The Damned If You Do, The Damned If You Don't - When the system punishes you for either choice—and your public defender refuses to give you only bad options.

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.

That trial was kind of like a long therapy session for him. He had to face a lot of his own demons. They don't know why, but the why doesn't matter. And I get up and that's the first thing I say. The why is everything.

I got mad at the detective. Kind of did this Abaddon Costello bit. He's like, "We want to know why it happened." And my client says, "Tell you why it happened? I don't even know what happened." And I'm like, "Okay, so even when we have corroboration, he's still lying."

When can his story, when can a person on Skid Row's story ever be believed or be understood?

Welcome. 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.

All right. Welcome to Another Not Guilty. My name is David. Today, we have one of our favorite guest co-hosts.

A more regular co-host. Michael, how are you doing, buddy?

I'm doing great. Great to be back here.

Yeah, we love having you. I know our fans love having you. They say you have a great voice.

So, they're the ones, huh? Yeah. Apparently, mine and Nikhil's voice wasn't doing it for them. So, you guys get what you want, and now you got Michael, okay?

How was your week at work today?

Your week at work was pretty good. I just came back from vacation, so catching up on most of my cases, setting a few for trial.

Okay.

Hopefully, I'll be a guest soon.

Right. Are your clients okay while you're gone on vacation?

Some of them weren't happy that I took time off when they were in custody, but you need a recharge in this line of work.

Okay. All right. And so, we do have another Not Guilty today with our good friend, Benny. How are you doing, Benny?

Doing good, David. Thank you.

I know you just went in trial because when I invited you over to watch the basketball game the other day, you just came back from a Not Guilty, right?

Yeah, I was feeling pretty good. I had already made my trip by the bar on the way to your house to celebrate a little.

Yeah, it was a good feeling that day. And I'm glad I'm finally on the show.

Great.

I'm finally here. I made it.

You made it, man. Well, welcome. And so, tell us about your case. What were the charges?

The charges first-degree murder with a firearm. So, as you both know, but other people don't know, you know, once a gun is used in almost any criminal offense, the stakes just skyrocket, you know?

The numbers just really go up.

So, first-degree murder is 25 years of life.

Yeah.

But if you use a gun, then it's 50 years of life.

Yeah. If you discharge the firearm and the person dies from it, then it's 50 years.

So, that means they won't even see the possibility of parole for 50 actual years.

50 actual years.

And my client was 40, or is 40. So, you know, that would kind of be, that would be it. He wouldn't even, you know, get a parole date.

So, the stakes were very high. And, you know, he's very, he was very kind and, you know, very thoughtful client.

One of my favorite clients I think I've ever had. So, when I entered the trial, you know, the weight of it was really on my shoulders.

I like all my clients for the most part, even the ones that, even the ones that I hate, if that makes any sense.

Right. A lot of sense.

I even like them. People that in some ways are unlikable. You definitely see their humanity and you meet their family and you get to know them.

And you get to see why they got to that point, all the injustices in the world that have caused that behavior.

Yeah, absolutely. And this guy was, I mean, that more so than most of the clients I've had.

He just had such a traumatic life and it was just so difficult learning about him.

And all the while that I was learning about how traumatic his life was, he was just so polite and kind and easy for me to work with.

And always, you know, obliged me when I, when I had, you know, trouble having his case move forward. It was...

Did you sit down and try to learn about his life? Is that something, is that something you actually...

Today I'm going to go and I'm going to sit down and I'm just going to have a one-on-one conversation with my client.

It could be two hours, one hour, three hours long, or do you block out time like that?

Well, let me tell you how this, so this case, the way that it started. And yeah, just to answer that very quickly, whenever I have a murder client, the first meeting that I have with them or any real serious case, the first meeting I have, I don't even really talk about the case.

I just talk to them and get to know them and have them get, get to know me.

This, you know, you're just trying to build trust, trying to build a relationship.

Yeah. And also, yeah. And I find that you learn a lot more facts that way. If you just don't focus on the facts of the case immediately, because everything, you know, needs context.

That's what we bring, you know, the DA brings just the facts of the case and we bring all the context so you can understand what's going on.

The DA is like, he punched him and we bring the, well, why did he punch him?

Exactly. Exactly. And so who is your client then?

So my client was a 38 year old, uh, African American male. He was living on Skid Row. And essentially the facts of the case were, and it was caught on video. So I get the case, I get the file. I haven't met the individual.

Uh, there's a CD of a surveillance tape. I put it on. It's on Skid Row. Really, really crowded part of Skid Row. Fifth and San Pedro.

And just so we know, Skid Row is this area of our city where it's a big homeless population. How else would you describe it? It's kind of like the throwaway part of our town.

I mean, Skid Row is pretty descriptive in itself everywhere. Uh, yeah. I mean, it's, it's a, you know, third world country right in the middle of downtown. It's, it's unbelievable. It's a, it's a shameful place to walk through. Uh, just line out tents and makeshift cardboard sort of houses lined up back to back to back. Uh, health disaster. Uh, mental health.

Uh, mental health issues. People there are afflicted with illnesses, maybe addiction, you know, who knows what's going on, but they're all just sort of funneled to this one area.

Partly because there's a lot of services there. There's a lot of missions and shelters that are there. And then partly also because I think the rest of the city just doesn't want homeless people living outside on their sidewalks. And this area is kind of a warehouse district. And at nighttime is closed and there's not as many people living there. So they've sort of been funneled to this area. And it's been that way for 50, 60 years. Right.

And so you, so you put in the video. So I put in the surveillance tape and it's, it's pretty wild because the surveillance tape just gets this one little piece of the sidewalk. On one side, there's a wall blocking. On the other side, there's a tree.

And there's my guy. And there's my guy. And he's in front of a tent. And my guy was running a store on Skid Row. He has these tables out and he sells, you know, George Foreman grills and tapes and women's health products and, you know, deodorant and white t-shirts, et cetera.

And a person walks by, there's no audio. The person walking by sort of, you know, says something over their shoulder and then walks by him. My client raises his head, looks who it is, goes off screen for a second, presumably to go get a gun, comes back on the screen.

The person that was walking away, turns around, walks towards him again, says a couple more words. My client says a couple more words. And then the individual just walks away.

And when he's about five, six feet away, my client takes the gun and just shoots him right in the back. And that was it. That's what, that was the first thing I saw.

So on the surface, this is worst case type of murder case you can get.

I guess. I mean, there's no audio, right? I don't know what's going on.

Right. And I hadn't met this guy before. So when I first saw it, I thought, yeah, what do you, what do you do with this?

Right. Shot in the back. No fight that led to it, at least physically.

Yeah. Because for self-defense, for an actual self-defense claim, you need to be in eminent danger.

You know, the harm has to be present. It can't be future harm.

And that was something that we definitely battled with over the trial, because how can somebody walking away be danger right now?

So that was something we had to deal with. But then I meet the guy and just, you know, it doesn't add up.

Okay.

You meet the guy and he's just like this really nice guy, relatively well-spoken for someone that, you know, you would expect was living on Skid Row.

And, you know, he had this story and he was just telling me how that guy that he shot had been harassing him and abusing him.

For how long? Like they have a history then?

They had a history, which makes sense, right?

It just, you know.

You don't just shoot anybody in the back, right?

Yeah. Most people, most people are not sociopaths, you know, and this guy's criminal history, when you look at it as a 38-year-old man, he didn't have any of that.

He had basically no violent crime.

He had spent maybe 12 years in prison for marijuana sales.

That's sad.

For marijuana sales.

Yeah.

You're disappointed.

The system owes him now.

The system's in debt to him, you know.

Personally, I felt that way a little bit.

Right.

I was like, man, that's messed up.

12 years for marijuana sales and now on 3rd Street, you know, there's a brick and mortar for marijuana sales.

So, you meet your client, he's nice, and what is he, should we talk about what he says?

Is that like a client confidence?

No, we can talk about it.

I mean, it all came out in trial, and he did testify at trial, which was really important.

And, you know, he said that this individual and a couple of other individuals, so my client, after he got out of prison the last time for marijuana sales, ended up on Skid Row, and when he was on Skid Row, he wanted to sell marijuana again.

But like we just discussed, marijuana was becoming legal.

So, basically, he was out of a job, right?

Government screwed him again.

Yeah.

And so, he decided to start a store on Skid Row, and so he had his tent, and he was using his EBT card to buy sodas and cigarettes, and he would sell single cigarettes and sodas, and he would buy hot dogs, and he had a grill, and he used to work at, like, Roscoe's Chicken.

And waffles back in the day, and McDonald's, and all these, you know, other restaurants.

He had some cooking experience.

So, he would grill, and he would serve shots for a dollar, sell single cigarettes, and then he would sell women's items, and he would, he basically had this little...

Like a commissary.

Yeah, but it was a one-stop shop, like, everybody was there, and people liked to hang out there.

So, he really enjoyed it, because it was, like, a place that people liked to be also on Skid Row.

The neighborhood...

The neighborhood liked him.

Joint, I guess, you know.

Yeah, but, so he also, unfortunately, was selling some items that were stolen, and he was making decent money there, and he sort of grabbed the attention of some other local people around the area, because, you know, territory in Skid Row is very important.

People are selling drugs, people are selling stolen items, and there was an incident where a girl was getting beat up, and he broke it up, and then somebody called the police, and these people thought that he was the one that called the police.

So, they thought he was a snitch, so once you're labeled a snitch, the local people around the area, we weren't allowed during the trial to call them gang members, but, you know...

That's essentially what they were.

Wait.

Essentially...

Oh, the victims were gang members, or the victim was a gang member.

We were arguing that.

Right.

We didn't actually get to argue it during trial.

You know, you know, we can't just call someone a gang member.

Right.

There has to be some sort of basis for it, and this guy didn't really have that.

And so, these guys started messing with my clients, and one time they came up to him, and he says that they, you know, put a gun in his face, said, got to get out of here.

You can't be here anymore.

And then another time they came by and said, oh, you're still here, and they robbed him, and they pistol whipped him on the head.

And, you know, that was the...

Those were the events that were leading up to...

And was there any corroborating evidence?

So, that's the thing with the case.

So, I meet him.

He tells me this story, and so begins the hunt for some corroboration of events that happened on Skid Row a year and a half ago.

So, how long prior to the shooting where your client was the shooter were these other incidents with the decedent?

So, you know, when my client would tell me how long ago, when they were the story, you know, it's not as clear as one would hope.

You know, one thing that I started to learn, and I actually got upset with them sometimes.

You know, I do express a lot of tough love from my clients, asking them really tough questions, and sometimes being, you know, an asshole to them with my questions.

I tell them it's to prepare them.

You know, these are the questions you're going to hear when you're in there.

So, even if I'm acting like an asshole, it's out of love.

So, you didn't know then, right?

Or you couldn't really quite say it?

He was giving me, you know, like, he was giving me...

He was saying, you know, it happened a week before.

It happened a month before.

Because it's not like your client really knows Monday, Tuesday, Wednesday.

Like, it's not really a weekend when you're living on Skid Row.

Every day is...

Yeah, I guess he doesn't have a calendar hanging up on his wall.

Right.

Oh, God, it was easy.

I went to the gym, so it's been Monday morning.

And then, like, oh, so then I went here.

It doesn't exist.

Well, so what's the state's case?

What are they arguing happened?

Like, what was the motive?

So, what they have is they go to the scene.

The police go to the scene.

They find this guy on his back on the sidewalk.

And when the police first show up, actually, there's no blood on the ground.

There's nothing.

The bullet was a small bullet.

It was a .22 caliber.

And I guess on Skid Row, the past three days, there had been a spice epidemic.

So, spice is this synthetic drug.

Some people call it a synthetic marijuana.

Some people call it bath salts.

And I guess, like, a hundred people in three days had fallen or dropped from spice.

In that area.

In three days.

So, they thought that this guy.

Just another spice.

Just another spice.

Yeah.

Situation.

And so, the police came over and they're saying it on the body cams.

They're saying it.

You know, I think it's just spice, Sarge.

And then.

Right.

I definitely use that during trial to, you know, paint a picture for the jury of what

kind of place we're talking about here, you know, where, because I don't, do you remember

that?

I don't remember hearing a story of a hundred people.

Right.

You know, fallen out from spice.

But then they do find the bullet hole.

They take them to the hospital.

The homicide people come out.

They ask every single person in the area, did you see anything?

And everybody says what they say on Skid Row.

No.

I didn't see anything.

And then, immediately the next morning, they go to the, it's sort of like project housing.

It's single occupancy residence is the apartment building right there on Skid Row.

Okay.

It's like halfway house.

Gigantic halfway house.

Or like, you know, a section eight housing.

Okay.

And they find the surveillance tape immediately.

They see the shooting immediately.

It's right in front of my client's tent.

They recognize my client because they just walked past him outside.

My client never left the scene.

He went, he stayed at his tent.

Which is a good fact for you.

Which was a good fact, I think.

Right.

You know?

And the fact that he did it in front of a camera when he had been living there for six

months, he knew that camera was there.

Is that his usual spot?

That is his spot.

That was maybe the easiest murder case those homicide detectives ever had because they walk

outside where they got the surveillance tape and they already called a black and white car

to just pick my client up and take him to the station.

He was just right there.

They stand outside the tent.

They get their warrant.

They search his tent.

They don't find the gun, but they had spoken to him the night before.

They got a warrant for the tent?

They got a warrant for the tent.

Nice.

Well, I mean, they had nothing to do at this point.

They have to.

They do.

I agree.

Because they used to search tents, but then some clever defense attorney argued one day

that that's actually someone's home and they need to get a warrant.

They have a reasonable expectation of privacy.

In their tent.

In their tent.

I would think so.

Yeah.

As they should.

So they took him to, they took my client to the station and when they get to the station,

you know, they have the video, they know it, but they, for some reason, they just need to

have him say.

They need the confession.

I shot him.

Yeah.

They still need a confession.

They have it all on video, but they need a confession.

So then they go through this entire, like, rigmarole where they're just, where they say

to him, so what happened last night?

Oh, you didn't hear anything?

You know?

Oh, you didn't hear a shot.

A lot of other people heard a shot.

You didn't hear a shot?

And they just let my guy ramble about how he doesn't know anything.

So he's denying it from the beginning.

Denying it all.

And then maybe about 25 minutes into the interrogation, they say, well, you know, normally we bring

people here and we already know the answers to the questions we're asking.

We just want to see if they'll tell the truth.

Very common.

And my client, of course, keeps on denying, denying, denying.

And they do this bit for a while.

Eventually they say, well, we have a video.

My clients will like, what's the video?

And they're like, you know what's on the video.

And they just keep on, it goes on over and over.

Eventually they say, it's a video of you shooting someone.

Show me the video.

Well, we have it.

Just trust us.

They do this.

And then an hour after the interrogation began, they eventually show him the video and they

have him ID himself.

Is that you?

Yeah, that's me sweeping.

I'm the only person that sweeps around there.

And then, uh, and then the part where he shoots someone comes up and my client almost can't

believe it.

And he can't believe that he was caught or that went, you know, it's, it's a crazy moment

because he, he says at that point, he's like, that wasn't me.

That wasn't me.

And the police say, it wasn't you.

You said it was you all the way up until that point.

And then my client says, but I didn't shoot anyone.

And they're like, you didn't shoot anyone.

And then he's, but I didn't shoot.

And you just like, his voice cracks.

And he just sort of like has this moment on screen that I thought was really powerful.

And I played it maybe five times during the jury trial because, you know, he, my client

has been through a lot of trauma in his life.

And he's the kind of person that, you know, when I said he's like a really nice and well-spoken

individual, when you speak to him and you learn about his life, it's kind of hard to believe

that this is what he went through.

Um, and he's just really good at, you know, putting it out of his mind or denying it or,

you know, I guess like the shit goes down and he just moves on.

Like, he kind of, he kind of has to.

And he said that, you know, I'll tell you this, that trial was kind of like a long,

long therapy session for him, like a really, really messed up therapy session.

He had to face a lot of his own demons throughout of it, you know, because he had to what?

So the theory for the case then, um, is that my, your theory, my theory is that my client,

you know, does have post-traumatic stress disorder.

Okay.

And, uh, and from, from what incident or from what?

So when he was a child, lots of trauma, lots of, uh, domestic violence in his home.

He was hung upside down and beaten by his father.

Uh, he grew up in a really rough neighborhood.

He saw, you know, one of his friends got shot and killed right in front of him.

Uh, other, other things of this nature, uh, when he did go to prison, you know, prison is a

pretty horrifying place as well.

Uh, he never joined any gangs, never did any of that.

He just tried to avoid people.

He was diagnosed in prison with an anxiety disorder and depression.

Uh, he did try to commit suicide a few times.

Uh, he informed me, uh, in his prison medical records, he always denied that.

That was kind of an issue.

Uh, and I did have a doctor who, uh, was a really, really well qualified individual, works

with veterans and, uh, has a lot of practical work experience in the field.

And, uh, he said, yeah, this guy sort of fits the profile for PTSD exactly.

And there was one other incident where my client was actually shot at and a bullet grazed his

head.

And other than that, the incidents where he was robbed by the victim and the other people

on Skid Row, all of that would really put a man on edge.

And the main symptom of PTSD being hypervigilance.

And that was kind of.

Okay.

So, so how does this fit in with your legal theory?

So the legal theory is that.

So perfect, like a justifiable homicide, killing of another person, self-defense.

You have to believe you're an imminent, imminent danger.

You have to use force because of that danger.

Deadly forced because of that danger has to be reasonable that you do that.

Meaning another individual looking at that would say, yeah, that was reasonable that he

did that.

But there's two versions of manslaughter that are somewhere in between a murder, which

is an intent to kill or desire to kill or a first degree murder, which is, you know,

even more so than that.

More premeditated.

More premeditated.

And then there's manslaughter.

And manslaughter is sort of like, well, it's not all right that you did that, but we kind

of understand to put it in real layman's term.

And there's two types of manslaughter.

There's a, or theories for manslaughter.

There's a heat of passion theory.

The common one being, you know, you see something that stirs up emotion in you.

You're provoked.

You sort of act out of emotion instead of reason.

Right.

You walk in on your wife having an affair.

That's the classic one.

It's not cool that you, you know, shot your wife's lover.

That's not cool.

But we kind of get it.

You're not, you weren't, you know, going out trying to get kicks by killing people.

It just sort of happened.

And then imperfect self-defense, which is you believe that you're in danger and you believe

that you have to use deadly force to face that danger.

But if we look at it from another perspective, it's unreasonable that you did it.

It's an honest, but unreasonable belief in the need to use that force.

And I thought both of these theories applied to my client potentially, you know, and that's

the context that we were talking about.

That was the con, you know, that's why you can't just look at that video and say, this

is a murder.

This is a first degree murder.

What witnesses do you have lined up to support your theory?

Okay, so I have the doctor that has examined my client and says that he has PTSD and he can

sort of explain how an individual, even if someone is walking away from them, could still feel

that they had to use deadly force.

And it's this sort of, it's this concept of hypervigilance that someone that's been through

a traumatic situation has a sort of heightened level of fear.

And you see this with everyone.

You see it with, you know, a common one is domestic abuse.

Women that have been through a lot of domestic battery, maybe they're in a situation where

they're not about to receive abuse immediately, but they think it's coming around the corner

and they react and they might use deadly force.

And that would be an example of someone that's hypervigilant.

And he was explaining to me that, you know, when, when the human response to fear is called flight

or fight and it's an automatic involuntary reaction to fear.

If you believe that you're in danger, you react without thought.

And it's actually called flight, fight, faint, freeze, which a lot of people don't know.

And that sort of lends a different perspective on it.

If you're in a terribly frightening position, sometimes your reaction is just a faint and

people wouldn't consider that a voluntary act, right?

But that's a survival instinct.

Sometimes you just freeze.

You feel paralyzed.

People don't think of that as voluntary.

Fight and flight also can be involuntary.

And so if my client's level of fear was so high, and if you think about it, you know, he lives

right there.

He lives on the street.

These guys had come and they knew where he lived.

He couldn't go anywhere.

They had already put a gun in his face.

When he was on the stand, he explained that, uh, he said one time they came up to him and

they said that they were going to burn his tent when he was sleeping.

And that was quite the image right there.

I definitely, you know, use that in my closing argument that, you know, that's the, that's

the kind of fear that he was experiencing every night living on that street.

You know, he's, he's in a war zone.

And so his fear and his, his hypervigilance was at an all time high.

And in that moment, when him and this individual were speaking, that person said to him, next

time I come by here, I'm going to, you know, I'm going to kill you.

And my client just freaked out.

And so wait, is that what he said?

The guy said to him.

Cause he, yeah, we walked by him one time and the, the person, okay.

On the video shows the, the victim walking by your client and he says something to your

client, right?

And your client says something back.

He says something to my client.

He looked over his shoulder and he, he said something to my client.

My client looks up, doesn't realize who it is at first guy turns around.

My client realizes who it is.

And then he goes and he gets the gun.

And when he comes back and he's talking to him, the guy comes back up and says, Oh, you're

still here.

Oh, you're still here.

You snitch bitch.

You're still here.

I thought we told you to get out of here.

And my client said, I'm not going anywhere.

This is where I live.

And the guy said, well, I'm next time I come back here, you know, just going to end it.

Something that nature.

My client just freaked out.

Just shot him.

So.

And did your, did your client look, how composed did he look in the video during this incident?

No, it's hard to say.

It was, you want to say like, uh, like what?

I mean, if I'm the prosecutor, you're trying to, you know, trying to play him out as someone

who's, who's very composed, thinking things out.

He's not acting, you know, in that heat of passion.

As you mentioned earlier, he's, he, he knows what he's doing.

And I'm assuming that's something that they would have argued in their cases to say, if

he was really that concerned, he would have been at least on video looking like he's freaking

out, frantic, that kind of thing.

Yeah.

You know that they, they made that argument, but I think mostly they made the argument that

my client is just a liar because when he goes and he speaks to police the next day, doesn't

say anything about, doesn't say anything about it.

He goes through the whole hour saying, it's not me.

I swear to God.

He said, I swear to God a hundred times.

Hey, it's me again.

I have a question.

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Thank you.

So can I, can I sum up your, your prep work?

Cause it seems like you got this serious case, but you got records and you got a doctor.

I've got some records.

You got some records.

Not a lot.

Some.

Okay.

A lot of them are prison records.

Right.

Not ideal.

I did find the hospital records from the time he was shot and the bullet grazed his head.

Okay.

That was huge.

And then we did find one person on Skid Row that was a wit.

That was a witness.

Okay.

Not to the shooting, but to a previous incident where, uh, my client had been harassed by these

local guys.

By the victim initially by the victim specific and three other people and the gang members,

the gang members.

And, you know, just to be fair, like, you know, my client was calling this person a gang member.

This Skid Row witness was calling this person a gang member.

This Skid Row witness also happens to be a gang member.

Um, the victim that, that, you know, was shot in my case, didn't have a tattoo on his body.

Not one, you know, when I called the gang expert to say, Hey, they're saying he's a part of a gang

and he doesn't have one tattoo on his body.

And he was over 40 years old.

This guy, the gang expert said to me, I cannot help you.

Right.

So it's not a traditional gang.

It's not a traditional gang.

Are there gangs in Skid Row?

Skid Row is kind of, uh, open territory.

There's a lot of gangs that go down there to sell drugs.

It's not claimed by any one specific gang.

So I can't imagine a gang taking pride in that neighborhood, right?

Like, I'm serious.

You know, like if you're the Skid Row gang, you're not really respected.

I feel like, um, there's, yeah, people want the territory.

I mean, speaking, that's another thing.

Another thing about this case that was wild.

Speaking to all, cause I did speak to a lot of people that, you know, knew my client and wow, what a journey it is speaking to people out on Skid Row.

So, and then the main way that we found witnesses for this case was when people were arrested, cause that's kind of the only time you could find them.

So the one way.

Deal witnesses.

Deal witnesses.

Yeah.

So it's like, Hey, we're looking for Michael Smith.

Where's Michael Smith?

Nobody can find Michael Smith.

Then just one day, you know, you're on the computer.

Oh, Michael Smith has been arrested.

Oh, now I can speak to Michael Smith.

So that was, that was the only way.

So we found two witnesses to.

You would periodically just look to see if anybody's been arrested.

You're checking periodically.

Periodically.

Yeah.

Yeah.

We had names.

And my investigator was too.

That's awesome.

Yeah.

That's hard to do.

Something like that.

Yeah.

So like a sticky by your computer, remind you like check for Michael Smith on Tuesday.

So, so who does the prosecution call?

Yeah.

What's, I mean, and I'm sorry, but all the prosecution has is the, the report, the video, the video and your client statement.

That's it.

Right.

They, they have the first responding officer.

Okay.

They have the body cam video for when he shows up and where the victim is all of that.

They have the crime scene investigation photographer.

I took photos of all the scene.

They have the detective and they have the hour long interrogation.

So they put the detective up, the hour long interrogation.

They play it all the way through.

The detective also testifies to when he saw my client before on the street and he also denied it.

And is that in a police report somewhere?

That was in police reports.

And that's all right.

I didn't mean to cut you off, Michael.

I just wanted to set that up.

And so they don't have a motive either.

They have no motive.

And they say that in their opening, they, they say, they emphasize that they don't need to prove motive and that they don't know why, but the why doesn't matter.

And I get up and that's the first thing I say is the why is everything.

The why is everything and the why is everything, you know?

So it made my opening very easy.

And you get sent out to trial, right?

Did you, what was any 402 motions?

Motions to limit evidence?

Yeah.

Well, we had a lot.

We had, um, one thing that definitely came up was that the, the witnesses from Skid Row that I wanted to put on the stand.

They had extensive criminal histories.

They were obviously in, both of them were in custody at the time, uh, of my trial.

So I wanted, you know, I wanted my clients, witnesses to be able to get on the stand without being completely prejudged.

And what kind of crime are we talking about misdemeanors, felonies?

We are talking about very serious crimes.

Okay.

Very, very serious crimes.

Um, the judge, thankfully, uh, you know, the word that's used is sanitize.

Um, which means that, you know, the jury learned that they had long felony records, but not the specific, but not the specific charges.

Uh, you know, the evidence code says that you're only to consider that stuff for whether or not someone's being truthful.

So whether or not they're being truthful, just as long as you know, it's a serious felony, uh, that's, that's pretty much enough.

You don't need to know the details.

And I got lucky with that.

The thing that I was most worried about was, you know, this person was in custody for his own open case.

Right.

So what I was really afraid of and what we're, you know, the motions before the trial were about were, you know, I want this guy to testify.

He has important information for the jury, but he also has his own case and his fifth amendment right to worry about for his own trial.

So he obviously doesn't want to go up on the stand and talk about his own case and hurt himself.

Does, um, didn't he have a lawyer though too?

He was representing himself for a little while and then he did have a lawyer of his own.

And then when the lawyer found out he was going to testify, the lawyer freaked out and called me and I spoke to her.

And I explained to her, you know, what I was looking for and she spoke to him and he still wanted to testify, you know, he still wanted to do it.

So the, the sort of agreement was that if any point he was going to say something that would hurt his case at that point, I would object.

We'd go to the sidebar.

I'd have to call her.

She would come to court.

And if that happened basically, and he had to stop testifying, his testimony would be stricken and, you know, we missed trial, possibly a missed trial.

So what kind of jury are you looking for, for this type of case?

I wanted a jury that understands Skid Row.

You know, I don't want, I didn't want a jury that sees this as a place where everyone there is a criminal.

Everyone should be behind bars or somebody that, you know, can't understand the context of what people are living through out there.

Because I wanted them to understand the fear, the fear element of somebody like, you know, I wanted people that had been there.

That was number one, who's been there, you know, because you don't get it until you've been there.

You really don't.

Even, you know, the day the jury took the case to go to deliberation, I went through Skid Row to go get lunch.

I went through, I didn't stop there.

I went through.

And every single time you go through there, you're just blown away.

It just, it never gets normal.

You know, you never get used to it.

So what kind of questions did you ask then?

In your voir dire slash jury selection.

So I asked about Skid Row, just their experiences.

You know, do you think people want to be there?

Do you think it's a choice to be there?

What are your experiences at Skid Row?

I just wanted to get their feelings about it in general.

And then I started asking about mental health and trauma, if people have had traumatic experiences.

And it really worked out for me in a sense because, you know, when you bring up that question,

I don't know if it's because people want to leave the jury, but people are very open about their trauma.

And you get a lot of just like visceral reactions, right?

Like people that were there for a school shooting and they experienced a school shooting.

And there they are in front of the whole panel of other jurors.

And they just break down crying.

They just can't control it, right?

And so I definitely use that.

And the end of the case, we've all experienced trauma.

It sticks with you.

When you think about it, you can't control your emotions, you know?

And you don't even need these jurors to be on the truck.

They just experienced it there in the courtroom.

They experienced it right there, you know?

And so that, and then we talked about mental health a little bit, about explaining actions

through mental health.

I think the prosecutor even brought this one up.

He was talking about Winona Ryder and how Winona Ryder, you know, steals something from

a convenience store.

And, you know, automatically everybody blames mental health.

Why?

You know?

And just a conversation of that nature.

Did the DA voir dire on, hey, is it okay if I don't know an element of a crime?

Would you guys hold that against me if I don't know something and have no evidence for a particular

element of 187?

Or could you be fair to both sides?

Be fair to the prosecution?

I'll say one thing of note.

My jury had, I think, only two African Americans and one had to leave immediately because of

hardship.

And then the other person was pretty outspoken and was kicked off the jury pretty quickly.

And my client was very upset that he had, you know, out of 55 people that we had in there,

he didn't have one person that was black.

Because your client's black.

Because my client was black.

And he wanted the jury of his peers.

He got really upset.

He just, you know, and he's a nice guy, but he was obviously getting very anxious throughout

the trial.

And that was one thing that he really didn't like.

And he almost didn't want to go forward when he saw that there wouldn't be anybody that

was black on his jury.

Why was, what was that juror doing or perspective juror doing that was so outspoken-y that,

was it kicked for cause?

No, not kicked for cause.

Oh, okay.

It was a peremptory challenge.

A juror is excused for cause by a judge if they cannot be fair and unbiased to either

side.

A peremptory challenge allows either side to excuse a juror without giving a reason.

However, it is unconstitutional to excuse a juror based on race, religion, or ethnicity.

Generally, the defense will excuse jurors that tend to believe anything a police officer

says, while the prosecution kicks jurors who have had negative experiences with the

police.

He just, you know, he shared his experience as a black American, as a black male American.

That's enough to get you kicked off a jury.

Just be a black male American and experience the world and share it.

So, how much of that interrogation video did they show during their case?

The entire hour, 10 minutes of interrogation.

I mean, that's basically their big argument against your theory.

That's their main argument.

And then, that's the main argument and then everything that comes from it, right?

The fact that my client never told anyone means that nobody can check on any of this stuff,

right?

He could just be making it up.

And then, in addition to that, just inconsistencies in the story.

So, the witness that we put up, you know, he wasn't the best witness.

He couldn't really explain his story very well.

How amazing is it that you...

Oh, he's in custody.

That's right.

He's in custody.

Yeah.

So, my only other witness is coming out in, you know, county blues.

But you don't get to dress him.

No.

And he's got, you know, I'm not trying to...

If I dressed him, he's still handcuffed and has a sheriff sitting right next to him.

So, dressing him, you know, what would that really do?

What kinds of things are you cross-examining on during their case in chief?

You know, I basically got mad at the detective.

And I said, you keep on asking him why.

And you keep on saying you want to know the why.

But you never show him the video so that he can just agree on the what happened.

You know, you kind of did this Abbott and Costello bit.

Where he's like, we want to know why it happened.

And my client says, tell you why it happened.

I don't even know what happened.

And they just do this over and over and over again.

And I, you know, went through the interrogation.

Like, all the points at which this exact same bit just happened over and over again.

That was your cross?

That was my cross.

And I said, you know, before you and your partner went in there to do this interrogation,

did you guys have a strategy?

And I was like, no.

They just went in and they did it.

I was like, so you went in there looking for a confession,

like you would in any other case,

where you didn't have a video and you didn't know what happened.

They always, because they always say that in every case.

They're always like, we have a video.

We just want to see if you're being truthful.

And they don't have a video.

They're lying to the person.

Yeah.

I asked them about the prisoner's dilemma.

I asked, you know, like the famous example of what police officers do.

The prisoner's dilemma.

You take two co-defendants, potential suspects.

You don't know if they did it.

You put them in separate rooms and you tell each of them,

your boy is ratting on you in the other room.

First person that spills the beans gets a deal.

You know, and that's how you get a confession.

You split people up and you lie.

You say that guy's telling the saying you did it right now, you know,

and then undercover cops, you know, police, they work in this.

They use deceptive tactics to try to figure out what happened.

In this case, they had what happened.

And they still just went into this interrogation trying to figure out what happened.

And I just tried to make it, you know, I was like, you see how ridiculous this is, right, officer?

And Dave, you might find this a little crazy.

Yeah.

The officer, the detective, was not completely unethical.

What are you talking about, Benny?

Benny, what are you talking about?

What did he say?

He somewhat agreed with me on the stand that they're interrogating.

He's like, yeah, I mean.

Wait, was he feeling the Benny?

He was feeling the vibes.

He was feeling it.

He was feeling the vibes.

Oh, man, I got to tell you, I'm glad we can kind of laugh about this case.

It was, I went into a deep, dark place during this trial because I liked my client so much, you know.

He was like a really, really nice guy.

What else, any other things you were hoping to do on the people's case or try to establish?

Not really.

I knew that this case was going to come down to what I presented.

So what was the order of your evidence and presentation then?

So I started with my witness, my jailbird witness, Michael Smith.

You want to start off strong.

Yeah.

Oh, man, I was so worried.

I had the second witness lined up after him, but after the first one, I was like, we can't do that.

And I just, like, that's it, this guy.

The other guy was actually not in County Blues.

He was in County Orange.

He was shackled around his waist.

I was just like, oh, man, I can't just keep on walking these guys out.

Well, they will him in there like Hannibal Lecter.

I know, right?

These are the people vouching for my client.

And then after him, finished with the jailbird witness, and then my client.

My client testified for about a day.

And that was it.

How did you start your client off?

How did I start?

First thing with my client, we addressed the interrogation.

It was the first thing that we addressed.

First thing.

What was his explanation?

What did he say?

He was saying, you know, I thought they were trying to trick me.

So I lied the whole time, you know.

And I played that one portion where he sort of cracks.

His voice cracks.

And I asked him about that.

And he explained how.

And he even said, which I thought, you know, he was, I thought he was so good on the stand.

We kind of had this policy when we went, when he went up there.

And I said, you know, just like, don't worry about saying stuff that might be bad.

You know, like, you're in your store and you're selling stuff that's stolen.

Just own it.

You know, just own that.

Where'd you get this?

Why'd you get this gun?

Where'd you get this gun?

Just own it.

Just like, just, you know, they're going to get, they're going to know if you're up there lying.

If you're lying, this jury will perceive it.

And, you know, we don't need to lie.

Right.

We don't need to, you know, change your story.

Your story is good.

Just be yourself.

And he did a good job of that.

Not that I would tell a client to lie.

Right.

Of course not.

Right.

Don't lie about small things.

If you think that that's going to, you know, be important to you, don't do that.

You know, be truthful.

We talked about Skid Row and his store on Skid Row.

And then we just immediately went into these threats.

What happened in these threats.

And then we sort of worked backwards and talked about these people threatening him and harassing him.

And then we talked about the day the incident happened and how he was feeling that day.

And then I asked him about, you know, his past experiences with violence and trauma.

So you end on the trauma.

I, did I end on the trauma?

I don't recall exactly how I ended, but that was kind of how I, you know, the progression was generally how it went.

And then, you know, he had his cross-examination and that lasted a long time.

And it was tough, you know, because a lot of this stuff, you know, we have these old medical records and, you know, he lied to a lot of psychiatrists.

We have old police reports and he's lying in these old police reports.

You know, he's lied a lot in his life.

And he's admitting that.

You know, he's lied a lot in his life.

He lies to police.

When he goes to the hospital and he has a bullet graze, he's lying to him about what happened.

Because he's not trying to tell the truth about what happened with this gun violence.

He lies to suit his needs.

That was the prosecutor.

That's the prosecutor.

Exactly.

Right.

That's exactly what they said, you know.

But I came back with, well, when can we believe him?

You know, because if we have, if we don't have corroboration, he's lying.

But then this time when a bullet grazes his head and he's saying it's a traumatic experience, the prosecutor said, this wasn't traumatic.

He left the hospital within an hour.

And I'm like, okay, so even when we have corroboration, he's still lying.

When, when can his story, when can a person on Skid Row's story ever be believed or be understood?

You know, and that's why I needed people that understood Skid Row because, you know, his, his storytelling in his life.

And it's, it's unbelievable, you know.

It's, it's not something that one can understand or know.

You just kind of, you kind of had to take him on his, take it a little bit on faith that people that end up there, end up there for a reason.

So.

Then anything else with your, with respect to your client's testimony then, or do you want to add?

He did a really good job.

You know, I thought he was able to, I think the most important thing about him testifying was that the jury understood.

My theory here, which is that this person is not a sociopath.

Listen to him talk, you know, see him and how he's explaining what his, what's going through his head and what's happening to him.

And then when you see this video and you see a man that's almost 40 years old that has no violent history, right?

He basically only sold marijuana his entire life.

Never joined again, nothing, no violent history.

What would drive a man like that to act in this way?

And it was genuine fear, you know?

That's your closing argument, right?

Yeah.

Far more impassioned and eloquent.

Right.

Of course.

Yeah.

One of the main things I tried to do in closing arguments, number one, to stress that manslaughter is a very serious crime.

People, and it is for everyone out there.

Manslaughter is incredibly serious.

People do get a very significant amount of jail time for it.

A lot of people think manslaughter, oh, you got away with it and you're going to be released tomorrow.

No way.

Okay.

That's not how it is, especially when a gun is used.

That is not the case.

How long is the jury deliberating?

Jury deliberates for three hours.

So not too long.

Dude, those are OJ numbers.

And so what do you think?

Oh, I think they came back with a murder verdict, right?

Because how do you...

How do you disqualify it?

How do you get there so fast?

Like, the packet of jury instructions is thick.

And at the beginning of the trial, I said to my client, I didn't know where this will go, but at the very least, we get to tell your story.

Yeah.

You know?

At least we get to tell your story and 12 people will hear it.

And now maybe more people will hear it.

Right.

You know?

Because of this show.

And, you know, maybe if he hadn't done that, maybe there would have been a small article in the newspaper somewhere where, you know, a guy running a store on Skid Row, you know, got shot himself or was burnt up in a tent.

Like, that could have easily happened and nobody would even know about it.

And, you know, just like we didn't know that 100 people fell out from Spice on Skid Row the same weekend that this happened two years ago.

Yeah.

You know, like, there's this part of town that nobody wants to talk about and nobody really goes through.

And the people there are real people.

And, you know, I sat down with this guy and got to know him and I still talk to him pretty regularly.

And he could easily, you know, in a different life have been, you know.

In a different context, he's a perfectly off a dude.

One of us on the show right here.

Yeah.

So.

He could be civil, you know.

So when people get desperate, they act desperate.

You hear these stories where, you know, something terrible happens or an adult does something awful.

And then you see that they had kids in the household or something.

And then you wonder where are those kids going to end up without guidance, without schools, without people looking after them.

And oftentimes they become people on Skid Row that, you know, that could have a case like this.

Right.

And we sort of forget the humanity and the whole, the whole story behind what led to this moment.

And we just want to label them as a murderer.

Because we always close the show with, we want to ask you, I mean, you are a public defender, right?

And for the record, Benny did nod his head yes.

That I am, David.

You know I'm a public defender.

Why did you want to become a public defender?

Well, why did I want to be a public defender?

I think it was, it was sort of like a job I fell into at the beginning because I wanted to be in court.

I didn't want to be in an office sort of doing paperwork.

I wanted to be doing trials.

But I've always been politically aligned with sort of this, this element of the system of people that, you know, just mostly they're just here because they're poor.

Like none of my clients, this entire concept of premeditation or someone that's like really thinking through a crime, none of my clients ever really are thinking through their crimes, right?

It's just stuff that happens as a matter of their life circumstance.

And I've always, I'd say very quickly, I just began to see so much humanity in all my clients and how they're just, they're not what you would think at all.

When I first took this job and I left my previous job, my boss got very upset with me because he said, you know who you'll be representing?

You'll be representing scum is what he said to me.

He said, you're going to be representing the worst of the worst.

And even before I met my first client, I knew he was wrong.

And it has been verified over and over again that the people that I have represented, even the ones that I don't get along with, are not that at all.

No.

Not at all.

But they're all people.

That's why they say you represent scum.

And I take that as a badge of honor.

I represent people, you know, and I care about everybody matters.

You can't just throw them to the side like that and call them, give them a label.

And because you give them a label, now you can treat them like this.

You think they're scum because you don't know them.

Let's be honest.

You know, get to know them a little bit and you won't see it that way.

Thanks for tuning in to this week's episode of Another Not Guilty.

Shout out to Daniel Mark, creator of A&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.