Psych Meds & Reefer & Beer, Oh My! – When the State Mixes a Cocktail of Nonsense

Here at Another Not Guilty, we appreciate your support. Don't forget to subscribe or follow us. And please visit our website at anothernotguiltypod.com. Without further ado, here's this week's episode of Another Not Guilty.

It quickly turned from like just a little love tap, a little fender bender to wait a minute. So my client went a little over here, reversed all the way over here, came back and then hit you? You know, I don't even know what Sarah Quill is.

I know this city attorney just looking at him, he doesn't know what Sarah Quill is. Your Honor, what is this stuff?

So this 28-year-old officer's up there, head tilted back, hands at his side, the whole jury watching intently.

I hold the phone out so the jury can see my finger on the start button. And then I go, "Are you ready, officer?" He goes, "Yes." And now, begin.

Welcome to Another Not Guilty. I'm David Moore.

Here, along with my fellow public defenders, presenting to you the untold stories of the criminal justice system.

Objection! That assumes there's justice in the system, which there ain't. I prefer calling it the American criminal system.

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

In an unjust criminal system.

With a deck stacked against us.

Another Not Guilty.

Welcome back to Another Not Guilty, guys. Thanks for listening.

Today, we have Steven, co-hosting for us today. What's up, Steve?

Hey, David. Great to be here.

Thanks for having me.

I'm really looking forward to another great show, another great story, and another Not Guilty.

Not Guilty.

That's right.

And if you guys remember Steven, he also played the part of Mooch in episode 15 of season one.

Some of my finest work. At least that's what a lot of people have told me.

That's true. And a lot of people said you peaked back then, but I don't think so.

We all have our peaks and valleys, and we'll see where I'm at right now, today.

Right.

We'll let the audience be the judge.

Okay, man. Well, I'm glad to have you here, because you're really good at just picking

out the little details. Because we all know the Mooch is in the details.

Yes. Yes. All into those details. Every last one of them.

And any defense attorney is always good at picking up the details.

And today's public defender with us is Peter, man. How you doing?

I'm doing well. I appreciate the invitation, man. I'm really looking forward to telling my story.

So, Peter, what was your client charged with?

So, my client was charged with a driving under the influence charge, except it wasn't just

straight alcohol. It's what they call a G or an F count, 23152F, which means that somebody was

driving while impaired under the influence of both alcohol and drugs. It's like alcohol,

but a combination of other things. A little bit of everything, right?

A little bit of everything. Okay. So, what did the police report say then?

So, when I got the police report, it said that officers had responded to a call at Florence

and Normandy, the famous intersection, or infamous, where I believe Reginald Denny was beat up way

back in the day. The police report said that there was a traffic accident at Florence and Normandy,

and that somebody, the person who had been hit, called 911. And my client, the police report

said he was making a left turn off of Normandy, waiting for the intersection to clear. And instead of

going forward, making a left, he put his foot on the accelerator, apparently, and went in reverse

for, I guess, a pretty substantial distance.

And during the trial, it turned out to be somewhere between 15 and 50 yards, and crashed into a car

behind him. And when he crashed into that car behind him, the person who was hit,

gestured to him, "Hey, you gotta pull over." And my client went ahead, and apparently he pulled

over into an intersection at a Pep Boys, at which point law enforcement responded.

And what time again was this?

This was, I believe, four o'clock on either a Thursday or a Friday afternoon.

Oh, okay. So, kind of not the most, it's kind of an innocuous time, time of day. Because usually,

I mean, you get those DUI reports, and they say, uh, they all, they, they, the joke is it's,

they all happen at 2:00 AM, 2:00 AM or so, on the way home from the club, by the way,

on the way home from the bar. But here he is, four o'clock in the afternoon.

Friday, yeah, Friday afternoon, just trying to get home from work after a full week.

So that, and I guess it's pretty crowded traffic wise. It's, it's quite crowded at Florence and

Normandy on a four o'clock on a Friday. So, the police report, uh, said that, uh, officers responded,

that the person who was hit was pretty upset, and had on the 911 call said, you know, this guy just

hit me. I think he's drunk. Um, he, oh, he also, on the 911 call said, uh, he's, he tried to leave,

but he didn't. He told me he was drunk and didn't want me to call law enforcement.

Police report also said that when they responded, uh, that my client was there next to his car,

and that he was compliant. And, uh, among other things that, uh, number one, uh,

he failed the field sobriety tests, which is pretty typical.

Yeah. Odor, odor of alcohol and or other substances, slurred speech, the smell of alcohol,

all the requisite standard emanating from his breath in person.

Yes. Even though I've never in my life smelled alcohol emanating from the breath of a person.

I think maybe I've smelled whiskey, you know, like the other components that go into it,

but the alcohol. Right. The alcohol is, alcohol is odorless. I mean,

anybody that's, that's being honest is, the alcohol is odorless. What you smell when you're

smelling alcohol are the things that you mix into it. The, the cranberry juice, the, the, um, the

whatever, whatever you're, whatever you're mixing it with. So when they say that they smell alcohol,

it's totally disingenuous.

So the police show up and, um, you know, you have the complaint witness, uh, who the person was hit. He

points out where he was, where he was and what happened. And the officer gets out and he starts

to, uh, he immediately, like he said, he detects the, the presence of alcohol. He can smell it. He orders

my client, uh, to go walk over to an area of the parking lot and my, and he asked him a, uh, a variety of

questions. They asked him, have you had anything to drink? He said, yeah, I had a beer with lunch.

They said, have you been smoking any, done any other drugs? And he said, yeah, I smoked some

marijuana like eight hours ago when I got up and that was it. And then they say, are you on any other, uh,

prescription medications? And he says, Seroquel. So these are the, uh, alleged intoxicants that he's admitting

to then, uh, they have a timeframe for when he took any of these other things. Interesting.

The Seroquel, all we have is a, the word Seroquel in the, uh, chart or in the, uh, preliminary box

that says any medications and the officer hand wrote in Seroquel and that's it. There's nothing

about dosage or whether he's on it or why or when nothing else, just that one word Seroquel in the box.

Regarding the, uh, the beer that he had, he said it was lunch. So noon, this is four o'clock. So

four hours previous. And regarding the marijuana, he said, when he got up, I guess, waking up and

smoking marijuana. So eight o'clock in the morning, eight hours before it's called waking and baking,

waking and baking. I'm not familiar with that term. So, so there you have three, uh, potential

intoxicants. Uh, and then he starts to, the officer starts to proceed to do the field sobriety test.

And it's worth noting that generally, uh, this particular law enforcement agency has what they

call a drug recognition expert show up at the scene. If they're not qualified to recognize the

presence of drugs and other people, they have somebody come who's qualified to recognize the

presence of drugs and other people. And they're called drug recognition experts. This officer who

conducted this entire field sobriety test, he was not a drug recognition expert. And they didn't call

one in. They did not call one in. And that became a, uh, a point of contention throughout the trial.

Wow. They end up, uh, giving, doing the, what they call the pass. First of all, uh,

the preliminary alcohol screening test, which is that little plastic device that they give you,

uh, that they offer you as an option to go ahead and just take to see if, you know,

they need to continue their investigation for alcohol that you blow into, that you blow into it. It's

optional. Right. But just say no guys, they sort of gloss over that fact. Usually that's optional,

that it's optional. Very few clients seem to think that it was optional. So, and based on the candor of my

client, he doesn't think anything's optional at this point. Right. Even not telling the truth

doesn't seem to be optional or even not disclosing everything. So his preliminary alcohol screening

test when he blew into this plastic device came back as a 0.01, 0.01, very low levels of alcohol,

almost trace levels. Right. It was four hours ago. Almost shockingly consistent with what he told the

police. Perfectly consistent with what he told the police. Later on, he does the computer or the

actual one at the station and he blows 0.0. So, so he does the pass 0.01, 0.01. Then he, uh,

starts to do all of the requisite, uh, field sobriety tests like the walk and turn, the, uh,

I don't know, hand, finger, the nose. So he fails them all and everybody fails them all. I, I really

feel like everybody fails them all. In fact, I'm so certain of that, that, uh, when I was first

introduced to these tests, I was with a bunch of friends one night learning about them and I just

wanted to test them out on some people and see how they did. Now, these are people, you know,

the normal population has never even heard these tests. So you have to kind of explain it and think

about circumstances where an officer on the side of the road is kind of quickly regurgitating these

tests in a formulaic manner. They're kind of difficult to understand the first time around.

There's a lot of, and what's important too, is the fact that one of the things that they're testing

you on the officers, they're testing you on how well you are fall, are able to follow instructions.

But if you're not being, if they're not explaining the test clearly, if they're going through the

motions, if they're being vague, or if they're just being quick about it, any mistake that you make

is going to be attributed to you and not to them, because obviously they're not going to admit that

they made a mistake. And so, and not only that, you're under the stress of, "Hey, if I bungle these tests,

I'm getting the bracelets on." So put that pressure on top of it, and I mean, it's again, the deck is

stacked against you.

So I do this with some friends, and I'll tell you, even the things that are being asked are very

challenging. Heel to toe, not as easy as you think. You know, if you're maybe have any sort of internal

injuries or you have any sort of physical ailment, supposedly the alphabet test is an inducement for

you to say, "Come on, officer, I couldn't do that if I was sober."

Hey, this is David. Hope you're enjoying this podcast. And if you are, please do us a favor and

subscribe to or follow us on whatever podcast platform you listen to. And don't forget to find

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Can you tell us about your own scientific studies you did? You're hanging out with friends?

Like, where? Like, at a bar? Or what were you guys doing?

So I'm at a friend's house, and I'm just reviewing material. So I say, "Hey guys, do me a favor.

Somebody here, uh, for instance, this thing called the modified Romberg. Do me a favor." And we

haven't had any cocktails yet. Or maybe she's had a half a glass of wine. And I say, "Do me a favor.

Come here. When I tell you to start, I want you to tilt your head back, put your arms at your side,

close your eyes. And when I say start, internally, without saying anything, count to 30. And when 30

seconds has elapsed, 30 seconds. So counting to 30 internally means one count, one second. Count

internally to 30 without talking, and tell me when 30 seconds has elapsed." So I have a girl who knows

that I'm, what I'm learning, studying for. And she tries to do it, and she comes up with like 38 seconds.

38 seconds. She says stop, and she stops at 38 seconds. It doesn't seem to be very close to 30. I

have somebody else try 45 seconds. I'm like, "Wow. So don't do, don't do a dry run of this. You better

practice this modified Romberg before you start doing it for an officer at the side of the road."

So I knew that this was kind of a challenging task. I also read that, you know, I want to know what

constitutes successful execution of the modified Romberg test. And I've seen that one time, it was

generally accepted that plus or minus five seconds. So if you could, your internal clock could calculate

30 seconds reasonably within five seconds, either 25 up to 35, then that's somewhat qualifies as

successful execution of the modified Romberg. I've also heard that that's kind of changed, and it's now

10 seconds. On each side. On each side. That's what I, that's what I've heard. 20 to 40, right?

Now that to me with my friends, okay, at least one of my friends passed and one didn't, you know,

that's a little bit more, that's a little bit more realistic. So I had a general idea of how difficult

something like this might be for somebody who's never even attempted this test. So needless to say,

I had a pretty good idea of what qualified and what to look for. And you know, that, that was my

unscientific study of the tests. So then your, uh, your client fails the field sobriety tests.

He does, he does these tests. He fails the walk and turn. He fails the, uh,

one legged foot stain. His modified Romberg, uh, came in at 35. And I was pretty happy with that.

Good. That's what I'm talking about. That's a successful execution of that. The other ones,

I didn't have a whole lot to go. He failed everything. Okay. Now, how, how old was your

client? About 43 years old. Okay. Any like health issues, physical impairments, anything?

Uh, no, no. He seemed to be in pretty good shape. I'd say he was probably six to one 85. Um, my,

you know, Seroquel obviously is indicative of some sort of health issues, potential health issues or

neurological issues, but physically, no, no, he was good to go. He had his, you know, Laker hat,

nice gold chain. He's ready to go. Was there a body worn video of this? Oh, that's such a great

question, Dave. And, um, fortunately for me, there was not body worn video. Oh, okay. Yeah. No body

worn. No drug recognition expert. And initially when I read this report, I said, you know what,

if I'm going to trial with this guy, I'm thinking I'm going to operate under this, uh, kind of

assumption. This will be my strategy. Not only was there not a drug recognition expert, but clearly

this officer is not even an alcohol recognition expert because he's wrong. He's dead wrong. He's

saying my guy is impaired under the influence of alcohol. Yet these scientific tests indicate that

he's not. So, and let me ask you this, did they do these other fields, right? The walk and turn one

leg, horizontal gaze. They usually do those before the preliminary alcohol screening test, right?

I believe they did. Yes.

Yes. So they didn't know. Yes, you're right. So they didn't know that he was only a 0.01 at the

time they're doing these tests. Yeah. Actually, that's great. That's a great inquiry. Yes. They

did not know. They're just, they're, they're just checking the box here. Because at that point,

when they're doing those tests, they hear this guy say, I, they have an admission that he's consumed

alcohol within the past few hours, smoked marijuana is taken some other prescription drugs. And at that

point, before they've done any of the tests, their mind is already, this dude is deuce. He's going in

all of this testing is pretty much just going to be just going through the motions. They're just going

through the motions. They've already most likely made up their minds. If they're really being honest,

they have made up their mind. They've heard this guy say that he's done three things,

uh, three different types of drugs. Hey, but also like the fact the traffic accident

and there's a traffic accident right there. Right. That's the best evidence. Yeah. And I mean,

at that point, I'm not even, I'm not even necessarily blaming the officers for, for thinking all of that.

I mean, if I'm, if I'm the officer rolling up on that scene and I hear that the guy's done three

different types of drugs, he just backed into a car 50 yards behind him. I think you'd have to,

you'd have to have a pretty open-minded officer to be like,

it could be all just a coincidence. Yeah. Coupled with, uh, tells the, tells the person you hit,

don't call the officers cause I'm drunk. So we've got a number of factors working against my client

here. Yeah. So they, so they, they straight, they arrest him. They take him in out even after the

0.01 on the paths. Uh, yes. Well then what they do is they ask him, will you submit, you know,

we, we are under the belief that you are under the influence. Can we continue our investigation

and take you in and you'll have the option of doing the ECIR or the blood. And he actually submits

the both. He does a blood draw and he does the ECIR, which was the more, uh, official,

right. More accurate or accurate chemical test, which is the 0.0 alcohol. The ECIR is the breath

machine at the station, which is better than the breath machine that the cop has up at the field.

It's a real breath machine. Yeah. Far more, far more accurate. Yeah. Not just a party favor. This

is a real breath machine. And then the, uh, coupled with the blood draw, which he said, yeah, go ahead

and take my blood and test that too. Because they're basically, they're saying we have a reasonable

belief that you're under the influence of alcohol and drugs, and we need to further our investigation

and determine what drugs are in your system. The blood draw comes back and he tests positive

for marijuana, just like he said. And it breaks it down into the, uh, psychoactive and non-psychoactive

components, uh, tetra nine, delta nine THC. And, uh, I had to get an expert. I got an expert. I

secured an expert who was going to testify that you can't really determine when he smoked. And I guess the

theory is that when you smoke marijuana within the first 30 minutes is when the highest levels of

impairment are introduced because the psychoactive component is triggered. So then you're like

real high in the first 30 minutes, but four hours later, you're not high anymore, but you'll still

have it in your system for like three days. Anything else you're going to do in terms of pre-trial stages,

discovery, investigation? Oh, they made the argument that, uh, we don't have him testing positive for

Seroquel, but that's only because our office only tests for the top 10, uh, the top 10 generally

tested drugs and Seroquel did not qualify. And I guess it's just a generally accepted practice.

So there's, so they're going to say that your client's also impaired because there's

Seroquel in a system. And we know this because he said it exactly, but they never, there's no other corroborating evidence.

Uh, as of, uh, as of the day of trial, there was no other evidence to corroborate.

Without going into any specifics. I mean, what's sort of the attitude at pre-trial stage? I mean,

are you in, are you trying to negotiate the case? Because I mean, like we said, these DUI cases,

I mean, more, more than even any other kind of case, most of these cases go away because

the trials are, are such an uphill battle. Um, I mean, are you, are you guys looking to, to, for,

for an offer, uh, uh, at any, of any sort or is it trial from day one?

So I, um, I acquired this case. I acquired this case, um, about a week before I got to this particular

branch and the expert had been appointed. The stuff, the, most of the, uh, groundwork had been laid.

And I spoke with this gentleman and he said those magic words, which were 100%. I was not impaired.

I want to go to trial. Okay. And when you hear that as an attorney, suddenly your focus and your

attention and your energy and your desire to work hard on the case, it's just increases exponentially.

And I'm like, wow, this case is either dismissed or trial. Yeah. There's no ambiguity. And I love it

because I'm not necessarily going to tell the DA that because I don't want them to start focusing

on the case either. I want them to think, you know, what's the offer? What's the offer? But me,

I know there is no offer. So they try, you know, what about this? Now I have an ethical obligation

to say the district attorney or the city attorney is offering this and I need to tell you what's your

response. But I already know what the response is. I need to hear you say, I'm not guilty. I didn't do

this. I want to go to trial. So I say, unfortunately my clients consider your offer and he's rejected it.

So there, at that point I knew there was nothing they could do short of dismiss and they're not

going to dismiss. Did they do anything to try to strong arm him? Like, you know, put the offer

on the record and say, if he doesn't take it today, the offer is off the table and it's going to go up,

anything like that? I mean, they do try those things. I find them to be ridiculous because it's just

posturing. Sometimes I like to counter with a, uh, my client is your honor. I like to put on the

record. My client, uh, is amenable to a speed exhibition of speed that offer will terminate

at the end of the day. Yeah. Yeah. I love that. The, my counter offer is off the table.

Yeah. Cause they always like to threaten me with that. And just to let you know,

your honor, that offer is off the table. Hey, it's your buddy Dave from another not guilty.

And boy, do I love hearing about not guilty. If you or someone, you know, has ever been involved

in the NG, either as a defense attorney, prosecutor, judge, juror, witness, defendant, clerk, bailiff,

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So, all right. So you get sent out for trial, right? My strategy here, basically, do I have

a defense? Yes. My defense is he's not impaired. My defense is this guy who did the tests. He's not

a drug recognition expert. He's not even an alcohol recognition expert. He failed at that. There's no

DREs. This is a joke. That's my, uh, that's my attitude is going to be, this is a joke. Nobody

knows what they're doing here. He was wrong. I can't wait to say, and what would you think,

officer, when it came back zero, zero, that kind of hurt, huh? So anyway, that's my strategy. I'm

going with that strategy. And what was really troubling to me, and I even asked the judge to

come back in chambers and let's renegotiate. There's something wrong here. Like I had a secondary

ex parte, uh, conversation about this, but they said evidence of Seroquel of his Seroquel can come

in. And that's when I was a little bit outraged. Oh, okay. You know, I don't even know what Seroquel is.

I know this city attorney, just looking at him, he doesn't know what Seroquel is.

Your honor, what is this stuff? Do you know what Seroquel is? So I'm back there and the judge is

like, your honor, are they going to bring in an expert who's going to testify to the synergistic

effects of Seroquel marijuana and alcohol? And the city attorney, he started saying,

he's like, well, we're, we have toxicologists come in. And I'm like, well, let me ask you this.

Your honor, just what are the corpus issue? What are some other corroborating evidence that my

client was on Seroquel? And the city attorney ex parte back in her chambers goes, oh, he was

definitely on Seroquel. You could tell. I go, really? Is Seroquel some sort of recreational

drug I'm unfamiliar with? And he goes, uh, yeah, man, we know he was kind of doing telling the judge,

we know he was on Seroquel. I was like, this is an outrage. He's on the splurge. It's in rap videos

now. They're all doing Seroquel. Oh, he goes, and so I go, and I asked the city attorney, do you have

someone that's going to lay the foundation for the symptoms of Seroquel? And he's like, oh, we do.

I mean, he was clearly, you could tell he was on Seroquel. It was ridiculous. And she said, yeah,

that's coming in. What is, you know what? So he's totally posturing. Oh, he was, oh,

he was posh. He was posturing. He was basically saying that like, uh, it, the evidence is clear

that he was on Seroquel yet in his, uh, in limit emotions. And I'm, I'm still unsure. He characterized

Seroquel as a depressant. And I think it is in Dave, to answer your question, I think Seroquel is

an antipsychotic, which is a different characteristic or distinction from straight, uh, depressant. If it

was a depressant, it would have come up in the blood draw because the blood draw the test test

for the presence of depressants. So your honor, this guy doesn't even know what kind of drug this

is. He's calling it a depressant. It's not a depressant. Cause I just looked it up on like

Google medical doc and it said it's a antipsychotic medication.

Yeah. Your honor, I'm no Google medical doc, but it was just ridiculous. Uh, I guess I have heard

maybe Seroquel does have some recreational allure, but whatever. So that was coming in and I knew that

was going to hurt. If you're a juror and you hear that might your, somebody's on some crazy sounding

medication, you know, you're already, uh, looking at things skeptically. So, so now it's time to learn

about Seroquel. I did a quick, a deep dive on Seroquel. I'm doing, I'm on WebMD right now. And

yeah, the word depressant is, is nowhere to be found. I do see that it is known as an antipsychotic

drug. And then in parentheses, a typical type. Yeah. It's used to treat schizophrenia, bipolar disorder,

and sudden episodes of mania or depression associated with bipolar. So it is clearly

not a depressant. It is, that is, it is not a depressant. I almost would feel like it would

make someone a better driver because now they're more in touch with reality. I love it. You said

that Dave. Yeah. They could see the road for what it is. You know, like there's no voices distracting

them. Right. Thank you. I love that you said that because my attitude is fine, your honor,

then we'll be telling people not to take their antipsychotic medication so they can be psychotic

drivers. That's better. Right. LA driving is already bad enough. A lot of road rage, a lot of psycho

drivers. Right. We want bipolar people with bipolar disorder, not on their medication when they're driving

in, in, in LA traffic. That that's smart. Yeah. I thought about that too. I thought about maybe I,

I can maybe make that argument at some point. Great. Well, they don't even test for it. Right.

It's not even worth testing for the 10 things they test for. They don't check. Because it's not

something that we're concerned about as a, as a society of people going around driving into the

influence of Seroquel and getting into accidents and killing people. It's not happening. So, uh,

yeah, needless to say, we, we want the wadier selection begins and like, uh, what kind of jurors

are you looking for in this kind of case? I mean, there's, there's a plenty of jurors that you're

not looking for. That's for sure. The, the jurors I'm not looking for are 99% of the

American population that is not sympathetic to driving under the influence. The 1% I am looking

for, I want the fighters. My wadier, I remember I said, I said, you know, first of all, I get out in

front of it. Who here loves drunk driving? Show of hands. And then look, I don't have my hand up.

No jurors have their hands up. Now who here also hates, who here hates when somebody is convicted

of a crime they didn't commit and everybody's hands go up and mine does. So I just wanted to

get that out in the open. You know, we all agree on these two fundamental principles. This is not

about those two principles. We're all in agreement. It's about the facts. So please separate the two.

I remember doing that. And then I asked, um, who here has ever gotten a traffic ticket?

And then I had about half the jurors raise their hand. And when you got that traffic ticket of those

jurors raised your hand, who here fought that traffic ticket? And I had about five hands go up.

And I go, of those people who fought that traffic ticket, how many of you won? And there were no

hands up. So I went back to those five and I asked each of those fives, tell me what happened.

First four people, they just go, yeah, I went there. I didn't do it. Cops showed up, said I did this.

Judge said, you lose. I was like, hats. Thank you for sharing. All four of them, right? Just losers.

And it's hard, right? And then the fifth guy comes up and he goes, uh, yeah, I went there. I lost.

And he's like, how'd that make you feel? I was fine because the cop said I did it. And I go, sir,

just because the cop said you did it mean you did it? Yeah. He's like, what about everybody else?

What do you think of them? They're all guilty. Why? Because the judge and the cop said so.

So he's basically saying that's why that happened. Like that's, that's conclusive evidence that they're

all guilty and that's the way things should be. So that guy's off. So that was the conclusion of

voir dire. And, uh, so then that's time for the prosecution to bring out the, uh, I guess the

traffic accident victim, right? Was that the first witness? Traffic accident victim came up security

guard. He was not happy. His car had been hit. He'll get restitution, right? If he, if he wins this

case and he's there and he thought my guy tried to leave and you can tell he doesn't like him. He was,

uh, an African-American gentleman. And I think he had some law enforcement background and he came up

there and he told this story and, uh, pretty much as I told it. But when I went up there, this is why I

didn't know quite all the details of this accident, but on the overhead, I had a Google map and I wanted

to see exactly where people were. And then he started describing when my client was making a

left turn and he was behind him. He wasn't directly behind him. He was like, he was like half a block

behind him. There were cars in the lanes. Like he had to avoid some people in reverse to hit him.

Oh, wow.

A little different than the story I heard. And, uh, when he showed me, I go, sir, so how,

wait, how far had he reversed? And he goes, I don't know. How far is that block? And I asked to

take judicial notice that maybe the block's a hundred yards, a hundred yards long or something.

And he goes, mate, we determined maybe between 30 and 50 yards. It was not a good cross-examination

because those are kind of the kind of details you don't want to hear. This is your first witness,

right? You're, you're coming out with the jury and the case just got worse, right? Yeah.

It got significantly worse. So did you say like your closing question was, so he avoided 10 cars

before you hit yours? 10. Yeah. That's pretty good. That's, I was shooting from the hip and I did a

little, I, I, it quickly turned from like just a little love tap, a little fender bender to wait a

minute. So my client went a little over here, reversed all the way over here, came back and then hit you.

Yep. I was like, whoa, that I was trying to make it seem like fantastical and ridiculous, but, uh,

it was just compelling really at that moment. So, uh, who's the next, uh, uh, witness, the cop that

arrived on the scene? So here comes the next, the next witness is the investigating officer,

the cop that responded down the scene. And, um, and you know, this is really the big witness for me

here. Okay. He's a young officer. He's probably 27 years old. He didn't have the body worn, like I

said, and then the other issues that we've talked about. Um, after he, uh, on direct, he talked about all

the requisite stuff, everything we've talked about every, you know, pretty much just checking the

boxes. Right. And then I jumped up there. So on cross, my approach was I open with all of this

officers. Uh, you went to the Academy, you learned how to write reports, you learn how to testify and

you had a chance to review your report and you did review report for accuracy and it's complete now.

And he says yes to all these things. And you're telling the truth today. Yes. And then I go into,

uh, the first thing I preface with is I talk about, are you familiar with, um, I think it's special

order 40. He goes, no special order 40 regarding the use of body worn video in 2005. He's like, uh,

yes, I'm familiar with it. You're familiar with it. Like you've been trained on it. Yes. I'm familiar.

It was the, uh, special order handed down by then, uh, Commissioner Bratton. And he's like,

well, whoever the commissioner was, yes, I'm very familiar with that. And then I systematically,

this is my, I need to recover a little bit here. I systematically go through all the policy reasons

that this special order was introduced 10 years ago. First, I talked about special order and that's

an order, right? From the chief, right? Yes. And that's a requirement that you do, you do,

right? And one of those requirements is that you activate body worn anytime a, uh, someone's pulled

over any sort of vehicle offense. Right. And he said, yes. And I said, the reason for that is to

kind of, uh, have transparency in the department to encourage community relations, all these policy

reasons. I go down like a list of 12 things to promote trust within the community, trust, candor,

belief in these cops, uh, you know, forming these crucial bonds in the community. I go down the

whole thing and it was a little extended. No, no objections. Not until about 13 questions. I'm

walking around the courtroom. I have them kind of memorized and I'm like, cause these are the

foundations of like the principles that we live. And that's why he did that. Yes. And then I had an

objection sidebar and he goes, can we just wrap this up the introduction? We know that there's going

to be no body worn. And I was like, you know, I just have a few more preliminary questions and

then I'll start asking about it. So I do a few more about special order 40 and then I, I transitioned,

but officer so-and-so there was an accident here, wasn't there? And it was a, an investigation,

right? And you did not activate the body worn. Did you? Did he have body worn?

Well, yeah, I knew he didn't, but I was still, first of all, I'd say that it would sound like an

option because there, there was no body worn video here and there was no footage. And then may I

explain the officer said, and the judge says, let him explain. I don't have body worn.

And basically he went into, and it wasn't all that hurtful, but we went into a, he went into an

explanation that basically to summarize, to summarize his explanation was he's the last LAPD member to be

outfitted with body worn video. He's the last in a, the largest department in the world to be out. He's

basically, he started talking about numbers, like it's done systematically the rollout and how it was

financed in our department and the hierarchy of how a body worn is assigned. And this poor dude,

this 28 year old dude was like the last dude to be outfitted with body worn video.

And I thought that that all that explanation was, wait, did he have it? Sorry. Did he have it at that?

When he was testifying? Um, had he since that, that, that case had gotten it? Yes. So you have it now,

but you didn't have it then. Cause he was the last one in the department nine years after. So I, I went

into, wait, this is nine years. It took nine years. This special was like nine years ago under Bratton.

And you were like the last human being in the world to have it, you know? So you gotta do these

investigations without one. So his explanation to me was good enough to like, come on, buddy.

Who are you? The redheaded stepchild of the LAPD. They won't give you what everybody else got.

They won't give you a gun. So it was a fun, it was a funny explanation. It didn't make no sense

to me, but I liked where we were going here. Then I went into the, uh, it's a little doc protest too

much a little there. Yeah. Yeah. His, his explanation wasn't great. It didn't make sense to me,

but I'll leave it at that. Next. I went into the drug recognition expert theory and about his

experience. And you're not a drug recognition expert. Are you? No. And to qualify for drug

recognition, you have to do these classes, but because you haven't fulfilled those requirements,

you're not one. Nope. I'm not. So I was able to establish that you're not a drug recognition

expert at all. And I even made a little snarky remark about there was a blood alcohol level of 0.0,

right? Yes. And all these, uh, tests in the, in the presence of alcohol and the slurred speech

are indicative of alcohol consumption. Yes. So you're not really even an alcohol consumption

expert. Are you? Did you say in nine years, I'll be one? No, I signed up for the courses. They're

full right now, but they're going to be a waiting list, but in nine years,

it's so funny. He was, he was so good at just skipping passing. I'm auditing a class right now.

If there's enough people that drop, maybe I can get a spot.

One day I hope to be sir. I got a little snarky with him there. So, and then came the really, uh,

the, then we started with the field sobriety tests and we started talking about them. And in the

same manner, what I did was I took, forget about all the stuff that he failed. I said stuff that

wasn't mentioned. I transitioned those and recategories them as successes. For instance,

if it said that he, uh, if it didn't say anything about him failing to do the turn on the walk and

turn, I would say, and deputy so-and-so or officer so-and-so, my client, he successfully walked and

turned on that walk and turn, didn't he? At this point. So I use those as a little list of

things that he did well. Like the positives. He did not, he did not start too early. Did he?

You know, all the things that they usually use as evidence that my client failed. Right. I'm

now going to alternatively, since they weren't indicated, use them as successes. So I had like

eight little things and he walked and turned and he put his finger right to his nose on the first time.

I didn't say anything about the second time. And then the third time he did it successfully. So

I kind of went through those. And then I came to a really critical, crucial point in

this trial. And I said, and deputy or officer, then there's the modified Romberg test, right?

Yes. And the modified Romberg test, it's a test to determine sobriety, right? I hear something like

that. He says, yes. And that is, uh, a test that it calculates informally your internal clock.

So we talked about the modified Romberg a little bit, laid the foundation for it because this was

something that my client has did pretty well, 35 seconds. So I asked him, uh, now the modified Romberg,

what qualifies? And this is a big moment in this case. I said, what qualifies as successful completion

of the modified Romberg test? And he goes, what do you mean? Well, how many seconds need to actually

elapse that my client indicates actually elapse that qualify as successful completion?

He said three seconds. And I go, excuse me, three seconds. You mean if he comes within 33 seconds,

27 seconds to 33 seconds, he successfully completed the modified Romberg? And he goes, yes.

Immediately. I was a little bit thrown by that because I know it's either five or 10 seconds.

Yeah. I've never heard three. And I know that it's hard to get five and 10, but none of my friends got

plus or minus three, 27 to 33. Maybe these are your friends though. Those are my friends,

which is not a good, which is not a good sample sample group. And I, and I, and I accounted for that.

But I did also think I'm a little bit of a math guy. And I thought to myself almost immediately

to get 33 seconds on this modified Romberg means that your internal clock, if it's 1.1 seconds for

every second and you're late by 1.1. So you count yourself 1,001, 1,002, 1,003, and they're off by 0.1,

you're going to be at 33 seconds. That's how accurate your internal clock has to be.

Almost immediately I was like, dude, that is going to be tough for anybody to do. So immediately when I

established that that's successful completion. And as a side note, this test doesn't even really need to

be conducted. It's not scientifically validated. No, but you did it, pal. That's not my fault.

Right. So when he did that, I came out from behind the lectern. I go plus or minus three seconds. Yes.

Well, I'm sure you wouldn't mind showing this jury exactly how it's successfully executed. He goes,

not at all. And it happened that quick. And he was pretty confident. He jumped up there. Please meet me

right over here. And there was no objection. And we're in front of the jury box. And I, uh, I really

tried to kind of set the stage in kind of a funny way. And I said, uh, you know, thank you, officer,

stand right here. And I pointed to the area right in front of the jury box. And so now we are going to

go ahead and, uh, commence the modified Romberg test. And he said, okay, yeah, great. So officer,

if you would just please follow my instructions, I'm going to try to recreate a scenario that's similar

to what my client had to endure on Florence and Normandy. Okay, great. So if you would, uh, go ahead

and put your hands by your side and your feet together. And he kind of did that. And then tilt

your head back. And what I'd like you to do is now go ahead and close your eyes. And he kind of closed his

eyes, but I noticed that his eyes, eyelids were fluttering like rapidly, which actually is a clue

of impairment. Is that what it is? I believe that, I believe that, um, if you're out, yeah, if you're,

if you have, uh, eyelid tremors, that is, uh, that's a clue. I thought it was, uh, indicative of nervousness.

Yeah. Extreme nervousness for sure. But I was unsure. I was like, did my eyelids flutter like that?

So they were really fluttering. So I kind of, I needled them a couple of times on the before

beginning. I go, come on officer, close your eyes. Let's do it like you did to my client. And he like

tried to close his eyes tighter. And then I go, and I go, I pull out my iPhone and I put it on zero,

zero, zero, beautiful. The stopwatch and the city attorney does too. He gets his prepped and I'm

talking to him and I go, uh, so what I'm going to do officer is I'm going to ask you to yourself

quietly. Don't say it out loud. But when I say begin internally, I want you to calculate 30 seconds.

Don't say anything. When you believe 30 seconds has elapsed, I want you to say, stop. Okay. Now,

do you understand my instructions, sir? He goes, yes. So like I said, only when I say start, don't

start early. You know, like I always like to do to my clients. He's like, no, yeah, fine. So this 28

year old officer's up there, head tilted back, hands at his side, the whole jury watching intently.

The city attorney has his stopwatch out. There's actually quite a few people in the courtroom.

I hold the phone out so the jury can see my finger on the start button. And then I go, are you ready?

Officer. And he goes, yes. And now begin. And I start running the stopwatch. I'm nervous that he's

going to just nail it. 30 point, 30.00. And I see 10 seconds elapse, 20 seconds elapse, 30 seconds

elapse. I'm like, Ooh, 31, 32, 33, 34, 35, 30. And he stopped. My clock stopped at 35 58. And I show the

jury and I show the city attorney and remarkably one juror goes, Hey man, you stopped that a little late.

And then I, I go, I just gestured to the city attorney cause I saw the city attorney at 34.86 or

something. And the city attorney actually goes, no, he's, it was pretty accurate, which is a weird

exchange I have with a juror. Yeah. And then I go, officer, unfortunately you have failed the modified

portion of the field sobriety test, sir. And it kills me. It kills me to ask you this, but are you

impaired right now? He goes, no, I am not. And I goes, cause there's no shame that I'm sure the

city attorney would be happy to give you a lift home. Jers laughing. Uh, there's a couple of jurors

laughing. Yeah. Uh, it was, that was a tough one for him. The case is over. And then I, and then I also

say, and I go, and just imagine officer, this is in the relative sanctity of this judge's courtroom

because it's pleasant in here. Not on the chaotic, not on chaotic Florence in Normandy.

It must be quite a challenge. You know, I'm really going in. I'm, I'm, I'm, I'm squeezing this for

everything it's worth worth. And he, he's, he's like, yeah, you know, you did fail. Yeah. Blah, blah,

blah. So we, I have to finally move on from that. So that was a big shining moment for me.

They hear, I just picked out one of these things and he just failed it. That's what a joke this is.

Right. I remember on the recross, the city attorney tried to, he tried to kill. He's like,

Hey man, he, he, he came up on recross. He could, well, officer. Yeah. You got close.

You got close. Ha ha ha. You know, kind of an artificial laugh. He's like, yeah, I got close.

You know, kind of like sanitize, like it doesn't make a difference. Well, good try. You came close.

And I'm thinking to myself, this close way, are we going close now?

Is that what he, is that? Yeah. Is that what they do to our clients when they

get close to passing the tests on the, on the side of the road?

Yeah. And are we, are we joking about it? Guess what? You're going to jail.

Exactly. I mean, this officer, although I have seen the officer since, and he's always nervous

around me, but, uh, that was a shining moment. Um, so what's the next piece of evidence that

the prosecutor puts up there? So yeah, that was toxicologist, I guess.

Toxicologist comes up there. And, uh, I thought that was the next day. Actually, we, uh, I got

to celebrate for one day. I had a good day, came back to the next day and toxicologist jumps

up there in the afternoon and he's good and he's candid and he has, he's done this so many

times. He's just, he's just a good, he's a good, uh, what's his purpose in the trial?

His purpose is to basically talk about the drug, the blood draw, uh, the presence of drugs,

the certain things having to do with how a marijuana can cause impairment. Um, the, you know,

alcohol impairment, how the reliability of the instruments, uh, you know, he's an expert

in, I guess, alcohol, drugs and, and, and that kind of stuff. Right. And he's, you know,

pretty much testifying for the prosecution all the time. But, uh, when they were after on

my cross, I asked about, uh, you guys didn't, you guys took a blood draw, right? Yes. And

you tested the blood. Yes. And it tests for these 10 things. Yeah. Yes. And you never tested

for a specific drug called, no. Are you familiar with a drug called Seroquel? And he goes, only

from this case, I know that it's an antipsychotic medication, which was more than I knew. I go,

oh, you know that. And, but you didn't test for Seroquel in this case. He goes, no, yeah,

we did. And I was kind of thrown by that a little bit. Cause that contradicts what you were told

earlier by the prosecutor, right? And I have, yeah, he, and the prosecutor argued that they can't

test for every drug in the universe because they don't have the resources. And he made that

representation. And I go, we made that representation to the judge, to the judge. And

that's what, you know, your honor, just because we can't test for it. Cause we can't test for

everything. We test for the top 10, you know, it's too expensive or I don't know, laborious.

That's what we do. So when he said that, I thought he was mistaken at first. I was like,

I'm sorry, just to clarify, you didn't test for the presence of Seroquel,

the anti-psychotic medication. Did you? He goes, no, I thought we did. And you,

you thought you did. And he was kind of looking around for help. Yeah, I believe we did.

Cause like, cause like sometimes he may be getting his cases mixed up. Yeah. I thought so. Oh,

I guess. Isn't this case of people V so-and-so? Yeah. I was here on. And so he said that a couple

of times and then I had to kind of transition. Well, are you familiar with the evidence that there's

no evidence of a test for Seroquel in this case? He's like, I'm not familiar either way.

So I kind of went down that path with him a little bit. I didn't like the fact though.

I was troubled by the fact that he said that he tested because I'm worried that the jury's

going to think, Oh, they tested for it. And if it doesn't come back positive, he's on it.

Are you guys like both like asking and answering questions like in a non-confident manner?

Are you familiar that it's not in this case? Uh, yeah, I am not familiar.

Nobody seems to know what's going on at this point.

I wouldn't know because he's looking up, left, down, and right. And I'm just looking through

my notes.

You're looking through the police reports.

And I'm asking questions as I read, but do you know there's no evidence of Seroquel? I think

there is. No, I'm pretty sure there's not. So that little exchange was a funny one. And in my mind,

I'm like, darn it. How am I going to refute that? They did test and there's no evidence of a positive

test for Seroquel. So that was an unusual exchange. Uh, you do so many cases that you don't even know

what keys were on here, you know, kind of thing that didn't work. He's like, no, and maybe we

didn't. So we left it at the, we, we finished the day with maybe we didn't. I thought we did,

which is, uh, yeah. If I'm a juror, I'm just like these guys, they need to get their shit together.

Like at this point I'm pissed at the, I'm at, I'm pissed at the prosecutor, but do they know that

yet? Because maybe they're looking at me like this guy doesn't even know if they tested for

Seroquel. Maybe we're all look like it seems like the, it seems like the expert is the one

that's going back and forth. I mean, he doesn't know, but you know, the expert was so good at

testifying prior to that, that he was, you'll soon find out was he was being honest. This was from

11 months before. And he seemed to remember, he actually remembered, no, we did test. He just

tested, sent it off and that was it. It was done. We always sent out for a test and that was it. He

doesn't deal with it after that. It goes right to the prosecutor, the, the DA or the city attorney's

office. So he remembered it's pretty remarkable, but we had to leave it kind of as a hanging, uh,

uncertainty at that day. Like I'm trying to be like, come on, there's no evidence of it. And he's

saying, I thought we did. And we adjourned for the day. So after, uh, that was the next day. So I went

home and I was like, man, how am I going to deal with this now? Do I have to like now provide proof

that there wasn't, or I'm thinking about those things next. Well, I mean, don't you talk to the

prosecutor afterwards being like, what, what the F dude, he's saying you guys tested. Where's the

discovery? Where's, I mean, that's kind of a discovery violation. Really? Oh, it's a huge

discovery violation, but the expert didn't really testify. He said he believed they did. Did the

prosecutor re redirect and ask more about it or did? No, not at that point. He was going to come back

on the stand the next day. Oh, so the next day coming back, then prosecutor can, yes, we can kind of

hash this out. Okay. So, you know, this was a day three, I think the trial next morning, I show up

to court with my client, actually without my client, he's going to be sick this day. He just let me

know moments, moments before, moments before we were supposed to start trial. I had to call him

and two members of the city attorney's office came running up to me and they go, Hey, we got to have a

moment. And I go, yeah, just be one second. I got some other stuff to do. No, we need to talk right

now. They pulled me aside. They pulled out a piece of paper and it was a test for Seroquel that had

been conducted and came back negative. And I was like, Whoa. And he goes, we're going to dismiss.

And I was like, yeah, I was like, wow. Cause number one, I didn't want to explain to the judge

why my client's not coming today. And number two is I didn't know how I was going to get over this

obstacle. And he's like, yeah, we're going to dismiss. And we went up and I called my, my guy

back. He's like, listen, you don't have to show up today and you don't have to show up again because

they're going to dismiss. And we went before the judge and the city attorney spoke about the fact

that, you know, something happened, you know, technically if this had been done intentionally,

it would be a Brady violation. That's serious. It's extremely serious.

The Brady doctrine is a pretrial discovery rule that was established by the United States Supreme

Court in Brady versus Maryland in 1963. The rule requires that the prosecution must turn over all

exculpatory evidence to the defendant in a criminal case. Exculpatory evidence is evidence that might

exonerate the defendant, uh, such as a negative test for Syroquil, which is why they're probably

a good reason why they might be thinking we need to dismiss this to, uh, avoid there being any further

inquiry. Yeah, you're probably right. And I'll also say that when he said we are, uh, it has come into

our possession, you know, he's trying to distance himself from this piece of evidence. It's come

into our possession, uh, a test that we didn't have. And he's trying to explain it away, not very well.

And we're going to ask to dismiss for these reasons. And then he asked the judge, you know,

uh, we're going to release the jury when we release the jury. Can we ask that defense counsel not tell

the jury about why, what happened in this case? Right. Cause I mean, let's, I mean, take a step

back. Officers claiming that he said that he had taken Syroquil. So presumably if the client actually

said that he should come back positive for Syroquil. That's, that's common sense. The fact that it comes

back negative would seem to suggest that the officer lied when he wrote that the client told him that he

was on Syroquil. So the officer wrote a false police report, potentially, probably, almost certainly.

Um, in which case we've got an officer writing a false police report. We've got an officer testifying

falsely in a jury trial under oath. We've got a prosecutor who had exculpatory evidence in their

possession because police possession is prosecutor possession, which wasn't turned over within 30

days. Cause they got it right away. I mean, what did they call the lab that like how all of a sudden

they just, how'd they get it within 12 hours? Right. And it's presumably if, if labs close out of

time, the prosecution lab closed, it's not like a police station. It's not open all night, right?

They have set hours. Of course. Yeah. And they came up with a negative test to exonerate your client in

some way. It's not, exonerate's a strong word, but you know, they go with a negative test just like that.

Where'd it come from? So, right. So, I mean, you've got, I mean, you have potential culpability

for the officer, for the lab, even for the prosecutor himself, the prosecuting office.

I mean, they're, they're in some trouble here. You really exposed some shadiness.

So, did the jurors find out you're a public defender? Probably when I was running out of

the courtroom handling other calendar issues, they had that idea. Running around doing other

cases all over the courthouse? Yeah. And trying to pretend like, no, I just am private with 15

different clients. You know, the question of whether you should tell the juror, jury, whether

you're a public defender or not is always a kind of a up in the air question. It's undecided.

Well, you are. And why did you want to become one? You know, that's a, it's a wild story. I will just

say, without taking too much time, I didn't know when I went to law school that I wanted to be a

public defender. I knew I wanted to be a trial attorney. I knew I couldn't write nearly as well as my

contemporaries. And I knew this might be an opportunity where I, I can develop and maybe I

have an advantage. I looked at both offices. I actually both, which is not something all public

defenders do, but I actually interned on both sides. For the DAs also? Uh-huh. And I knew pretty quickly

in the DA's office that, you know what, I'm just not, I, I'm an underdog guy. You know, maybe I have a,

a dad in a family that was kind of underdogs. And actually a public defender appeared on his behalf

when I was a kid and on a pretty rough issue. And he's been with me my whole life, this public

defender. And I knew within weeks that like I, uh, the DA's office was not where I wanted

to be. And my first week as a public defender, when they threw me in there to talk to a custodial

client, uh, I was like, first of all, how are they letting me do this? I feel like unbelievably

unqualified, but I knew right away that like, this is, uh, my life's experiences suggest or support

my belief that I'm here for the underdog, the guy that is not represented. And also I can't do the

rote memorization, the regurgitation, you know, I, I gotta be up there flexible and willing to do

whatever it takes to defend people against a system that is too frequently unkind and unjust to people

that don't have the resources. And maybe I can somehow, you know, balance that out and by giving

the best, the best legal, uh, legal defense I can. Well, thanks for being on the show, buddy.

Thanks so much, man. It's been a real pleasure. Thanks for letting me tell my story.

Steven, thanks for being the good cohost. You're awesome, dude. You're amazing.

Thanks, David. Thanks for, uh, inviting me. And it was a pleasure to hear, uh, a really great story

and another not guilty. That's right. Well, not even a not guilty. It was a straight up dismissal

because it was going to be a not guilty. It was on its way. You didn't, you didn't even have to

address the traffic collision. Honestly, thank God. Cause it's, it's hard to put a lipstick on that pig.

Thanks for tuning in to this week's episode of another not guilty. Shout out to Daniel Mark,

creator of A and G's original theme music and our audio engineer, Chris Adams. And guess what?

We have another not guilty story coming your way next week because we public defenders fight

injustice every single day in the American criminal system.

Music