, exactly.

Make me a seven-day meal plan and a grocery list.

But, yeah, I haven't used it for work yet.

So that's an interesting use of it.

So what did chat, GPT, give you?

Anything good?

Yeah, I think it had, well, one, it's very complimentary.

So it was, like, your opening is already super good.

You don't even need my help.

There is no better hype person than chat, GPT, in my experience.

Yeah, I was, like, chat, GPT.

There is no less judgmental entity than chat.

You could ask it anything, and it's, like, oh, yeah.

Like, you ask your friend, they're, like, why are you interested in that?

You ask chat, GPT, they're, like, step one.

It's awesome.

Hey, let's do it.

Let's do it.

We'll be done by God.

Exactly.

Okay, cool.

So, yeah, what tweaks?

What tweaks?

I don't know.

I think, like, focus.

The one thing was I did mention something in my opening about the DNA, but then chat, GPT,

and my wife agreed.

Actually, my wife said it first, and chat also said it, so that's what I went with it.

Like, don't mention the DNA part of it.

Because even though I subpoenaed, you know, the forensics person, maybe I wouldn't call them.

So that was, like, important.

That was, like, one interesting detail.

But I kind of just.

Chat gave you that, too?

Chat, GPT gave you that, too?

Yeah, that was really interesting.

Okay.

And then, I mean, I think they liked my theme.

I tried to use.

I think I was using, like, alliteration, like, angry, aggressive agitators.

So, like, it helped me with a little alliteration in my opening about, like, that's me describing

aviancy.

Okay.

And what they were doing that night.

Yeah.

And then I kind of said, you know, what you're actually going to hear is the story of these

people.

They were out partying.

They were out drinking.

They then, you know, approached my client.

And my client, you know, they were, like, beating up my client's friend.

And my client had a decision to make, right?

And he chose, in that split second, to protect himself.

Because I was saying it's, like, self-defense.

But they was, like, they changed it from, like, self-defense to, like, protect himself.

Which is, like, I don't know.

Maybe it doesn't matter.

But I thought it was, like, a good, interesting way to put it.

I think, no, no, no.

I think it's more emotional.

Protect himself.

I think that kind of stirs more of an emotion than, like, acting in self-defense.

Yeah.

That's a great use of chat.

GBT is to take us out of cop talk.

Because we adopt the legal language of the state.

And juries just don't even clock it.

And chat GBT will non-judgmentally tell you that there's better way.

Yeah, yeah.

No judgment.

Okay, so you're feeling good about your opening.

Who's the state's first witness?

I think they call, yeah, I think it's A.

Talk about A's direct.

Can you remind us, is A a cop?

No, A and B are brothers, but A is not a cop.

Yeah, A and B are brothers.

But A is the brother.

B and C are cops.

I mean, A kind of says, like, at this place, it's the after party.

He does, like, mention, oh, yeah, they were coming from the club.

He does mention, like, you know, seeing missing friend and dapping him up.

And then he, like, talks about what happens.

And he's, like, trying to break up a fight between missing friend and, like, someone else.

But he does mention, he says, like, oh, and I was, like, just holding him back.

But then he, like, does the arm motion.

Kind of, like, his arms, like, forward and, like, upwards.

Kind of imagine, like, I kind of imagine, like, the 80s, like, in, like, an 80s movie.

When, like, someone's getting beaten up by both, like, one person's holding them up.

The other person's, like, just giving them, like, body shots.

Like a full Nelson type of situation.

Yeah, yeah, yeah.

But basically, he says, oh, I was breaking up missing friend from fighting with someone else.

But he puts his hands, like, in the full Nelson position when he says, I was, like, breaking it up.

Nice.

Check mark.

Yeah.

So I'm a little star and check mark.

Yeah.

That wasn't part of the cross, but then eventually, like, I did the same hand movement in my closing.

That's good.

That's far more than a break up.

That's good, because then your client could see that and think that these guys were beating up on friend.

Yeah.

And then the state tried to introduce his statement, like, his written statement, into evidence on direct.

His written statement?

And I obviously objected.

And then the judge was, like, what are you trying to do?

And she's, like, no, this is a probably consistent statement.

And the judge was, like, but he hasn't been impeached.

Right.

She's, like, wait, wait, I know this one.

I've heard of this.

It's a prior consistent statement.

Yeah.

So when I crossed him, I was, like, you know this.

This is your signature.

This is the date.

You know, this is the same date that this happened.

I was, like, where in the statement did you say you were, you know, pushing women?

It's not there.

Where in the statement did it say you were holding back, you know, missing friend?

And he's, like, I know what I wrote.

I was, like, but so just show me in the statement where you wrote that.

And he's, like, it's not there.

Yeah.

You know, I look at the jury.

I know what I wrote.

It's crazy.

Oh, the two good things that happened on direct were the state asked him about, like,

the ring camera video.

And he's, like, oh, yeah, yeah, yeah.

I, like, yeah, the state showed it to me, like, today.

She said, and I showed you this video previously.

And she was, like, yeah, you showed it to me, like, today or yesterday is what A said.

So the prosecutor said, I showed you this video previously.

So then she, like, plays the video and tries to introduce it.

And I let her.

But then A tries to testify to say, no, I didn't say pull that shit out.

I said don't pull that shit out.

So, like, the backtrack is on the video, you see the argument, you see client take out what

looks like to be a gun.

He has it facing downward at his side.

But then the guy, like, tries to grab him.

Someone in my client's voice says, don't touch my gun.

And he says, pull that shit out.

He's like, no, I said don't pull that shit out.

So I cross him.

I cross him the video.

And he basically says, all right, yeah, you can't hear me say don't.

He's, like, kind of sheepish.

You can't hear me say it.

But I did.

Great.

So we have two, like, awesome impeachment moments in this cross.

A is done.

A is done.

Who's next?

OK, so the next was his brother B.

Tell us a little bit about B's direct.

So B's direct was fine.

Kind of, like, the same thing.

But he basically actually just says exactly, even with the video, he says exactly what he

said on the scene.

OK.

That, like, he saw his client.

He talks him down with verbal judo.

He does other stuff.

Does he say verbal judo?

I think he does, actually.

I think he might have.

OK.

Yeah, he says that on the stand.

That's good.

You want a jury to hear that, because they're like, this guy.

So then I cross him.

So this guy I didn't impeach.

But basically, he says, like, oh, he basically says he turned around and was doing something

else.

Then, like, he, then the shots happened.

He didn't see it.

So, like, on cross, I was like, you were arguing with, you know, my, you know, I was

arguing with my client, DJ, and his friends.

No, I wasn't.

And, like, you and your brother.

And your brother was arguing.

No.

And they were, like, you know, pushing.

He's like, no, that didn't happen.

So, like, instead of just showing the video, I was just like, well, this is just absurd

on his face.

We've seen the video multiple times.

You're saying you weren't, like, arguing with him.

I'm just going to, like, let it speak for itself.

And so that's the strategy of not impeaching him with it.

You're just going to argue.

I was going to argue it in closing.

I already had hurt A a lot.

To me, on his face, at that point, we're both playing the video a lot.

So, he's like, we've seen the video.

We see them arguing.

And it's going to be in evidence.

They're going to have the video with them in evidence.

And I know B and C are off-duty police officers.

So, even though they are, you know, not, they're acting as civilian witnesses.

They're still trained.

I didn't want them to, like, be able to explain it away.

And A and B are linked, too.

Like, in the eyes of the jury.

Yeah, A and B are brothers.

Okay.

Yeah.

Well, I guess also biologically they're linked.

But, and in the eyes of the jury.

And so, A is shoddy.

And now, B is shoddy.

He's not impeached live.

But just what he's saying isn't tracking with the video they saw when A was on the stand.

Exactly.

And B was not in the room when A testified, right?

Exactly.

Exactly.

Okay.

And then, B, I did ask the open-ended questions to get in how tall him and his friends were.

So, I got that evidence in through him on cross.

They said 6'4"?

Yeah.

He said, I'm 6'4".

And my brother, I mean, well, I think he's at least tall to me.

So, he's at least 6'5".

I love when you're asking a witness a question and pride creates an answer.

That's way better for us.

Yeah.

I'm, like, almost 7 feet tall.

Like, 350.

It's a self-defense argument.

He could have been 5'5".

He'd be like, oh, I'm 6'7".

7.

I lift cars for fun.

Yeah.

Okay, so, B is also toast now.

Toasted.

No, no, no.

In flames.

Done.

Now, we're on track.

Who's next?

So, I think next came is C.

And then, this is funny.

I did have, like, a co-counsel, but she was, like, a fellow to her office.

So, she wasn't sitting next to me, but she was, like, helping me prep the case and everything.

So, she was, like, texting me throughout the trial.

So, at this point, my wife, who's a public defender, appeals.

She, you know, because she's appeals, she, like, works from home a lot, like, reading and writing.

She, like, watches half the trial.

So, now we're getting to the parts of the trial that she sees.

But the first thing she tells me is, you're texting too much at the defense table.

You got to put your phone away.

You don't need anyone else's advice.

It's sink or swim.

Stop texting people for their opinion.

I love that.

That's a good one.

Yeah.

Your wife is cool.

I love that your wife live texts you during the trial at the defense table, or told you during your life case, sink or swim.

Sink or swim.

She was, like, stop being nervous.

Because I was telling her, I was feeling a little bit nervous, too, with, like, I was, like, no, like, stop relying on others.

It's your case.

You got to, you got to, you know, you're the captain of your ship.

I was, like, all right.

Okay, third witness.

So, we've done A, done B.

Who's next?

Okay, next, actually, was the physician assistant.

What did she testify to?

It was funny, too.

She wasn't even the physician assistant that was, like, working with the victim, or that was, like, in the room.

So, she was on duty that day, but she wasn't even, like, the person in, but she was, like, talking about the medical records.

Okay, so she was, like, the custodian of record type of thing for the medical records.

And she's pretty much just saying that this person did get shot.

So, was there really any cross for that?

Not much.

I guess the important thing is that, like, theoretically, this victim could have been injured in some other way.

So, you want to establish that it was a bullet injury that caused the picture of what we're seeing of her, like, looking like she got shot.

So, I think that's why she's called.

What's your cross like on this witness?

Honestly, I don't think I really crossed at all.

I think I just asked a couple of questions.

And then, you know, I put in the, you know, thank you for saving lives with the jury.

Wow.

Thank you for your work saving lives.

She works in a drama unit.

Give the jury a wink.

Did you say that to A and B, too?

He's like, yeah.

I did not.

Well, A, I used to say that A was a military veteran, so I did thank him for his service.

Okay, okay, okay.

I don't know if I would do that.

Balance has a different style.

So, then you got the two, the A, the B, the physician's assistant.

And so, who's next?

Who's next?

I think the next person that was called was then the victim.

Okay.

The complaining witness.

And what is her direct like?

She says she didn't see who shot her, right?

Just that she was there and that, you know, the owner of the house was, like, kicking people

out because, like, there was some commotion happens in the party.

I think maybe missing friend getting into a fight inside the house.

So, she says that she's leaving and then she's getting pushed and she's telling the owner,

why are you pushing me?

I'm a female.

And then she just hears gunshots.

She, like, starts running, but then she hides behind a car and, like, realized she was hit.

It's interesting because this case, like, isn't really,

about her, even though she got shot.

Yeah.

So, it's not about her.

Yeah, that's kind of unique in a shooting case.

And she's honest that she doesn't know.

I only asked one question just to confirm.

Just to confirm.

You do not know who shot you that day.

No.

Yeah, that was it for my cross.

That's powerful.

Okay, then I guess this is the last state's witness.

It's C.

It's C.

So, C is interesting because he's the person who was closest to client on the ring camera

before they kind of go off camera and you hear the shots go off.

Honestly, he's, like, super casual with it.

Actually, there's, like, a side point.

But our notes, when he's being interviewed by the detective, he's, like, because he's

an officer and officer, he's talking to the detective.

He's, like, man, you seem kind of young.

He's, like, yeah, I've been only on the force for, like, three years.

Three years, you're already a detective?

He's, like, yeah.

And then the detective asks him, like, oh, do you want to be a detective?

And he's, like, I don't like writing.

I'm more, like, you know, I'm more of, like, you know, I like to do jump outs.

So, I like to do.

Oh, my God.

Yeah, because I like to do jump outs.

So, I'm trying to be on, like.

I kind of, like, I'd prefer to tase people.

I don't really like to write.

I'm trying to be on those, you know, special, those special units that do, like, the jump

outs, right?

That's not, like, a valid area of expertise.

I don't know.

It's, like, a very casual thing to say when you're being interviewed and there's attempted

verdict.

Right.

That's how he came off.

So, like, initially, I was thinking, all right, I'm, like, I really got to tear into

him because I'm really saying, I'm really telling the jury it's when he grabs the gun

that the gun goes off.

It's his fault.

But then he's, like, has that type of personality that just expresses, like, also his direct.

So, I'm, like, hmm.

So, I'm thinking.

And he's also really not hurting me that much.

He kind of also says, like, kind of, like, says my client's job, but he also says he didn't

see him shoot.

I don't know.

But then he did, on direct, say that, like, they went to the, you know, wedding.

They went to the club.

And then he says he fell asleep in the car on the way to, like, the half of Artie House.

Hmm.

Why?

Yeah, someone.

Yeah, super wasted.

And then he tried to say that, oh, he wasn't even outside of his car.

He was, like, inside his car most of the night at the after-party house.

And then he got out the car because someone was messing with, like, his little brother.

And then this situation happens.

So, he's trying to say, like, oh, I was sleeping on the way to the party.

I was in the car most of the time.

I only, you know, kind of woke up when I heard some people fighting.

Yeah, yeah.

But the best fact from that direct was, at this point, the state knows my theory of the

case, I think.

So, she asked C, where were your hands when the shots went off?

And he says, literally, word for word, I'm not going to hold you.

I don't remember where my hands were.

Wow.

Perfect.

Perfect.

You know, that's another, when you're taking notes, you start next to that.

Yeah.

Yeah.

You know, circle like, in closing, in closing.

Yeah.

So, you're planning on going hard on C, but now you're thinking differently.

So, what's your approach going into cross?

I mean, I start, I basically ask him, you know, were they drinking that night?

He's like, yeah, absolutely.

You went to the club, you got some shots?

Yeah.

And, you know, A got some shots?

Of course, I bought them.

C is an open book.

Yes.

He had, like, at least two shots.

Yeah, absolutely.

Three shots.

This is the pride thing.

He's like, yeah, I'm fun.

I'm cool.

Yeah, I love drinking.

He forgot where he was for a sec.

Yeah.

After he said he had the third shot, I was like, all right, let me not.

I think I got to know if he's drunk the jury.

I can argue for the jury that they're all drunk.

Right.

Honestly, that might have been, like, the best part of the cross.

So, what's important is, actually, during direct of C, she does try to introduce, no,

no, no, it wasn't C.

Well, she did with C, but with A, she tries to introduce the body cam, but the officer

recovers the firearm.

So, she's trying to bring in evidence that the firearm was recovered from your client

through an officer, or through somebody, but not that officer's body cam.

Through an officer's body cam, without that officer there.

Yes.

Okay.

And that person, and those A and C didn't have knowledge, or personal knowledge of this.

I mean, I guess she's trying to argue that because they were on the scene, like, when

it happened, they have personal knowledge, but they can't testify to the body cam, like,

how it's maintained, and, you know, it's uploaded, and I upload it, and I can recognize my body

cam because it has my ID number.

They can't do any of that.

They can't authenticate that.

Yeah.

All right.

So, that didn't come in.

So, that doesn't come in.

But I'm, like, I'm objecting, but I'm expecting it to come in when that officer comes.

But after C's testifying, I'm realizing, you know, I actually haven't seen, I've only

seen, like, really one officer here in the courtroom, and it's not that officer, or, like,

around this court, around the trial.

I'm, like, I'm arguing, like, all right, you know, once you get your officer here and

lay the foundation, I'm not going to say, like, this is, like, a doctored video or

anything, you know what I mean?

But, like, you've got to, like, lay your foundation.

So, then she just tries to, like, she tries to call the officer who just took it from,

like, the first officer's car.

And I go, objection.

This officer can't, you haven't laid the foundation yet.

She's like, oh, you just said you would, like, you know, stipulate.

I said, no, I said, like, once you lay the foundation, I'm not going to, like, argue

that this is, like, a planted gun, but you need to still have that officer.

Right.

And then she was, like, okay, I don't have that officer.

Yeah, we know.

Clearly, we don't have that officer.

Surprise, surprise.

So, they couldn't get in that the gun was recovered from the plant.

I mean, they couldn't, they didn't even introduce the gun.

So, we're arguing over this.

So, then, basically, like, well, if this can't happen, then the state rests.

You're, like, yeah, it can't happen.

So, the state does rest.

So, the gun charges, they can't prove the operability of that gun, right?

Does that go to those gun charges?

I guess because, like, the video, you can hear shots being fired.

That was enough for the judge to let it go to the jury.

That was enough for them?

Yeah.

I mean, I guess you get it circumstantially with the person who shot and all the hospital people.

Yeah, the hospital person says it was a bullet wound.

Something operated.

Yeah, something did operate into someone's leg.

So, then, state rest and you, what do you call it?

M-O-J-A.

Motion for judgment of acquittal.

M-O-J-A.

M-J-O-A.

M-J-O-A.

Motion for judgment of acquittal.

M-A-A-J-A-M.

Well, I was, like, super excited at first, but then I was talking to this more experienced

attorney in my office, and she was like, you know, it's, like, an interesting story about

the state resting and not getting the gun in, but I don't think it really matters to your

case.

You still got to call your client and get the self-defense instruction, and then, you know,

the jury watches the one-minute ring camera, so there's a gun involved.

And I was like, oh, I guess you're right.

Yeah.

But.

Trial delusion.

Almost got me.

But I did some great research, obviously before trial, but maybe also during that lunch break.

Both can be true.

About how the doctrines of transferred intent doesn't apply to attempted murder.

It applies to murder, but no other, like, assaultative crimes.

Really?

That must be in Maryland.

Okay.

Yeah.

And they basically, the way they, well, think of it like this, so think of it like this,

right?

Attempted murder is, I'm, like, you know, I'm trying to kill Dallas, I miss, and I accidentally

hit and kill McKay.

I'm sorry, you're dead, right?

My intent to kill Dallas transferred to you.

But with attempted murder, it's like, I tried to shoot Dallas and I miss, or I hit her and

she lives.

That's like attempted murder.

But they're basically saying, I tried to shoot someone, miss, and then I accidentally hit

this victim.

That's not like attempted murder.

It makes sense, because the crime is the attempt.

And so, if you fail, you fail.

That makes sense.

That it's just like assault of someone else.

Exactly.

So based upon that, we knocked out the attempted murder charges at MJOA.

Oh, so you knocked out the life charges in MJOA.

Yeah, the transferred intent argument.

Excellent.

Okay, so that's a big weight off your shoulders.

Wait, this is the first A-N-G successful MJOA, or Rule 29, or whatever you call it.

You know?

We salute you.

You know?

As Harvard people really know how to use Westlaw, right?

Yeah.

I kid.

I kid.

Okay, so transferred intent does not apply to...

Attempted murder.

Attempted murder.

Did you learn that?

And Judge agreed.

During lunch?

You know.

That's awesome.

It was one of those things where, as the facts are coming out, and as you guys are listening,

and some of the listeners are kind of listening, it's like, you know, all right, someone's

shot, but this doesn't feel like attempted murder.

It feels like not the right charge to what's happening.

Yeah, it never sounded right.

And I'm kind of walking through this, and I'm like, you know, this doesn't really apply.

And then I'm like, you know what?

Maybe there's case law that also, the sentiment I'd have.

So I would say, yeah.

I knew this.

I just didn't have the cases printed.

Yeah, yeah, yeah, yeah.

Right.

Judge, I know this.

So what are you left with?

So now we're left with assault in the first degree, assault in the second degree.

Oh, I forgot a charge.

Firearm use in the crime of violence.

Firearm use in, okay.

So there's a charge that says firearm use in the crime of violence or in a felony.

And the charge kind of sucks because it's a five-year mandatory minimum that can be consecutive

to the actual, like, felony or crime of violence that it's based upon.

Now, what was important for MJOA was there's only one count of this.

So the question is, was it firearm use in a felony or was it firearm use in a crime of

violence?

Well, we want it to be what?

We want it to be the felony or the crime of violence?

Felony because now the only felony left was assault in the first degree.

Okay.

But assault in the second degree, even though it's a misdemeanor, counts as a crime of

violence.

I know it's getting complicated, but this is important.

Yeah.

No, no, no.

You guys follow me?

We're with you.

I basically said, your honor, rule of lenity, because there's only one count of this and

it's like, you know, what disjointed, it could be like second or, it could be felony or crime

of violence.

The rule of lenity in a criminal defense case says, in this case, because there are two

crime of violences, but only one felony, it should be looked at as like use of a firearm

and a felony.

Can you say more about the rule of lenity?

Okay.

I said rule of lenity and like due process.

My client is not put on notice of what he's facing because it could be either or.

So then rule of lenity should go towards it being just the felony because there's only

one count of that versus two counts that could be crimes of violence.

And the rule of lenity is like, basically like something's unclear, but it's like in

a criminal defense, you should like lean to the more lenient, like interpretation to

the defendant.

You know, I guess in baseball, at first base, tie goes to the runner.

So like the rule of lenity is like tie goes to like the criminal defendant.

But like, if you look at actual case law, like does the tie really ever go through the

criminal defendant?

But there's like a case that says like rule of lenity exists.

So, you know, me putting on my thinking cap, I like threw that out there.

Yeah.

And the judge agreed.

Yeah, that's good.

You've gotten the attempted murders dismissed or acquitted.

Oh my God.

I'm stuck on that.

Yeah.

I know.

The trial ended at halftime.

And well, we're still going, right?

Because there's still the assaults, but the life, yeah, the life trial.

And then the five-year minimum, basically, firearm spec is now going to the felony assault.

It's funny.

Yeah.

At halftime, I've already beaten the, you know, plea offer.

Wow.

Yeah.

That's a win in and of itself.

That's the most productive lunch break I've ever heard of.

I just eat during my lunch break.

If you meal prep, we have more time at lunch for other things.

OK, so now we've had an extremely productive lunch and a very good halftime show.

So now we're on the defense case.

I think, you know, so it's my case.

So I even asked the judge, you know, Your Honor, before we volunteer my client on whether

he wants to waive his right to like, you know, self-incrimination, I just want to know,

you know, are we going to get the self-defense instruction?

And she goes, well, you haven't presented evidence to, you know, produce that instruction.

And so right now you wouldn't get it.

So I was like, all right, we're calling my client to testify.

So then you call client.

So tell us about client's direct.

So I just said before, client was always animated.

Like he'd like, he would yell, but not because he's angry.

That's how we talk.

On this, when he's on direct though, he was like so short, like no facts, no emotion.

He was just like, what's your name?

Name.

What do you do?

I'm a DJ.

I said, okay, you know, just people probably know, but what do DJs do for a living?

He was like, I play music.

Do you, is he trying to come off a certain way or is he nervous?

I think he's just nervous out of this.

He's just so nervous, you know?

So he's just feeling nervous then probably and giving you like not much to work with.

Did anything like notable happen in the direct?

No, I mean, he said he did what he did.

He said he took up the gun, his self-defense.

He had to point it downwards.

He said, don't touch my gun.

They charged him.

And he says when the guy like tackled him, grabbed his hand, that's when the shots,

that's when he heard the shots go off and they like beat him up,

kind of like fully Nelson him as well.

So he passed out for a moment.

When he got up, they told him to leave.

So he was like walking away.

Then they grabbed him.

He didn't even know someone was shot.

I was like, you ever point your gun?

No.

Did you ever shoot your gun?

No.

All right.

That was it.

Were you nervous about what was going to happen on cross?

Maybe.

I mean, I think it was one of those, you know, you got to,

my clinical instructor in law school said you can only play the,

you got to just deal with the cards you're dealt, right?

Sometimes you have good cards, sometimes you don't.

Yeah.

I just thought, all right, these are the cards we're dealt.

You know?

That's not, wife told me sink or swim.

So now a client's got to swim.

Think or swim.

Exactly.

Yeah.

Paying that advice forward.

So what was the cross like?

It wasn't too bad.

I mean, I think it was fine.

I think my client quit himself well.

There was one weird question where she's like,

and you took a nap.

And my client was like, all right?

What are you talking about?

Well, you took a nap, huh?

Oh, well, when you fell asleep.

Yeah.

When they choked me and I passed out.

Yeah.

That happened.

An involuntary nap.

Not too damaging then.

That was good.

Is there anything else that happened in your client's testimony?

Not that I can remember right now.

I think that's like, I mean, you know,

the story he told me at the beginning,

basically what he testified to there at trial.

So he's straightforward.

He's credible.

And you are going to get the self-defense instruction.

Yeah.

It matches the video.

Exactly.

Perfect.

Did you call any other witnesses?

I didn't.

Because the gun was ever introduced,

I wasn't going to call the forensics person.

And I also rested.

You rested.

Okay.

So client was your only witness.

So when you rest, do you renew any motions after you rest?

Yeah.

So that's when I would renew my MJ away.

But because we don't, we have Fridays,

we don't take evidence,

and we were coming back next week,

I actually like try to write a memo

to try to like argue even stronger on certain areas.

He's like, you know what?

Transfer to 10 also shouldn't apply

to assault first degree or second degree.

Or guns.

Yeah.

Maybe my superpower is no shame.

Because I literally, I literally wrote a three-page,

like a three-page memo arguing with this.

Good.

Oh, you gotta be like that.

Yeah.

You emailed it like Friday afternoon.

They were like, counsel, come on.

Nah.

Nah.

That's how you litigate.

Yeah.

You let them call the file.

You let them tell you no.

Yeah.

Yeah.

Yeah.

All right.

So denied.

That's fine.

So closing then.

Yeah.

Closing and then.

So who closes first?

So yeah, in Maryland, it's the state goes,

then the defense goes,

then the state gets a rebuttal.

And how's your client doing at this point?

You guys are pretty much a week into trial.

How's client?

He's doing well.

He's doing well.

You know, he's on like this,

maybe the second or third suit I got him in at this point.

Yeah.

At one point he goes,

hey, I get to, I get to keep this suit, right?

Okay.

So he thinks he's winning then.

Yeah.

Yeah.

He's like,

I'm definitely going to have many opportunities to wear this.

After he won that MJ away, he's like,

all right, I'm going to need these suits for when I get out.

After witness, he is like, I'm fun and drunk.

He's like, I'm keeping the suit.

Yeah.

So that's what happened.

So the state does their closing first.

The state goes, and I think it's like, it's bad.

They literally pick up, well, she starts off bad,

where she picks up the like jury instructions.

And she basically just like starts reading off.

Because, you know, we pick the jury instructions.

It's printed out.

The judge reads them, right?

You know, reasonable doubt means this.

Reasonable, blah, blah, blah.

This is what attempts mean.

This is what, like, but then she starts going through,

because I guess they think they have to prove

all the elements of the charges.

That's what they have to do.

But they think it's then compelling

to like literally read every element

from the jury instructions that's printed in front of them

that they're going to have in the room

and that the judge literally just read

five, ten minutes before you started.

So she's doing that.

She's not creative.

So when she was doing that, it wasn't very compelling.

But then there was a point in time

when she stopped doing that

and she started saying some things

that I think were more compelling

when she like literally went away

from like this printed out document

from the jury instructions.

That was her first close?

That was her first close.

Cool.

All right.

And then so let's talk about your close.

Take it away.

I just want to give you my first paragraph on my close.

Let's go.

I say, at the heart of this case

is a simple but powerful truth.

Client acted in self-defense.

He did not seek out violence.

Violence came to him.

And in the moment,

faced with threats and agitation,

he did what any reasonable person would do.

He tried to protect himself.

So like that's how I started it.

Right?

Yeah.

And then I said, you know,

they're trying to do these things.

But like, let's step back

and look at the real facts.

Look at the, like, look at their credibilities.

It's 4 a.m.

They were drinking heavily.

And there's like all these other things

like attacking the witnesses.

And then I say, you know,

and you heard, you heard C on the stand.

When they asked him,

where was his hands

when he took,

when the gun,

when the shots went off,

he says, I don't know.

And then I put my hands up

and I said,

that's a confession.

That's good.

Is that him admitting

that he's the one who fired the gun?

I'll use his own words

when taking shots.

Absolutely.

That is good.

So, yeah.

I know.

I'm getting inspired by you

to like use some of this stuff.

Yeah.

Can you send us that?

Yeah, yeah, yeah.

Chat GPT.

I'm going to use it on my theft trial.

And this.

Yeah, that's great.

That's a confession.

That's really good.

So I just went through that.

I went through all those things.

And then the last thing I always do

is, you know,

when I'm done speaking with you,

the state gets to speak with you again.

And maybe the judge

is going to explain you

some things about the law.

But neither the state

nor the judge

get the last word in this case.

I say, you do.

You do.

You do.

And those words are not guilty.

And then I sit down.

That's good.

Great.

Powerful.

That's good.

Yeah.

Those words are not guilty.

I like that.

That's good.

Another thing I might use.

Yeah.

Yeah.

And then you leave them

on that good note

and then the state ruins it

with their rebuttal.

Yeah, all right.

Lock in for the rebuttal.

What's it?

One hour, two hours?

Yeah.

Okay.

So that's the one thing.

Her rebuttal was like

longer than her first closing

and my closing combined.

That's how it goes.

Yeah, it's always so long.

I feel like prosecutors

don't prepare for their rebuttal.

So it just becomes

this long-winded,

like circular,

angry argument.

Yeah, yeah, yeah.

And they're cornered at that point.

Was that your experience here?

Yeah, they just foil, foil.

Yeah, they're cornered.

Yeah, I will say

it was long-winded.

I think she actually came off

like super strong

and then I thought

she was going to stop

and then she just like

kept going

and I was like, yes.

And then it became

like long-winded

and like lost focus.

But I was like,

her first like five minutes

of rebuttal.

I was like, man, damn.

Fire.

But then she kept going.

And I was like, okay, great.

Yeah, yeah, keep going.

I'm not even going to remember

how this started.

I'm not even going to remember

how it finished.

Exactly.

I think that was helpful.

People are just going to remember

how bored they are.

Yeah, yeah, exactly.

So then at the end of close,

how's your client doing?

You know, he's feeling good.

You know, after,

after, you know, closing,

he's like shaking my hand.

Yeah, yeah, we got this.

We got this.

Wow.

And then, yeah.

I mean, he's like,

he's like happy

but now it's like the awkward

like waiting.

Yeah.

How do you feel?

I feel,

I honestly,

not that the life charges,

I'm feeling like pretty good

at this point.

Yeah.

Yeah, that's major.

What was it called?

And the whole,

I got the whole,

the firearm use

and crime of violence things

like set up well.

So I think I'm good.

Yeah.

Do you remember,

did the jury have questions?

They had one question.

What was it?

They asked for,

can we see the criminal statue

for where carrying

a handgun on person?

Where what?

Where carry or transporting

a handgun on person?

They wanted like

the criminal statue.

Like the definition

of possession essentially

of a firearm?

I guess.

Like,

so they had the charge

and they had the jury

instructions for it

but they said,

can we see the actual

like criminal statue?

Oh, okay.

Did you guys give it to them?

No.

Yeah.

You're like the prosecutor

read it to you 10 times.

Yeah.

Yeah.

Oh,

one thing I also cleverly

said in my clothing

because no one,

yeah,

now it's all coming back to me.

I said,

and I thought I was,

I thought this is probably

50-50 you could get

objected to

but as you said,

I just asked for everything.

Yeah,

I just,

you haven't heard

any testimony

that my client

is prohibited

from possessing a handgun

and you haven't heard

any testimony

that this firearm

was illegally required

and you haven't heard it

because it's not true

and I said,

because my client

has a second amendment

right to protect himself.

Yeah.

That's not objectionable.

Oh,

that's good.

That's like,

yeah.

Yeah.

No,

that's really good.

I mean,

it's the correct

resuscitation of the law.

It's not quite relevant,

right?

So it's like,

not really what the case

is about

but I think it works

because you get

the people who are like,

you know,

if you have any

conservative gun people.

Don't tread on me.

Yeah.

Yeah.

Yeah.

Yeah.

You have a constitutional right

to have that gun on him.

Yeah.

Yeah.

And it really matters

to juries too

because jurors really care,

I think,

about past records

and jurors really care

who's allowed

to have a gun

and so any way

to get that into evidence

even by implication

is powerful.

You get a question

and then after that

you get the verdict.

Yeah.

You get the,

so when you get the news

that there's a verdict,

what do you feel like?

I'm like,

all right,

it's the verdict.

Let's see what it is.

All right.

Okay.

So you're ready to hear it.

And then so the background.

Are you nervous at all?

Are you nervous at all?

Like,

I feel like

you're calm,

cool,

collected during this whole thing.

It's just levitating.

Yeah.

I was like super nervous

going into it

but then once the trial started

and once I threw my phone away

and stopped asking for advice,

it was just like,

all right,

it was all instincts.

Yeah.

How's your wife doing?

She's been on this rollercoaster

this whole time.

How's she doing?

Oh,

so yeah,

so she was there

for the state's closing

and my closing

but she texted me

like your closing is so beautiful.

I was crying

and she was just like,

like I said,

I was in,

I was declared a remission

in May 2024

so this is like April 2025.

She's just like,

oh,

it's just like so shocking

to see how much like

life has changed

within a year

for the better.

Side note,

she's pregnant

with our first child.

Oh my God.

Congrats.

Oh my God,

so many good things.

Wow.

It was just like,

it was just like,

it's just so good

to see you like doing the law again.

She's like,

I mean,

I think other cancer fighters

can say that

like even afterwards

like people have fear of relapse

and like,

you know,

something like you don't,

especially I guess

like if you're a young adult,

if you're in your 30s

getting diagnosed

so that you don't expect it.

So it's like,

I guess she said,

I've been so nervous about things

and like maybe not fully myself,

but she said watching me in trials

like the first time

I was myself again.

I don't know.

It was just like a beautiful moment

and then I was like tearing up

reading her like text messages.

Yeah,

yeah,

yeah.

Yeah.

I mean,

that is,

that is amazing.

I guess we were both crying

and like texting each other

during deliberations.

But,

so the way the verdict sheet is written

is that the way jury instructions work

is for when it's like

a first degree assault with a gun.

It's,

these are the elements

of second degree assault

and then in order to find

defendant or guilty

a first degree assault,

you have to say that

these second degree assault

happened with a gun,

basically.

Okay.

So the first verdict charge

is like we find,

you know,

DJ,

is he,

do you find him not guilty

or guilty for assault

second degree,

right?

So they read it

and they say not guilty.

Not guilty of the second degree.

Second degree.

So I'm like,

that's great

because I know that means

second degree not guilty.

That's first degree.

They don't even answer that question.

They skip that question.

That's question two.

And then question three

is firearm use

and a crime of felony.

So they skip that as well.

So I know firearm use

is also a not guilty.

So I'm like,

once I hit the not guilty

to like second degree,

I'm like,

let's go.

Yeah.

You know what I mean?

And a small part of me

is thinking,

all right,

I'm probably going to go down

on the reckless.

Then they say,

okay,

reckless,

like generally,

not guilty.

Reckless as to,

you know,

the victim who got shot,

not guilty.

Okay.

I'm like,

oh,

all right,

let's go,

let's go.

And then it's like,

where can you transport

a firearm?

Guilty.

Where transported

a loaded firearm?

Guilty.

What did you feel like

when you heard

all of those verdicts?

Honestly,

I was like,

let's,

while this is happening,

I'm like,

let's go.

And then client is like,

literally smiling

and like trying to like

dap me up.

Yeah.

Wait until the jury leaves.

Yeah.

I mean,

whatever.

At that point,

they already have a verb.

Dap him up.

Who gives a shit?

You know,

the foreman is turned

in their paper.

Doesn't matter.

They can't get it back.

Yeah.

So then what is,

so after it's all said

and done and he's guilty

of two charges,

how does client feel?

It was,

well,

those two charges merged.

So it's really just one.

Perfect.

But so he's like super excited.

And then basically,

you know,

we thank the jury for the service.

They walk out the courtroom

and then basically

we have something called like,

you can do like a pre-sentencing

investigation.

Some people call like

a pre-sentencing report,

blah, blah, blah.

So like a long form one

probably takes like 90 days.

Right.

And then for the short form

we'll just be like

checking the record check.

So basically the prosecutor

asks for like a long form,

you know,

pre-sentencing investigation.

And the judge is like,

no,

he's just found guilty.

And I was like,

you're on,

he's just found guilty of this.

I think his guidelines would be

in Maryland,

we have sentencing guidelines

like the federal statute does.

It's based upon your prior record

and like whatever

you're found guilty of.

Is it binding

or is it a recommendation?

It's a recommendation.

Oh, okay.

But when the,

I think when judges

have to put in the,

you have to put in the guidelines

for every single criminal conviction

and then judges

when they sentence,

if they go above or below,

they have to like check,

check mark

or reason why they did it.

So they usually just follow it

because they don't want

to deal with it?

Yeah.

I tell my clients 85,

90% of the time,

you're going to get

a guideline sentence.

Okay.

Okay.

So I tell the judge,

your honor,

I think just misdemeanor

firearm possession,

if you have a minor

or no prior record

is just P to two.

So probation to two years.

And I said,

he's been in,

you know,

since mid October.

So I think he said like six months

or seven months at that point.

So,

I mean,

you know,

time served would be guidelines.

And she's like,

yeah,

we don't need a full,

we don't need,

we don't need to wait 90 days.

And then she sent a day

for sentencing

like two weeks after,

that's like the postscript

that maybe he's not as happy.

I know.

I never want to be the downer.

Sometimes when I listen to the pod

and it's like,

oh no,

there's a downer at the end.

I don't like it.

Yeah.

But it's just honest.

Yeah.

And the exposure is so great

on an attempt

that sometimes we just try

to get people

on whatever they can.

Right.

Well,

before,

so before we talk about

the sad postscript,

let's talk about the happy stuff.

Yeah.

Yeah.

Let's get to it.

You set your,

you set your sentencing

out a couple of weeks,

you know,

what's your conversation

like with the client

right after?

Honestly,

sometimes it's happening so fast.

He's like happy.

He's like dap me up.

He's like,

yeah,

we're like super excited.

We're like having that like,

you know,

that like chest bumping.

And then the deputy's like,

all right,

I got to take him back.

That's the deal.

He doesn't get out.

He has to stay in

until sentencing.

He's going to stay in.

But like sentencing's

like two weeks away

and then,

yeah,

yeah.

When there's an acquittal

on a jury trial

where someone's incarcerated,

you feel like they just get to,

like when you walk someone,

you feel like they get to walk.

And they don't.

They still have to be processed out.

Yeah.

Now let's talk about sentencing.

Two weeks later,

you go back

and you ask for time served.

Yeah.

So the maximum penalty

on that firearm possession charge

for the misdemeanor one

is five years.

So at first,

the judge says

five years

to spend all but three.

So two months

before this incident happened,

he had something called

a deferred sentencing

like agreement in D.C.,

which is like,

I guess it's like

you technically plea,

but if you do like

anger management

or you do community service,

when you come back

at sentencing,

your charges will be dismissed.

Yeah.

Right?

I don't, yeah.

I don't know what the equipment is.

We have that too.

Yeah, yeah, yeah.

So he had that in D.C.

So technically,

I think he arguably

had no record, right?

So that's his guideline

should be probation

in two years.

The problem is

the judge was like,

okay,

but he knew

he should have been

back in court anyway

and then he had a gun on him,

right?

So the judge says that

and then me,

I'm kind of like,

once again,

just asking for anything.

I'm like,

your honor,

if you're actually,

if you're going to do executed time,

would you do 18 months

because then he can stay locally?

And the judge is like,

okay,

I'll do that.

Five years to spend all but 18.

And she's like,

well,

I want to do 18 more months.

So then she adds like,

whatever seven months he adds.

So she basically does five years

to spend all but two credit,

two years credit

for the six months

he's already served.

Okay.

Oh, okay.

So he still got to stay locally.

Yes.

50-50.

Okay.

And he got,

he got a year and a half

pretty much.

A year and a half more.

Yeah,

he basically got a year and a half

more technically,

I guess.

Okay.

And then he has to be on probation

for five years

or like less.

I think three,

I think three years

of probation actually.

Three years of probation.

Okay.

So honestly,

it is kind of a heavy sentence.

Yeah.

Yeah.

It is kind of a heavy sentence

for a misdemeanor gun charge,

right?

Yeah,

that's how it felt.

But then when I went to the office,

that same attorney was like,

well,

he was facing life.

Yes.

Yeah.

Like life to,

you know,

18 months in jail

is not so bad.

No,

but it's both

because yeah,

judges,

if they have anything

to hang a hat on

when you've just acquitted

the main charge,

you'll get slammed on him.

Sometimes.

Yeah.

I mean,

that judge still probably thinks

he's guilty in her mind

of attempted murder.

So,

you know.

Let's see.

I mean,

I mean,

she did change her sentence a bit.

She lowered it

from what she initially said.

And then,

a part of the postscript

is that in Maryland,

you're parole eligible

after 25% of your sentence

if it's nonviolent.

So,

even though it's gun possession,

he's like basically

like parole eligible now,

more or less.

Okay.

So,

I think there's a good chance

he's going to be getting out.

I mean,

much sooner than like 18 months.

Okay,

great.

Great.

Well,

all in all,

what a great trial.

Thank you for sharing that with us.

How long have you been a public defender?

I started August 2017.

So,

eight years.

I'm in the sweet spot.

Yeah.

Centering the eight years

that David says,

you know,

eight to 15,

I think is his sweet spot,

right?

Okay.

Do you feel like you're in the sweet spot?

Yeah,

yeah.

I think I definitely,

you know,

I've knocked off the rust.

Yeah.

So,

I'm definitely at the point

where like I have skills,

I know what I'm doing,

I have confidence in what I'm doing,

but I'm mostly not like jaded

and burnt out and cynical.

Only a little bit.

But that is,

yeah,

that is a good sweet spot.

Yeah,

you've got that energy.

Exactly.

That fight.

Yeah.

I think you can be like,

I think it's easy to be jaded and cynical,

like in the,

you know,

in the micro,

but still in the macro,

not jaded and cynical.

Yeah,

yeah,

exactly.

You know,

like in those interactions with clients

where you're like,

come on,

like just.

Yeah,

exactly.

Please help me out.

Help me help you,

buddy.

I'm not going to lie.

I have some of those micro moments sometimes.

Yeah,

I think it's hard not to.

So,

yeah,

perfect transition.

This is the point of the interview

where we ask our guests

what we call the ultimate question.

Why did you want to become a public defender?

Yeah,

yeah.

So I knew this question was coming

and I already like kind of prefaced it before,

but like literally when I was diagnosed

with cancer last year,

you know,

I'm crying and,

you know,

you're contemplating life.

So like to answer this question

differently,

I thought like,

you know,

if this is the end,

I'm like proud of like what I did

on the earth,

right?

I'm proud that like I represented people

that are like have this like lack of bargaining power

that are like putting these like bad situations.

And,

you know,

even like some of my clients like found out,

I even had like some former clients

like hit me up like,

hey,

I found out these moves,

I'm praying for you.

You know what I mean?

So I just thought like,

it was like one,

I think it's just a meaningful thing to do

and that's why I still do this work.

I think,

you know,

I wanted to become a lawyer.

I say it all the time.

I said it when I signed up.

I did run for office in 2022,

but lost.

But I decided to become a lawyer

when I learned about like Thurgood Marshall

during Black History Month

in elementary school.

And so I wanted to be a lawyer to help people.

When I got to law school,

I was like,

there's a lot of people that look at me like,

you know,

black and brown men

going through the criminal legal system.

So I wanted to like fight with them.

Yeah.

And I'm very proud of that work

and it's like meaningful work.

Yeah.

Yeah.

No,

just a phenomenal story.

And so well said.

I think you're,

what you just said about

how our clients just have a lack

of bargaining power.

And what we do is to try to

remotely level that out.

Yeah.

Yeah.

Some days we succeed, right?

And that day you did.

That day you did.

Yeah.

Good shit.

Good shoot.

Good shoot.

Yeah.

Yeah.

Good shoot.

No,

just phenomenal.

Yeah.

Thanks, Stanford.

Yeah.

And we'll see you back

for another NG,

I hope.

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.