Mother Knows Worst – When Family Drama Meets the Courtroom

I moved to admit it and the DA argued against admitting it and the judge excluded it.

And I kind of went ballistic.

I was like, this is going to be, I was like, literally, this is my theory is that these

kids are lying to protect their mother.

This has now become a theory that my client called CBS on the mom.

My client called 911 on the mom.

Kids protect mom no matter what.

Kids always want to protect their mom.

She's their only parent.

Their dad's already gone and been deported.

What do you want to do when you want to protect your mom and get rid of your brother who's

a threat to your mom, in quotes?

You say he touched your penis in private parts.

Welcome to Another Not Guilty.

I'm David Moore, here along with my fellow public defenders, presenting to you the untold

stories of the criminal justice system.

Objection!

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

I prefer calling it the American criminal system.

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

In an unjust criminal system.

With the deck stacked against us.

And welcome back, everybody, to Another Not Guilty.

It's your boy, Davey D, here, presenting you the freshest not-guilties across these United

States.

You know how we do it up here on Another Not Guilty?

Only giving you the good stuff of how we public defenders dismantle the mass incarceration

system one not-guilty-at-a-time.

And I can't be doing this, can't be telling this story if it wasn't for my, if I didn't

have my awesome co-host Lauren Marie Manning at my side.

Lauren, how are you doing today?

I'm doing good.

It's been crazy, but I'm ready to get into this.

I know.

Lauren, you got a little bit of soot on your face.

You coming straight from the trenches right now?

I was deep in those trenches this morning, let me tell you.

You got some angst, some anger to get out on this podcast?

I think I unloaded on everyone in the courtroom, you know?

Oh, good, good.

Yeah.

Yeah, I even had the DA's boss in there this morning.

Oh, yeah.

Then they were cowering to you?

Oh, yeah.

Oh, yeah.

I had them coming down to talk to me this morning.

Let her have it.

I love it.

I love it.

Well, Lauren, we have a special treat for you.

I know you're from the Bay Area, and we have an awesome public defender from San Francisco

here as our guest today.

We have Alona Yanez.

What's up, Alona?

How are you doing?

Good to see you again.

Good to see you again, too.

I know.

You guys might remember.

Shout out to that Bay Area.

Yep, yep.

We do a write-up here in San Francisco, the San Francisco Public Defender's Office.

Woo!

Go Warriors!

Sorry.

Some of you guys may recognize Alona's voice.

She was also, was it season four, the season four opener?

Yep.

The Pornstachio, episode one, Pornstachio or something like that was the title.

Beautiful title.

Yeah, it was a great episode.

It's actually Yanez, not Yanez, but that's okay.

Oh, okay.

Yeah, you can correct me.

Just go ahead.

Just say Yanez.

A little N.E.A. on there.

Yeah.

It's hard because of the Y.

The Yanez is difficult.

Yeah, I know.

But I'm a white man, so it's, you know, like, we get a pass.

A self-issued pass, you know.

It's always self-issued, isn't it?

It's generally just living with that privilege.

That's great, Alona.

Well, I'm glad.

I'm glad.

So before you're Alona Solomon, and then so congratulations on becoming Alona Yanez.

Thank you.

Yeah, that's great.

So, but still a badass public defender as a Solomon or a Yanez, right?

It doesn't matter.

I try to meet camera quality.

Yeah.

So, what's up, A&G-verse?

Alona reached out to the podcast.

She says she just got out of trial.

She has an awesome not guilty show on this chair with her and everybody.

And so we're here to hear that story and find out what she did to dismantle the state's case and to stand up and fight for her client.

So, Alona, thanks for reaching out to the podcast, and let's get going.

So, Alona, in this particular case, what was your client charged with?

And by the way, Alona's client, Andy, was supposed to be with us today.

He's having some internet connection issues.

So, I'll just give him a call later, and I'll interview him about the case, and then we'll try to edit in some stuff he had to say and feel about the case when relevant.

So, you might hear his voice as the show goes on.

So, with that said, Alona, what was your client, Andy, charged with?

Well, he was charged with forcible oral copulation of a 10-year-old boy, aggravated sexual assault of the same 10-year-old boy, kidnap for child molest, forcible lewd and lascivious conduct with some very serious enhancements that make it life yet again, continuous sexual abuse of a child, the same 10-year-old.

And then there were two counts against a 13-year-old boy, forcible lewd and lascivious acts, and continuous sexual abuse of that child.

So, maybe we should state the obvious that your client was an adult.

Barely.

Okay.

He was 18 and six or seven months when he got arrested.

Ouch.

And facing multiple life counts.

Yes.

Life six ways till Sunday.

Did your client have a record?

No.

He had no record at all.

So, he started big.

He did.

He did.

No record to facing multiple life charges.

Okay.

Yeah.

Yeah.

Wow.

Okay.

And what did your client, what did he allegedly do?

What did the police report state?

So, the police report says that the police are dispatched.

And by the way, those are just all the horrible, bad sexual charges against a minor that you can get.

They're all life charges.

I don't really feel the need to go through what each of them means just for our own purposes, but those are like some of the most heinous things you could be charged with in the criminal system.

Oh, yeah.

Definitely.

So, the police report reads like this.

The officers were dispatched to the studio apartment where my client at 18 was living with his family about an altercation between my client and his mother.

The police show up, and while they're investigating a fairly de minimis one, they were arguing because my client was eating a cake that he had bought himself at Safeway after he got home from work in his bed.

And she didn't want him to eat in bed because of cockroaches.

So, she came and told him not to eat in bed.

And he ignored her.

He was looking at his cell phone, and he ignored her.

So, she called the cops?

No, she tried to grab his cell phone out of his hand.

She hit him, and she scratched him.

And he ends up kicking.

Like, kicking is a generous word for what he did.

He pushed her away with his foot.

And both he and his sister called 911.

The sister is 15 at this point, his half-sister.

And he's 18, and they both call 911 about this very de minimis incident.

Is there a DCFS history?

Yes.

CPS is what we would call it here.

I'm sure it's different everywhere.

But there is a long CPS history with his family, which I didn't know at the time, but I found out later.

Child Protective Services.

Correct, yes.

And had the police been called to that house before?

No, actually.

Okay.

Well, not since 2012, let's put it that way.

So, the officers didn't know, because it had been nine years in between the last time there was an incident that led to the police being called to the studio apartment.

All right.

So, the police are called for this de minimis physical altercation between your client and the mother.

And what happens next?

They separate my client and his mother.

The Spanish-speaking officer talks to the mother.

Some English officers are talking to my client.

And his 10-year-old half-brother walks into the hallway during this.

And basically, the officer, one officer starts to just chat to him.

Hey, how's it going, kid?

And the kid says, I'm fine.

But you see my brother over there, Andy?

He touches me.

And he essentially spontaneously tells the police that my client touches him.

And then the officers, what the police report reads is that they're supposed to call SVU in such a situation because they don't know how to interview children about these sorts of things.

And they claim that they called SVU.

And the SVU people said they weren't going to respond to the scene and to go ahead and interview this child without, you know, any training on how to do that.

And, oh, yeah, go right ahead.

Turn off your body-worn camera because you don't need to record these interviews.

What?

Our policy says that you can turn off your body-worn camera when interviewing a sexual assault victim or a child.

So have you had these...

Does the police report say that?

The police report says...

The police report said that.

It doesn't say that second part.

It says we called SVU and they didn't want to respond.

They told us to go ahead with the interviews, an investigation.

Okay.

Have you...

First of all, every time you say SVU, I just hear it in my head.

Dun, dun.

Like the law and order.

Anyway, have you tried these cases, these types of cases before?

No, this is actually my first ever child molest.

Because a lot of...

Down here, at least, a lot of times what you'll see is there's a special person who interviews specifically sexual assault victims who are children.

They even have a special room.

It's like brightly painted with clouds and there's a camera recording the whole thing.

And the kids can draw pictures or point to dolls.

And it's meant to be a safe space for the kids, but also to have the interview handled in a way that's not suggestive to the kids.

And you have a police report specifically saying in this case, nah, we're not doing any of that and we're going to turn off our body-worn video.

Yep, that's exactly right.

And we do have those here.

And I did know that even though I hadn't done one of those cases.

I've had physical abuse of a child case before.

And I had seen those interviews happen before.

We call it KSARC, the Child Advocacy Something, Child Abuse and Child Sexual Assault Center or something like that.

I can't remember what it's called, but something like that.

And there's a woman who's been there for over 20 years who has extensive training.

She's a social worker.

There's two different cameras.

There's, you know, and they do things, like you said, they ask questions a certain way and they know how to try to not be suggestive.

Right.

Okay, so the cops go ahead and they turn off their cameras and they go ahead and interview the kids.

What happens next?

So they interview the 10-year-old first.

And he says that my client drags him by the arm from the safety and security of their studio apartment into the stairwell of the multi-unit apartment building, which has probably 200 residents and three stories.

And there's security cameras, by the way, all through the hallways, at least.

So you would have seen the dragging if that had happened or could have been caught on video, necessarily would have been.

And that my client on multiple occasions forcibly orally copulated him in the stairwell.

I think they say four times and then touched him somewhere.

We don't exactly know 30 times because the officers are so untrained at this that they don't ask a lot of clarifying questions that a normal interviewer might ask.

Sorry, did you say he'd been touched 30 times, like on 30 separate occasions?

Yeah, that's what he says.

But as I asked, the officer never specifies is it 30 times that his penis was touched or was he touched his chest 29 times and his penis one time?

It's unclear.

It just says he was touched up 30 times.

Yeah.

Okay.

Really great interview.

And that's the 13-year-old.

I mean, sorry, that's the 10-year-old.

The 10-year-old.

Okay.

Okay.

And then the officers go and interview the 13-year-old who says, but I found this out later how that happens.

But essentially, the 13-year-old then says, oh, well, my brother, he's been touching me also on the bed over my underwear more times than I can count.

Did they separate the kids for this interview?

They did.

The kids were not in exactly the same.

They were both in the hallway with their mother and three or four other cops, but they weren't together at the same time.

But as it came out later at preliminary hearing, I found out that the officer actually told the 13-year-old, hey, so we heard this, that your brother's doing this to your 10-year-old brother.

Anything like that happen to you two?

Speaking of suggestiveness.

So really, really bang up police work right there.

Yes.

Yes.

You can't be asking leading questions like that to kids because they are so suggestible.

So this is your initial police reports that the police respond because your client actually and his sister call because mom is losing her shit over cake in the bed.

And when they get there, the 10-year-old is the one who says, hey, while you're here, let me tell you something.

And they interview 10-year-old brother and 13-year-old brother sort of separately, but in the same vicinity in the hallway so they can hear each other and also do all the stuff we talked about.

They turned off their body-worn video and asked questions inappropriately.

These are all in your initial police reports.

Yep.

And then was there a supplemental report?

So the inspector, there's an inspector's chronological investigation.

The inspector gets assigned the next day from SVU.

And he doesn't do a whole lot more.

He does a little bit.

He basically calls up KSARC, the center that we talked about, to try to see, oh, do we want to schedule something?

And apparently the KSARC lady says, oh, no, the police reports very thorough statements.

So we don't want to re-traumatize them.

That would be a bad idea.

And so we're not going to do a KSARC interview.

But, you know, maybe they could come in for a forensic exam if they want to do that.

And so they do get a forensic exam.

The 10-year-old actually gets a physical and, you know, questionnaire one, that OES form they do.

Do you guys have the same OES form, Dama?

So we have sort of, we have the SART form.

But the allegations are touching an oral copulation, right?

There's not sodomy.

Correct.

So the physical exam is to check for what?

Unclear to me.

Right.

Very unclear to me.

Okay.

Did they have any conclusions from the physical exam?

No.

Nothing that was consistent with sexual abuse.

The 13-year-old does not do a physical exam, but they do the forensic nurse questioning just unrecorded, again, because it's not a KSARC interview.

But they have a forensic nurse sort of go through the questionnaire with him, the SART questionnaire.

So we have at this point no physical evidence, but we have the statements given by the two younger brothers that indicate the touching, the unlawful sexual touching.

And because the one brother said it happened 30 times, that's the continuous sexual abuse charge, right?

And then we have, because he said that your client dragged him by the arm out into the stairwell against his will.

That's the kidnapping for sexual molestation.

Exactly.

Okay.

And then the other one also, because he said it happened more times than he could count, 15 or more, that there's also continuous sexual abuse on him, but only lute and lascivious.

No oral, yes.

No oral cop, just the lute and lascivious touching.

Because he was touching him over his underwear.

That's the lute and lascivious touching they're saying happened over 15 times.

Yes.

Okay.

Okay.

So is there any other pieces of evidence in the discovery, in the initial discovery?

There's this follow-up report with the forensic or the SVU sort of.

Was there any statements by your client in the police report?

Oh, yes, there was.

The statements by him, besides about the cake thing, they do interview him on body-worn camera, actually, which was really helpful.

And they interview him in English, even though his English is, he's only been in the country a few months, and he does tell them, actually, when they ask him, is it okay if we do this in English?

He says no, and they do it anyway.

He said, well, we're just going to start in English, so, you know, you can ask later.

And he asks for a lot of clarifications.

I know, right?

It's fine if you don't actually understand what we're saying to you.

He also tells them, like, when they read him as Miranda Wright, so, like, you have the right to remain silent, do you understand?

No.

What don't you understand?

Silent?

What's that?

And so I have to explain it to him, and it's really, it's ridiculous that they don't use a Spanish interpreter.

But he essentially says, he does give a statement.

He says he wants to talk to them.

They ask him what happened at night, and he tells them about the cake thing, and he says his mother scratched him, and he shows a scratch.

And he says, and then they say, well, you know, we heard some of the other things that you've been touching your brothers.

Have you been touching your brothers?

He's like, no.

And then they start asking him about, like, roughhousing, anything like that.

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

And he talks about how they watch anime, and they imitate anime.

And, like, okay, well, what does that mean to you?

And he says, well, you know, pinching.

Sometimes we pinch, or we do, and he imitates, like, Flinch, the flinch game.

He shows them the slinchies.

And that's about, and, like, is that it?

My client's a baby.

He is a baby.

He's very young-looking and very small.

Well, we're going to talk about when you go meet your client in a second, but go ahead and finish the, you say he was pinching and doing what?

He just says, like, roughhousing.

Was it more useful?

Yeah, like, play fighting.

He actually calls it play fighting.

And then he says, oh, but my mom, but we don't do it anymore because my mom told me it's illegal.

And the cop's like, what do you mean?

He says, well, you know, someone could get hurt even by accident, and then that would be bad, basically.

And so we don't do it anymore.

Was there a statement from the mother in the police report?

Yes.

So the mother says that the 10-year-old never told her anything.

She didn't know anything about any of this.

And she says that the, she claims that the 13-year-old told her three days prior that my client had touched his private parts.

It's very unclear that she, that he told her not to tell anybody, not to report it, because my client threatened to throw her out of a window if he told anybody.

And so she didn't tell the police because of that.

Oh, boy.

Wait, your client threatened to throw her out if he told.

That's weird.

Okay.

And then you said this is a studio.

Who else lives there?

You said, I heard you say a sister, a 15-year-old sister lives there as well?

Yes.

This is a very, very tiny studio apartment.

It is one room.

There are bunk beds.

And then there is another, like, single bed and a couch.

And then there's a closet where somebody else sleeps.

So when the police get there, the people living there are my 18-year-old client, his 10-year-old, and I guess they're 10 and 14 now, because the 13-year-old turned 14 when the cops arrived.

The 10, the 14-year-old half-brothers, the 15-year-old half-sister.

And they don't actually do anything about this, but it is corroborated that a man comes out of the apartment.

They don't ask who that man is, but he's renting the closet.

He sleeps in the closet.

He's like a tenant.

They've subletted the closet in their studio apartment to a man that is not related.

So you don't know who this, this is just a random guy who.

Yeah.

Yeah.

And then there's the mother, of course.

Okay.

Oh, there's one other thing I forgot to mention that's in the discovery, actually.

In the chron, when the, the, in the chronological, the sergeant runs the names and he finds out, and this is how I found this out initially from the report, that the half-sister, who's 15, was molested by their, these, these kids' father in 2012.

The father gets arrested for molesting the sister, half-sister.

She was only six at the time.

And the father gets deported, not prosecuted, just deported, arrested and deported.

What were your initial thoughts when you first saw the, the charges in the police report?

My initial thought was, there's something weird going on here.

The fact that there's this other 2012 thing is weird.

The fact they live in this tiny little apartment.

Well, that could be a motive to want to get rid of somebody.

And it also was clear, I forgot to state in the police report, that my client had only been there for seven months.

He just moved there from Guatemala.

And so I could understand, I was thinking in my head, wow, I guess he's a stranger.

He's not really part of the family.

He just shows up and it's this tiny studio.

Well, that's a good motive to want to get rid of somebody.

Also, isn't it kind of weird that, you know, they, there's a spontaneous statement like this.

And isn't that kind of weird that there's no recordings of these statements and these officers summarizing stuff.

That's what I was thinking.

Or is it weird that like, or the kids just come out and say it when the police show up to investigate abuse by the mother.

Exactly.

The mother had said the 13-year-old had told her that he was being touched three days before, but not, the 10-year-old never said anything to her.

Correct.

Did the mother say that after receiving the report from the 13-year-old, she went and asked the 10-year-old?

No, she didn't say anything about that.

But, oh, I forgot to also say that in the police report, the 10-year-old tells the officer that he did tell his mother about this, which I thought was also weird.

He says, I told my mom, she told me to keep it a secret and not to tell anybody.

And the mother says, no, no, no, he didn't tell me, which I thought was weird.

Here's another question.

You said your client just came from Guatemala.

The 13 and the 10-year-old, were they born here or did they come from Guatemala?

The 10-year-old was born here.

The 13-year-old was born.

Oh, no, they both were born here.

Yeah, they're both born here.

So you don't have a situation where, like, they were potentially molested by someone else as they were crossing.

Correct.

Yeah, no, they came, they were born here.

Well, let's, all right, Alona, let's talk about when you go meet your client.

Was that, tell us about that day.

That was, I guess, close in time to the arraignment, right?

Yes, that's right.

So the first thing I noticed is just how small and innocent he was.

I used to work at Juvie with juvenile clients.

And I was like, he's a kid.

He's a child.

He is very, very small, statured, very, very thin.

His feet barely touched the floor from the chairs in the courtroom at arraignment, which I noticed immediately.

And he just, he has a very innocent, sweet demeanor, the way he talks.

He's very unsophisticated.

He, I mean, even the way he talks about, like, he just, like, he just wants to play.

Like, he's like a, he wants to play video games.

And, you know, he's, like, very innocent that way.

Were you concerned about competency?

No, not at all.

I could tell he was smart.

Like, he was clearly intelligent.

He was just very earnest.

That's the word I would use.

He's earnest.

And so what did he tell you about the case?

He told me that he didn't do any of these things and that none of this happened.

And I, he also said, and I found this out late.

I don't remember if he actually told me this in the initial meeting or not.

I think, I don't think he did, but I found out about it later from the CPS report that his

sister told him, like, threatened him and said, if you do, if, if something happens to

my mom, I'm going to tell the, I'm going to tell the police that you, you are touching

my brothers.

The sister?

That was on prior occasion?

No, that day, that night.

So I just don't remember if he told me that at that time or not.

He may have.

And I just don't remember.

But I'm confused.

The sister who also called the police on their mother, she said this.

Oh, she's not calling the police on the mother.

She's calling the police on my client for kicking the mother.

Sorry.

Oh, that makes sense.

So your client called the police on his mother and simultaneously sister called the police on

your client for kicking mom.

Got it.

That's exactly right.

I'm sorry.

That was weird.

I thought sister was calling about mom as well.

Yeah, no, she wasn't.

She was calling about my client and she was trying to protect the mom.

Okay.

So then you find out that she had told your client that if something happened to her as

a result of your client calling the police, that she would levy this allegation that your

client had been touching the brothers.

Yes, that's right.

Lovely family.

Okay.

Yeah.

And then the only other things I really found out about him were I found out more about,

you know, I got some basic background information.

How long had he been here?

Was there anywhere else he could go?

Did he know anyone?

And that's how I found out about his social worker, Olive, who was a social worker at the

International Rescue Committee.

And he explained that he was given the social worker after he crossed the border and he was

at a shelter for unaccompanied minors for a while in Texas.

And before he came to San Francisco to live with his mother, he also had an immigration lawyer that I called.

So I got that background information at that point, which enabled me to call the social worker and find out more from her and try to see if I could come up with a release plan to try to talk a judge into releasing an 18-year-old with no record and a lice case in the middle of a pandemic.

So wait, how long was he in the, I guess, the child detention center in Texas for?

Almost a year because, and this is something else I didn't find out at the time, I found out later.

When he crossed the border and went to Texas shelter, they have to, you know, they have to do background checks, right?

They don't release unaccompanied minors to people without making sure that they don't have a CPS history.

That's why it took him, they wouldn't release him until a week before his 18th birthday because of his mother's CPS history.

Oh, this kid.

Wow.

Yeah.

Yeah.

So, okay, so your client, so you talk to your client and so your goal, you leave that conversation to your client with your goal of trying to get him released, right?

Number one goal, trying to get him released.

Number two goal is to do some investigation, try to get if there's any surveillance footage from the apartment building, try to talk to the family, find out more.

Yeah, and I requested the 2012 report on the sister.

Okay, so just go ahead and just tell us then what happened next in the case.

Did you just start doing, you started working on everything, I guess.

Yeah.

All, right, so can you just, well, go ahead, what do you want to talk about first?

I'll talk about the release motion.

Okay, so you're, this is your release motion, this is, so you're going in front of the judge and you want to, you typed up a motion saying you want your client to be released, right?

On his OR, his own recognizance, like what was the, tell us about the, give us some background on that.

So I put it over a week and asked if the judge detained him without prejudice so I could file a real motion.

And I filed a motion that included a lot of stuff about juvenile brains and juvenile law and talking about how if he was under 18, how different the potential consequences would be if it was just seven months ago that this had, this arrest happened instead of now.

I also, after talking to the immigration lawyer and the social worker, they, I said, is there anywhere he can go?

Can you find a program or something that he can go to?

And the social worker knew of a shelter for victims of human trafficking.

And I found out that my client had a letter from the Department of Homeland Security.

This is 2021, 2020, during the first Trump administration, that my client was designated a victim of human trafficking by the Trump administration.

And he had a letter from DHS that said that.

Then they get him into this shelter in the East Bay and I filed this motion with the letters and attachment, with emails or something proving that I had a bed available at this program.

And also the stuff about, like, juvenile brains and juvenile law and also that he's not a flight risk because, you know, he's not going to go back to Guatemala.

And at the time, we still had ankle monitoring.

We don't anymore.

It's a long story.

It doesn't matter.

So the ankle monitoring was the was the second piece that they they demanded.

And it happened.

So they did put him on an ankle monitor.

That's a crazy motion.

And it was it was the motion successful.

It was it was I was I was shocked.

The DA was shocked.

I couldn't believe I got him out on a life case.

And it was it was it was huge.

And I think part of it was I also included some of these things that you've pointed out just from the police report that are kind of hanky and weird, that there's these inconsistencies that the 10 year old is saying I told my mom and she told me not to tell anyone.

And the mom saying, no, he never told me.

And, you know, the fact that this comes out because I was like my client called the police.

Like, that's how this is coming out.

This is this is there's something weird going on.

So at this point, you have an 18 year old CSEC victim as a client who's out on a house arrest facing multiple life counts.

Yes.

House arrest and a shelter for victims of human trafficking.

Awesome.

OK, that's that's huge.

That's so huge, because now, I mean, it's the pandemic.

You don't have to worry about him being stuck in custody.

Anybody that is anybody knows that, like, it's way it's way more advantageous for the defense if your client's out of custody and it just gives you that much more time.

Their their mental health is is they're in better shape and they're better able to cope with dealing with this this criminal system and the stresses that come with it.

So there's not there's less pressure to plead.

Yeah.

Yeah.

When they're already out of custody.

Yeah.

Yeah.

Good.

Good job, Alona.

I know.

That's already a win.

Let's go.

That was.

I know.

People listening to this podcast are going to message me asking me for your bail motion, by the way.

Probably true.

Yeah.

And just for all the all the conspiracy people out there.

Now, the law on bail is everybody gets out.

No one goes to jail.

Right.

Is that what the law on the on bail is?

What can you can you tell us what it is?

Just so that people know the judge made it.

Well, what is it?

The law requires that the judge consider two things, which are public safety.

Is your is this person that's threat to public safety?

And the second one is, is this person likely to to flee to evade the court's jurisdiction?

So they want to know about the person's community ties, what they're doing.

They want to know if they have a record.

They look at the actual police report allegations.

Is this person really a threat to public safety?

Or is there are there less restrictive alternatives than be sitting in jail while the case is pending?

So, yes.

You're like, yes, judge.

He's not a threat to public safety because he's got no record.

He called 911 on his mother.

He is a victim of human trafficking.

He's vulnerable.

You know, stuff like that.

He's not a he's not a he's not a flight risk because he's not going back to Guatemala.

Right.

That's well, in his safety was in jeopardy.

If his feet barely touch the floor and he's already a CSEC victim, he should not be in custody with grown men.

And with those charges, if they find out what the charges are, he's going to have a big target on his back.

Exactly right.

Exactly right.

And I said those things to Lauren.

So nail that one.

Yeah.

We're a good team.

Great thinking there.

You should have done the smell motion.

I just interview the good lawyers.

That's all I do.

I just interview the good lawyers.

Okay.

That's great.

So now your client's out of custody.

Now let's talk about the development of the defense.

Where do you go from there?

So my amazing badass investigator, Leti and I went to, we made an appointment with the mom and we went to the studio apartment.

We took a bunch of photos.

Without me, she talked to the manager and she took photos of his security camera screen to show where all the cameras are located in the building.

And, and we tried, we talked to the mom and tried to get her to let us talk to the kids, but she wouldn't let us.

But she, and, and we didn't talk too much about the allegations at that point.

It was kind of more general, you know, some background information and what did she want to see happen.

And, and it sounded even then like they really just wanted him gone.

And they didn't really think, they didn't really want prosecution very badly at that point.

It wasn't, I mean, they were willing to prosecute.

They're willing to testify, but it's certainly, they weren't gung ho or anything, which some people are, which was interesting.

Um, and then the next things I did were really, um, start investigating.

What did you, you said, you said you went to the studio, right?

And the, and the apartment complex, did anything stand out to you or did you notice anything that?

Um, I noticed that, uh, it's three stories and, uh, there are a lot of apartments.

I noticed that it was tiny.

This, it was a very tiny space and I could, it's sort of, my initial theory was they wanted him gone because it's such a small space and they didn't want to share it with a stranger.

That was my initial theory.

Um, my theory changed over time.

Did you have any dates of any of the alleged incidents?

No.

And that's an excellent question because that's why we couldn't get any video surveillance that would have shown that.

Yeah.

Yeah.

And they actually preserved video for six months, which I thought was astounding, uh, because they're motion detected.

Yeah.

It's motion detected cameras.

What about this?

There was a stairwell.

I imagine there's several stairwells in this apartment building.

So was there a specific stairwell that this supposedly happened at the, one of the incidents happened?

That is a, that's exactly right.

That's a very interesting question because, and I messed this up.

I didn't realize which stairwell it was initially.

I thought, um, uh, so the stairwell between the first and second floor, there are three or four of them.

Um, the one I thought that it was, was the one closest to the front door where all the mailboxes are, which I thought was weird to begin with.

I was like, how's, how's that somebody not going to catch this happening?

Uh, as it happened, I was wrong and found out that I was wrong later, uh, right before the trial started actually, that it was a different stairwell, that it was one where, uh, there's supposedly no surveillance cameras and it was in the back.

So I never actually saw that stairwell in person at the time.

Um, okay.

So then where do you go next with the, the investigation?

Um, so having to, okay.

The other thing that my client did tell me after more conversations is that he had called, essentially called CPS on his mother, uh, via his social worker two months prior.

He, um, I didn't have an exact date, but he told me my mother punched my 14 year old brother.

Um, and so I told my social worker because he had a bloody nose.

I told my social worker, Olive, um, she's a mandated reporter.

So I thought, you know, I need to get, I already wanted CPS records about the 2012 sexual abuse of the 15 year old half sister.

Right.

And then I, so I included that in my petition for juvenile dependency records.

I also included in my petition that I was informed and believed that my client, that there was an allegation of physical abuse by the mother against the 14 year old, um, sometime in 2021.

In the spring.

And that it was made by this social worker and I've had her name.

Um, and I was, so I requested all that.

I requested, I requested, I also subpoenaed the kids' school records.

I never actually got them.

They wouldn't give them to me.

I put in, uh, um, I wrote a declaration under seal about what I wanted and why I thought they were important.

And they said there was nothing responsive.

I wanted things about behavior issues or sexual acting out, things like that, or, or anything about, uh, lying and dishonesty.

Um, nothing in the school records, but I did subpoena those.

Because those are things you would expect to see.

There are signs usually when, uh, not all the time, but usually there are signs when a child is being sexually abused, that even if they don't speak out and say exactly what's happening to them, you will see disruptions in behavior at school and things like that.

Yep, exactly.

Um, yeah.

So I thought about that too.

Um, and other than that, it was, it was the, those were the main things that I did that not too much else.

And I prepared for the preliminary hearing.

So you couldn't get the school records.

You couldn't get video from the apartment complex.

Did you get the DCFS records you asked for?

I did.

I don't remember if I got them before the prelim, um, or not, but I did eventually get them.

I got about 150 pages of, of records.

And you couldn't get statements from the kids, but you had a statement from mom.

Yeah, not, not exactly.

I mean, not really a statement because it wasn't about, uh, anything specific about the facts, but I had this statement to the police is all I really had.

I met with the mom, but she wouldn't really talk about anything.

So, so really, despite all your investigation, the only evidence you were able to obtain that might potentially be helpful to your case were DCFS records.

That's right.

And, and CPS records, right.

Exactly.

And what's, uh, and I don't think I had them.

Oh, I did have them before the prelim.

I know that I had them before the prelim.

Here's how I know why.

Uh, because that incident in April where my client told his social worker, the mandated reporter about the mom punching the 14 year old brother in the nose.

Uh, it was documented in a CPS report in a long report in which it said due to this family's lengthy history with CPS, they treated it as an emergency referral and sent someone right over.

The social worker who goes over and does a full questioning.

I think he uses something called the three houses method, which you may be familiar with child forensic interview techniques where they say there's the happy house, the, you know, the, the house of dreams, the house of worries, and the house of something else.

And it's to try to get kids to talk about the things in their, like, what's in the house of dreams?

Like, what would you want to make your life better?

Oh, I want a PlayStation and a cat.

Uh, what's in the house of worries?

Well, I'm worried that, um, I don't do enough, my homework well enough, and I'm not good at school or something like that.

Or my mom, uh, there's the, anyway, the point is they actually use the technique that they're trained to use because they have a master's degree and they know how to question children properly.

And they do, in fact, do a full, what they call global assessment.

They ask the kids if they're being sexually abused and both of them say no.

And I quote, if anyone ever touched my penis, I would tell my mom and she would call the police.

That's in April 2021, two months before, during the period where my client is supposedly molesting them, um, two months before the arrest.

So, they weren't able to give you any specific dates, but did they tell you the time period, approximate time period this had happened?

Yes.

So, both boys said, uh, the, uh, the 13-year-old said that my client started touching him in December sometime and, uh, that the touching stopped in March.

And then he moved on to his brother, according to the, that's what the 13-year-old says.

The 13, the 10-year-old said that this started also in December and, uh, and kept going till the, basically the week before the police came.

So, from December to June, May, June.

You have this CPS report from April saying they'd never been touched.

Never been sexually abused.

And if they ever had been, they would tell their mom they know what that is.

They know what bad touch is.

So, this feels like a really strong impeachment.

It's a really big deal.

And I had to, you know, figure this out for prelim because I didn't know if they were going to bring the kids or not.

And in my legal research, I learned that if the kids had testified at prelim, which they didn't, and I didn't cross-examine them with those, like, you know, question them about talking to that social worker.

And then at trial, they refused to testify and they want to use the transcript.

I wouldn't be able to get it in because I didn't confront them.

And so, I have to think a lot about that.

It seems like these kids have had lots of contact with government agents and have learned buzzwords and things to say when things are going wrong.

And now they know that if mom's about to be arrested, if they just say they were touched based off forensic interviews they've had in the past, that they know it's a thing.

That's exactly right.

You hit the nail on the head on that one, which I didn't think about until later.

But kids who have too much exposure to CPS, they know what to say.

If you want to not go to foster care and stay home with your mom, then you say your mom doesn't hit you.

If you want to make somebody that you don't like go bye-bye, then you say they touch your private parts and they will be gone.

And these kids know this very, very well because of the 2012 incident with the sister and because of other exposures to CPS.

Yeah. All right. Let's talk about the preliminary hearing. How did that go?

I'd say that it went about as well as it could without the kids testifying.

And what I mean by that is I spent most of my cross of the CPS going through all the things that they didn't ask, including, oh, so it could have been 29 touches to the chest and only one touch to the penis.

And it could have been 29. You know, you didn't ask this. You didn't ask that. You didn't ask when this happened.

You didn't ask. You know, I went through all the things that they didn't ask about.

And before I did that, I went through their total lack of training in forensic interview techniques.

And I actually had printed out a bunch of stuff for myself to be educated on what's important.

So are you, you know, officer, fair to say you're not aware about the importance of the location of an interview, that it be a safe space.

You're not aware about talking to children about what a lie is versus the truth.

And to correct you, if you say something wrong, you're, you know, you're not, you don't know how to ask questions that are not leading.

You didn't know that was important. Right. And if you had known that, you would have done it.

And, and so I got all that out, which was, which was helpful.

And, uh, oh, and the, the, how important it is to record things that they didn't remember how they asked the questions or what questions they did ask because, you know, they throw away their notes and it's not recorded.

So they just wrote down some notes, some like summaries of what the kids said.

Yeah. So that became one of my themes, of course, at trial later.

And that's why I wanted to really nail that in a prelim.

It's like, you guys really don't know anything about child forensic interviews.

You don't know what you're doing and you don't remember how you ask these questions.

And, um,

Is the prosecutor handling the prelim, the prosecutor that also did the trial?

No, that was a different one. Actually, they changed.

Okay. Are you, are you, have you been dealing,

By the time the prelim happened, have you been dealing with the same prosecutor up until at least prelim?

Yes. And she was very convinced that my client was guilty and very vitriolic about the fact that he was released.

She, I mean, I thought she was actually putting him in danger whenever we were in court because she'd say all these terrible things on the record.

And I'm like, there's an audience here. You're going to get him killed if you don't shut up because she'd be like, oh, and he did this.

And then he touched them and he dragged them. And it's like, okay, um, right.

Every time there was like a motion to modify the terms of his release, can he go to school?

It cannot be an exception to home detention on ankle monitoring. Is that cool? Can you get a job?

You know, if I, if I did any motion, she would tell the judge all the bad facts in front of everybody.

And so it was very vitriolic and, um, and she did the prelim and for, I don't know why she didn't call the kids, but she didn't.

You probably have the same thing in, uh, in your County in LA where, uh, whether or not a DA chooses to prop one 15, it's like, it's a hit and miss it.

Cause they don't want you to get a first run at their victims or their witnesses.

But on the other hand, they don't, they, they call them, then they get to see how they stand up to cross and they, they get a better sense of the strength of their case.

So it's like a give and take what's, whether it's worth it or not for them.

And then the judge, when he held your client to answer, did the judge have anything specific to say about the case or just how to answer, move on, whatever, you know, like.

It was a rubber stamp.

And, and actually the part that offended me the most was the 209, the kidnap, because I actually asked the cop this.

I said, do you, in your opinion, is somebody more likely to get caught orally copulating a child in a stairwell or in the privacy of a studio apartment?

Um, and the cop's like, um, in the privacy of the studio.

I was like, so you'd say it would be, uh, more likely to get caught and maybe, uh, the person could get help that way.

And so basically he gave me the, like, he undermined the elements of the aggravated kidnap at prelim.

And I was like, how did I, how did my client get held on this?

Oh, there's one other fact I forgot to mention.

I don't know why I forgot to mention this, but it was in the, it was in the police report.

There is a camera in the studio apartment.

That's why I remember that.

The mom had set up a surveillance camera in the studio.

That's an interesting, like facing the door or facing the closet where the strange man was living like a troll.

I mean, what are we?

In the corner.

So it's only one room.

So it kind of sees everything really.

It could see the bunk beds.

It could see the couch and the, and towards the door.

Basically from the corner of the room towards the door.

How close in time to the arrest?

Like, was it two months there for three months, a year?

It was definitely there before the April because it's referenced in the April CPS report.

They asked her about it.

Was there any evidence on the, on the camera or lack thereof?

Any good videos, bad videos?

So my client said that it recorded.

So I did, that was the other piece that I forgot, I completely forgot this stuff.

Investigation did was I subpoenaed the mother to get information on the camera.

I wanted the serial number, the login user ID.

And so I forced her to come to court and they basically, she came in and said, well, it doesn't record.

And the judge basically sent the DA's investigator and my investigator together to the apartment to take pictures of it and check to see if it really recorded or didn't.

She claimed that it was just a live feed and it didn't record.

My client said it did record.

And it's in the body worn camera.

When my client's being questioned by the officer the night of his arrest, he's telling them to get the camera, check the camera.

Because this whole thing with the site with his mom in the bed with the cake, get the footage.

Is there anything else you got to do to get ready for trial?

So it sounds like you have a CPS report with an inconsistent statement from the minors.

Were there any offers?

That's kind of it, really.

We never really did any offers because, you know, with his immigration status stuff.

And also, like, their bottom line was going to be sex offender registration, which was a no-go no matter what.

So, I mean, it's kind of, my theory on this is, if you're charged with murder, and they're like, why offer you a misdemeanor battery?

Just dismiss the case.

If you can't prove it, dismiss me.

Like, I'm not going to plead to my client to misdemeanor when you're charging him with life.

And basically anything that they would offer would have been a deportable offense and would have carried registration for him as a sex offender, which is something we try to avoid.

Yes.

Can you tell us what your client's, like, what was he doing in the immigration court?

What process?

Was he trying to get asylum?

Is that what he was seeking?

I think it's actually a trafficking visa.

It's a T visa, I think.

But I'm not 100%.

Oh, T?

Okay.

I'm not an immigration lawyer.

I don't know exactly.

But I think because he had that letter that he had a special.

He was eligible for more than one status.

Let's put it that way.

Yeah.

Okay.

Okay.

All right.

So then anything else we're doing to get ready for trial then at this moment?

Oh, I got an expert on child suggestibility or what?

Yes.

Suggestibility and forensic interview techniques.

Okay.

And related to memory, things like that.

And how, you know, she was able.

And the one thing that the expert did that, her opinion that was the most powerful to me was she said that there's actually studies that say that when a child is really being sexually abused and they are explicitly asked.

Like, yes, it's true.

A lot of kids delay report.

That's true.

Delayed reporting is the one thing that is actually true.

And from, you know, some of this stuff.

But if a child is asked by a trained social worker, is someone doing this to you?

It's very uncommon for a child to say no to that if they're really being sexually abused, which I thought was significant.

Especially since you had that CPS report from April.

Yep.

Exactly.

So this expert was going to bolster the statement by the children in the CPS reports.

Being like, hey, this is the most truthful statement they've made.

This one right here in this report back from April of 2021.

Okay.

Great.

Anything else?

Anything else in terms of getting ready for the for the jury trial?

The other part was, I think I aged the case somewhat intentionally, maybe intentionally and unintentionally.

Part of it was the pandemic.

So cases got aged that way.

And the other part was sometimes.

Alona!

Defense aging a case?

Well, it was a pandemic.

Get out of here!

Get out of here!

Actually, there was another thing.

Get out of here!

I know, I know, I know.

We never do that.

We never do that.

You do not do that.

Never.

That's crazy talk.

The other reason I did that was to file an RJA motion, a Racial Justice Act motion on the 667.61 enhancement.

Those are the life enhancements for the aggravated kidnap.

But it didn't end up going anywhere.

It took too long.

And basically, my client was like, okay, let's just go to trial.

And I was like, you know what?

He's innocent anyway.

Screw the enhancements.

If he got convicted, I could RJA those then.

But, you know.

What did you feel, the Racial Justice Act, what did you feel about your case fit for that?

Well, I started to do some statistical analysis of who in.

So, there are 667.61 enhancements of a variety of kinds.

There's the burglary one, like rape during a burglary, rape with a weapon, things like that.

Or, you know, all these different ways of making sex crimes life.

And I looked at who got charged with those.

And it's basically black and brown people.

And so, shockingly.

So, I was trying to do, essentially, I did the discovery part of it to ask for everybody who was arrested for a sex crime.

And did get a 667.61 enhancement.

And everybody was arrested for a sex crime that also involved a burglary or a kidnap.

And so, I was looking at all those statistics.

I feel like the Racial Justice Act was like a nice gesture.

You know, like, let's end, you know, anything that's, you know, based off racism in the criminal justice system, that case gets dismissed.

And it's like, well, if you look at the stats, it's black and brown people.

Well, then we would have to dismiss every case.

And we can't be doing that.

So, we need some other type of evidence.

Well, what other evidence exists under the Racial Justice Act?

So, I don't, it's still very.

The judges I have experienced are not too keen on listening to those.

They're not excited.

Yeah, it looks so great on paper.

And it's had so much promise.

But we have not been very successful yet in our county anyway.

I saw, I don't know if you, are you, are you guys aware of the Finley case?

It's like the first published decision on what is a prima facie showing for an RGA?

No, we have an RGA unit here, a person.

And so, we just call her.

She knows all this stuff.

We go, hey, we need you to handle this.

Wow.

Well, Finley's my case.

So, we took a writ when we were denied an evidentiary hearing and we won.

And I got an evidentiary hearing.

So, I actually really liked the RGA and thought it had a lot of promise.

And now I have come to agree with you that it was a really lovely gesture that is not going very far.

It sounds nice.

Yeah.

Yeah, it sounds nice.

Yeah, it does.

Okay.

So, you know, it's funny.

It's like this case is just like, I mean, just really serious charges.

You got a lot of serious charges your client's looking at.

Looking at a life case, you got some records.

But it's kind of like there's not a lot of evidence.

There's definitely a motive to lie.

It's suspect how even the interview happened or how even the allegations arose.

And really, you're just going to go into court and just say it's not.

It's just that proof beyond reasonable doubt, it sounds like.

Had you disclosed to the DA your April CPS report, the previous interviews?

Or were you holding those close to use as impeachment?

That's a really great question.

So, the new DA gets assigned.

And one of the things she realizes is that the case, her file is kind of a mess.

And so, she actually does that due diligence and does things right.

And she obtains the entire CPS file for this family, all 700 pages of it.

And she sends over one of those.

It's called a Stewart notice.

You may know about those.

It's like a Brady letter saying, like, oh, by the way, you might want to file an 827 petition on this case.

Because there might be impeachable information in that that I can't give you without you.

So, 827 is the court order allowing you to look at all the juvenile records.

Access to the CPS records.

And I was like, oh, so now you know.

So, I literally called her on the phone.

And I was like, oh, okay.

So, when I told you that I had dynamite impeachment, that's why I wasn't going to talk resolution.

You know what it is that she's like, yeah, that's not good for me either.

And she calls the kids in and tries to interview them to see if they're going to be cooperative a few months before the trial.

This was in July 2024.

She calls the kids in and they completely changed their stories and retracted all the oral copulation.

And all of a sudden, it went from only, it went from 30 times or four times to one time, basically.

So, she interviewed them and gave you the statements?

Yes.

Did she dismiss any charges?

She, not really.

No.

No, she didn't.

She really didn't.

She amended.

Come on.

But not really, no.

They're saying there was no oral copulation.

We're still going to charge him with that.

Yeah.

Yes.

Lauren, we don't have time for all these silly questions, Lauren.

We don't have time for actual justice.

They don't dismiss it?

She did her due diligence, just not her due justice.

Yeah.

I mean.

But this new DA, though, this new DA sounds like she's a step above the other DA, at least, right?

She told you, hey, there's 700 pages here.

Just file this and you're going to have a lot more impeachment evidence.

And she brought in the minors to interview, just to see how legit they are, to create another statement, which was good for your case.

So, you know, some DAs don't even do that because they don't even want to know.

At least this DA.

Yeah.

I mean, do you like this DA better than the other one?

Yes, I do.

I genuinely do.

What good does it do is that she wanted to know, but then was like, I don't care.

I'm still prosecuting him for this.

Well, actually, without going too far into it, I don't and I don't know anything specific, but I think, you know, everybody has supervisors.

And I get the impression from other DAs that sometimes their ability to do the things that they would like to do are hindered by supervisors.

So here in L.A. County, the sex crimes DAs, they're a special unit.

They're called the BIP unit.

And those supervisors are notoriously unwilling to dismiss charges and allow the DAs handling the case to settle stuff for things that we would like to.

Yeah, I think that there was some of that happening, probably, because I think that I'm pretty sure that the DA knew that her case was not very strong.

And even just arguing oral copulation when the kid's denying it to you and you know that if you can, if he even is willing to testify and you drag him to court, he's going to say that there was no oral copulation.

You're going to get up in front of the jury and say you should believe what he said in 2021 to the cops.

Right.

So now you're about to go to trial and the DA knows about your impeachment evidence.

It's sort of not really impeachment at this point since you now have the new statement, the updated statement, where the alleged victims, the complaining witnesses, are saying your client didn't commit half the stuff he's charged with.

And I assume then you also told the DA that you had your expert and provided the CV and everything and what they were going to testify to.

Yes, and they provided me their expert in child sexual assault accommodation syndrome, CSAS.

God.

What's that?

You don't get those experts in L.A.?

That's what I haven't heard before.

Accommodation syndrome?

What's that?

So it's a little bit like intimate partner violence experts where it's a way of justifying a recanting victim.

Oh, OK.

OK.

Yeah.

Or, oh, there's inconsistencies.

But jurors, you should ignore them because that's very common among child sexual assault victims.

So did you get a report from their expert?

Yeah.

Their expert did not write a report.

She, because it's all these, there's like these five things they always say, the five elements of CSAS.

This is the first time I'd heard this testimony, to be honest.

So I didn't know all that.

But I did a bunch of research and I had a second chair, another attorney from my office, who actually did handle that witness.

And in Lemonade motions about that.

But she didn't know anything specific about the case.

She had no, she didn't review any discovery.

It was just generic testimony of, this is what I know from my, from my training experience and my review of literature and this theory that was come up with by this psychologist in the 70s.

Yeah, that's, I mean, that cross-examination is pretty easy.

Did you interview the kids in this case?

No.

Did you review it?

Did you see any of their video interviews?

No.

Oh, okay.

So then you can't really opine as to these particular kids.

No.

All right.

So the kids, on their recant, they said there was no oral cop.

It was just touching.

Yeah.

Is that correct?

The 10-year-old who is now 13 by the time of trial says, when asked, did he ever use his mouse?

The response was, ew, gross, that's gay.

Amazing.

I thought that was pretty good.

Okay.

Okay.

Yeah.

All right.

So then anything else before we start talking about the jury trial?

Any other developments?

How's your client, by the way?

How's he been throughout the life of the case?

He's been out of custody for a couple of years trying to live.

He's out of house arrest, really, so he can't really go anywhere.

No, no.

I got him off of that little by little.

He went perfect.

He never violated anything.

So eventually I got the ankle monitor off and eventually he.

Oh, okay.

Yeah.

He moved out of the shelter for human trafficking victims.

He moved in.

He moved to Gilroy with a friend of his and which is, you know, the other south of San Francisco.

Garley capital of California.

So he moved away from town.

That's far away.

That's like, that's like Gilroy's like two hours.

Yeah, it's on the way to Monterey.

South, south of the bay.

Okay.

So that was my biggest concern.

Actually, that was one of the reasons.

I had one continuance that was based on trying to get him some sort of temporary housing for the trial because I was really worried about him commuting from down there every day and how he was going to get there.

And public transportation takes like four hours and you have to leave at four in the morning or something.

And he eventually bought a used car.

He was working at a job at Wendy's actually.

And he was still living in a shelter.

This time it was like a homeless shelter for transitional age youth.

That's where he still lives, I think.

And so he did actually commute every day in a car.

Wow.

And the trial was like a week or two weeks?

How long was the trial?

Two weeks?

The trial was two months, actually.

Two months?

Over the course of two months.

Yeah.

Jeez.

Okay.

All right.

All right.

Any other developments before we start talking about the trial?

Anything else?

I think that's it.

We might have missed.

That's it.

Okay.

All right.

Let's talk about the jury trial then.

Are you sent out to a judge on the first day or do you already know what judge you're going to be in front of?

Well, okay.

One of the things that happened was in San Francisco, there's so many trials that they run out of trial courtrooms and they start sending you to this other courthouse, the Civic Center Courthouse.

It's the Civil Court.

And it's in different locations, close to City Hall.

And they do this with out of custodies only.

So the DA comes in and she's like, I don't want to go to.

To Civic Center Courthouse.

I was like, neither do I.

And she's like, oh, well, who's available and which judge?

And I was like, well, there's this one judge, but your office has been point-sixing him, has been challenging him and not going to him.

And I can't really figure out why, because I don't think he's very pro-defense.

But anyway, she's like, and she said, well, I don't know if I want to go there.

Anyway, back and forth.

I was like, well, otherwise we're going to Civic Center.

So it's on you.

And so she eventually agreed that we can go to this particular judge and she's not going to challenge him.

And her big thing was, am I going to really push the last day and make sure we have 12 in the box by the statutory last day?

And I was like, no, we have a lot of in-lemoné motions.

We have, I want to do a questionnaire.

I'm not going to be difficult about that.

We'll work it out.

Don't worry about it.

We'll work out the scheduling.

Because it was the holidays, too.

It was like right before Christmas.

Yeah.

Merry Christmas, a sex case.

Christmas sex case.

So we end up going to this judge and once we meet with him and he's like, is there any point in talking about resolution?

No?

Okay, cool.

What are we talking about?

Well, judge, there's 700 pages of CPS records and Ms. Yanez doesn't have them all, I don't think.

And maybe you should look at them and act as an 827 judge and decide what you think she should have that she doesn't have.

Yeah, I know.

That's pretty great.

So I got a bunch more stuff that I didn't already have at trial during the limited motions.

So she never gave you all 700 pages because some of that stuff's not relevant?

Not allowed to.

She had the judge go through.

She couldn't without a court order.

Yeah.

Okay, okay.

So you got some more stuff.

Anything good in there?

Yeah.

I found out that, so my client is an older, his two older sisters that were brought to the U.S. from Guatemala in 2012, a few months before the incident with

the half-sister.

And I found out that one of them had had a baby when she was 13 or 14 with a neighbor in the building a few months after the dad gets deported.

The half-sister is dead.

It's her stepdad, too, I suppose.

And that CPS gets called because of that by the hospital.

And it turns out that the father of the child is a 31-year-old man in the building.

And his twin brother is dating the mother of the kids.

They're my client's mother.

I know.

It's very confusing.

Yeah, it's really gross.

It's ill.

It is big ill.

And I found out that when the baby's born, they end up prosecuting the father for rape, or statutory rape at least.

And I found out that there were some inconsistent statements where the mother—sorry, my client's older sister tells CPS that their mother told her not to tell that the mother knew that she was having sex with this man because she'd get in trouble, basically.

A CPS or the police found out that the mother knew that she let her 13-year-old daughter have sex with a 31-year-old man, that the mother was going to get in trouble.

Yeah.

I mean, she wasn't married, but essentially that's what we're talking about.

So everywhere you turn in this case, there is sexual abuse history that the kids know about.

The kids who are the complaining witnesses in this case, they know there's sexual abuse history, there's CPS history, and there's history of mom not responding appropriately to situations with her children.

Yes.

And finding this big thing out in November, right before the trial, like during, you know, motions, basically, led me to then go to the civil courthouse, and I found a DV restraining order by the older sister against the mother.

Because she said that—and this was when she's 19.

She's 19, she's moved out of the house finally, and she says that her mother wants to have visitation with the daughter.

The grandbaby.

The grandchild, yeah, the grandchild. And that she doesn't want her mother to have visitation because her mother basically facilitated her getting raped by this man.

To trash her daughter.

Yeah, yeah. And that she took the man's side, and that she says—and in there she says, I know my mother has the ability to harm her children, to hurt her children.

I have—she talks about the mother choking the 15-year-old half-sister in front of her, repeatedly hitting the kids.

She talks about her mother beating up on her and her older sister.

Basically, physical abuse up the wazoo.

Which, I'm like, oh my god.

So, like, see, my client was telling the truth about when the mother punching his half-brother when he told his social worker that in April.

See, there's corroboration. The mother is physically abusive. It's true.

Good lord. So, that was huge.

Wow. Yeah. It's like, you know—I mean, can you even use that at trial, though?

Or are you just kind of, like, holding on to it to see if it becomes relevant at some point?

Do you think that's going to get into evidence?

I moved to admit it, and the DA argued against admitting it, and the judge excluded it.

And I kind of went ballistic. I was like, this is going to be—I was like, literally, this is my theory, is that these kids are lying to protect their mother.

This has now become a theory, that my client called CPS on the mom. My client called 911 on the mom.

Kids protect mom no matter what. Kids always want to protect their mom.

She's their only parent. Their dad's already gone, and he's been deported.

What do you want to do when you want to protect your mom and get rid of your brother who's a threat to your mom, in quotes?

You say he touched your penis. In private parts.

Yeah. Nice. So, that was one of the 402s, huh?

Yeah. And that's sort of a devastating blow.

Yeah. It was a devastating blow. I was like, ah!

Wait, question for clarification.

They ruled against you to bring in those records, but could you ask the sister, if you brought in the sister, about a history of mom being abusive?

I was only allowed to bring in, I was allowed to bring in one act of physical abuse by the mother under, because she's a witness, under moral turpitude.

Character for, you know, dishonesty or whatever, that she had, that the mother had been physically abusive.

So, I was allowed to ask the sister about one instance of physical abuse.

And, um, and that was basically it. I was not allowed to ask her about having a baby at 14.

I was not allowed to find out about the father of said baby.

I was not allowed to get into the DV restraining order that she thought her mother was, um, dangerous or violent against kids.

And that's why she didn't want her mother to have visitation with her child.

Any of that. All excluded.

I'm not surprised. I'm not saying the judge, you know, it's the right thing to do, but just knowing how judges work.

Once you start going to other incidences in the past about how horrible people are, you know, judges get really protective of, of prosecution witnesses.

Not defense witnesses, but prosecution witnesses.

But I do, I do understand your frustration over that though, because that's your defense.

You have a, you have corroboration that this mother has behaved in the way that your client says she has.

And that these kids are creating a diversion or a false story to protect mom.

And that mom has done this before. She's had her, she had the older sister do the same thing.

Don't tell the police, don't tell CPS or I'll get in trouble.

Any other good 402s?

Um, yeah, I won the Miranda issue. I didn't really even want to win it, but I did win it.

That's the next, the statement your client made on body worn video.

Yes, which was helpful to me.

I moved to, I moved, I asked for 402, because sometimes we do that anyway.

Like, you know, are you going to bring the statement in and, and I won.

It was just, it was just there from the previous, it was just, it was just there from the previous 402 motion.

So you typed out, you know, defense statement included, you just left it in, right?

It's just, it's just standard. We always move to, what, um, what was it that he said again?

He said, he said, well, he said, check the camera.

He also, uh, says, um, that he, like, that they engage in horseplay, like basically rush housing and that he's never touched them.

Oh, that's right. And the pinch, the pinching, right? The pinching and the, so, and then what was the basis for the, what was the basis for the Miranda?

The Miranda language violation language that they, yeah, annoying waiver and, uh, and the language issue that he was specifically asked, um, is it okay if we start in English?

If we, if we do this in English? Um, no, well, we're just going to do it in English anyway.

Well, what if, what if I just talk louder? Does that make it easier? If I suck slower and louder? Do you understand?

Yeah, exactly.

It's funny if you listen to this podcast, basically every single episode, the cops are doing something like this. We were like, are you, are you kidding me? Like, this is such terrible police work.

Yeah. And it's so basic. Like, he doesn't understand. Wait until you have somebody who's certified by your department to talk to him.

And that's the worst part is he, the cop testified at the Miranda hearing at the floor, too, that he had a certified Spanish-speaking officer standing next to him with a Spanish-speaking Miranda card.

Shut up. He did not.

He did.

And instead of, instead of using that officer, he was like, we're just going to go ahead and do this in a language you don't understand.

Even though two feet away, this guy could, could speak to you in the language you need. I can't. I can't even. He didn't even have to wait for someone to show up. I can't. Incredible. Right? Incredible. Just great judgment there, guy.

What city is this?

San Francisco.

Oh, it was in San Francisco. Um, all right. San Francisco PD, way to show out.

Yep.

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Okay. So cool. On to jury selection then, right?

Yes. We did a questionnaire.

Tell us, tell us, tell us. Okay. Okay. You did a questionnaire just to kind of like, what, what was the purpose of the questionnaire?

So, um, the judge we got sent to, uh, he, there's a lot of good, I could say about him, um, that I like and some things I like less. One thing he's really, really good at is voir dire.

I've done a couple of trials with him and he's very good at voir dire. He asks a lot of questions of jurors, follow up questions. Oh, you work in tech. Tell me more about that. What's your day to day? Like, oh, what's, which company? Oh, what kind of tech or whatever. And he'll really dig in and not just, um, cut, you know, whatever. Do it once. And he's very good.

Can you be fair? Great. Okay. Exactly. He also does a really good job with reasonable doubt and, and presumption of innocence, all that stuff. And so he said to us, he said, if you're going to have a questionnaire, I'm going to tell you right now, if you want a long questionnaire, I'm going to cut you short on voir dire. If you want a short questionnaire, I'll let you go longer. And I was like, you know what, I'm going to go short. And the only things I want in this questionnaire are sex and race. The things that people don't like to talk about. So I asked about, you know, stereotypes about Latino men.

And I asked about, um, about whether people had ever been sexually abused or were close to somebody who had been sexually assaulted or molested, either as a child or an adult.

So just for the people listening, the questionnaire is, you're not the one asking the questions. And that's why you wanted those questions to specifically be asked by questionnaire, because otherwise you're asking these questions in open court in front of the entire panel.

And the prospective juror has the choice of answering the question in front of everyone or doing the thing that identifies that they have sensitive information where they asked to answer the question at sidebar.

And everyone's like, Oh, I wonder why they have to do that.

Yeah, exactly.

So, or they just put it on the form on the questionnaire. They can fill it out.

So, um, so how, so you chose limited questionnaire, just to do questionnaire on sexual abuse and stereotypes of Latino men.

And then you'll, and then you'll volunteer to question the jurors on everything else.

So, uh, do you get anything good from the questionnaire was handed out first, right?

Before you questioned the jurors?

Yes. During hardships.

So anyone who didn't get a hardship granted got a questionnaire.

Okay.

As their press.

And was the question, was it good?

Yeah.

I mean, it was, I mean, it was helpful because you get, you know, a headstart to review everyone and you know who's coming up and you have the, your random list and you have your questionnaires and you can kind of follow up on some of the things they say in there.

And, um, some people got excused for cause just based on the questionnaire we stipulated.

And so that was helpful.

Some people had, you know, some very strong opinions.

Like there was a very brief summary of the allegations in the questionnaire, which was helpful.

Like, oh, you know, this, this, this person is accused of molesting their two half brothers.

You know, is there anything about the nature of this case that makes it impossible for you to serve?

And a lot of people were like, well, I signed it to be a fair and impartial juror.

And some people have said, well, if it's two brothers and they're willing to testify and they want to prosecute this case, then I am more likely to believe the kids.

Things like that.

That came up.

Oh yeah.

That was the other question I asked is whether anyone just based on the nature of the case is going to automatically, oh, children wouldn't lie about something like this.

Whether you're going to believe the kids.

And so there were a lot of questions that was in the questionnaire as well.

And a lot of people said, you know, believe victims.

I believe children.

I'll believe the children.

And so there was a lot of follow-up on that.

Do you want to tell us about your, your, your voir dire then and your questioning of the jurors in open court?

Yeah.

Yeah.

I'd love to.

Um, this is actually, I tried something new.

Um, I was very scared about this cause I didn't know it was my first child molest case.

But I, I basically got up and I talked about, um, I said, I'm not here to defend child molestation.

I think it's a vile, heinous, disgusting crime.

And I'm not here to tell you that this crime is acceptable or okay, or you should vote not guilty because it's okay to do this.

I'm here to, uh, to represent this presumptively innocent person who's presumed innocent and has adamantly denied these charges from the beginning.

And, you know, asserted his innocence.

And that's why we're here.

And I said, I asked whether there was a feeling in the room, whether even though there's a feeling of guilt in the room, whether there was a feeling of presumption.

And a lot of people said, yes, just the nature of the case.

And I was like, so even though the judge has told you, you have to presume in a sense, do you agree with me that it kind of feel, it doesn't feel that way in here?

And, and people said yes to that, which I thought was helpful.

And then I followed up with, uh, I said, uh, if I picked it on a juror, I said, if juror number five, if you were, if you were charged with a crime like this, how would you prove you were innocent?

And he said, I would never be in that situation.

And I was like, oh, really?

So then you think my client's guilty because otherwise you wouldn't be in this situation and you would never be in it because you wouldn't do something like this.

And my client's only in it because he did something like this.

Is that right?

And he was like, oh, oh, no, no.

Um, I understand.

Okay.

Okay.

I get it.

It was a, it was an interesting moment.

And then, um, and then my, the thing that I, that's, by the way, that's great that the juror, that's great that the juror didn't give you pushback.

He kind of like, was like, oh, I see what you're talking about and I see how I have a bias.

And now you've exposed that and, and was, he was open.

So with that, that was a positive interaction you had with that juror.

It's great.

The judge allowed it in front of all, I mean, to be honest.

I'm, I mean, some, I'm always, sometimes I get scared about asking a question to jurors about like, what would you do to prove your innocence?

Objection sustained.

Sometimes judges are very, the prosecutors and judges are very tight sometimes in LA.

You're supposed to ask any questions where you ask the jurors to put themselves in your client's position.

I've gotten that sustained against me many times because I like to do it anyway.

Yeah.

I think I, I think the way it came about was I was discussing burden of proof and like how it's, I don't have to prove he's innocent.

He's presumed innocent, but does anybody, you know, because of the nature of the case, I kind of had to have to.

And it's, it's all about the, it's all about the flow.

How you work around it.

Yeah.

Right.

It's, it's like, if you ask that question after being up there for 45 minutes, then you ask that question, objection sustained.

But if you ask that question up front, it kind of gets a lot, it's, it's not as noticeable.

You know, they're not tired of you or anything like that.

Yeah.

Um, that's, that's a great interaction you had with the juror.

Any other interactions you want to share with jurors or that you remember?

The other one that I did that I was happy about was I asked this question that I'd never asked before.

I said, um, I said, uh, so we all, does everyone agree that child molestation is a vile, heinous crime?

It's disgusting.

It's awful.

Yes.

Okay.

Now who agrees?

Who here?

Raise your hand if you feel that being falsely accused of child molest is almost as heinous as being, as actually committing the act.

And everybody raised their hands.

And I was astounded.

And I was like, oh, wow.

Okay.

And, um, so that was, I thought that was a good thing to ask to kind of get them feeling that way.

And then I asked, are you more worried about convicting an innocent person or shutting somebody free who really did molest a child?

What would you be more worried about if you had to be a juror?

And, um, I got some really interesting answers.

A lot of people said both, but one of the first years was like, I'd be more afraid to convict an innocent person.

Ooh.

Oh.

Cheers to that person.

Did you ask anybody, is, is anybody here a Drake fan?

Is anybody here a Drake fan?

I did not ask.

A minor.

Who here does not like Kendrick Lamar's, Kendrick Lamar's song?

Who here is offended by that, you know?

You're obviously hoping that one person is going to be your foreperson.

She was on the jury, but she was not my foreperson.

Um, anything about the prosecutors, Vadir, you want to share?

Um, I thought that she did a very, a pretty good job, actually.

I think that she, she did say, you know, I also, we, I also want there to be a fair trial.

I also want you to hold me to my burden and things like that.

And I, I thought she did a good job with that, actually.

Um, but, um, I don't think, I'm trying to think if there's anything really memorable.

Um, I think she asked some questions about what she asked about.

Yeah, I can't even remember what she really asked about.

I think maybe she asked about, like, inconsistencies.

Like, if there's inconsistencies, you know, how they're going to feel about that.

Or maybe she asked about circumstantial evidence.

They usually always do that.

So, I don't know.

I can't remember.

I honestly can't remember.

Okay.

All right.

Well, let's move on to opening statements, then.

Tell us about that.

So, um, I got some help from a colleague in this, which was really great.

Um, she taught me the chapter method.

So, you know, I broke my, because it was so complicated.

It's such a complex story that I felt like it was, I don't want it to be too messy.

And I, one thing I did do is I created a PowerPoint with a poster of the family tree so I could

point to everybody with their name so it wouldn't be so confusing.

And so I started with my hook, my intro, which was, and my theme, which was, uh, all children

love their mother and, um, would do anything to protect their mom.

Kids love their mom.

And I said, this is not a child molestation case.

This is a case about two kids that love their mothers.

And at the end of this case, the only thing that she's going to prove is that.

Yeah.

Thanks.

Props to Kelsey.

Instead of being like, this is a case about two lying little shits.

Yeah.

Yeah.

I, uh, I, uh, I went a little, a little bit more gentle there.

I'm very cautious.

Everybody loves.

Did not attack the kids.

Everybody loves their mother, except my client did try to call the police on her.

I mean, everybody else, everybody else loves their mom though.

My client sucks.

We joke about it, but it is a thing as the defense attorney, you have to be careful about

when you're saying there are two alleged victims that are children.

These are, you have to be careful about going in and attacking them and calling them liars.

Even if you think they are lying little shits.

Yep.

So, I mean, you found a nice way to, to gently give the jury away to set aside what they were saying

without harshly judging the kids, which is, it's not always easy to do.

And it's super important in a case where you have complaining witnesses like this.

You're, you're, you're humanizing them a little bit.

You're just saying they're just kids who love their mama.

They're not evil.

They're not bad.

Yeah.

We don't have to throw them in the, out in the river.

It's fine.

Like they just, they did this thing.

Exactly.

So, yeah.

So that was my, my hook intro.

And then I kind of told the story from two sides.

I started the story with the family.

I talked about the family and where they came from and, you know, the kids and everything.

And then I said, uh, and then in 2012, something absolutely horrific happened.

You're going to learn that, you know, the half sister was molested by the dad who gets deported

and sent away.

And why is this significant?

And it destroyed this family.

And I started rid of them.

Yeah, exactly.

And I talked about that.

And, and I had all this other stuff from the, from the CPS records of including the, the

kids were acting out sexually afterwards.

The half brother and the half sister were kissing on the lips, calling each other boyfriend,

girlfriend.

The half brother, uh, started blaming the sister when first he blames the mom for the dad being

gone.

And then when he finds out what really happened, he blames the sister and he thinks that she

lied.

And then, so I was like, why is this important?

Because this is the lesson here.

If you want to get rid of someone you don't like, you say they touched your private price.

And guess what?

It doesn't even have to be true.

It could be a lie.

That's what this kid thinks.

He thinks, you know, makes someone go bye-bye.

Also, it's great that, I mean, not for the girl, um, who was the victim of this, but it's great

that the dad or stepdad wasn't actually prosecuted or arrested.

The kids just learned that literally they go back, especially since your client had just come from

Guatemala, that he'll just go back to where he came from.

We're not actually trying to hurt him.

We're just trying to move him out.

Yep.

And, and yeah, exactly.

So I told that side and then I told the side of my, and I was like, and so this is all these

terrible things that happened.

And I was like, and my client didn't know anything about any of this.

And then I told his story, which is that he was, his mother abandoned him in Guatemala at age two.

And, uh, he was, he had to live with this awful woman who physically abused him, how that abuse

got worse when she found out he was gay.

I talked about the homophobia and the bullying that he endured and how horrendous everything was

and how he came to the United States, across the border.

And he, um, went to the shelter.

And I talked about him getting the social worker and flying to San Francisco a week before his

18th birthday and walking into this home, this tiny studio apartment, not knowing any of what

I just told you and this background and how all he wanted was a family.

He had this naive idea that he would somehow, um, finally have the thing that he's never had

before a real loving home with a mother who supported him and cared about him and loved

him and gave a shit and siblings that he could, you know, bond with.

And, and, you know, a real family, like it was very, very naive and how, you know, he tried

to become friendly with them and, um, you know, even like the slightest affection, he, he kissed

them on the cheek or the forehead and his mother took it in the homophobic way.

Like, don't do that.

That's, that's gross.

That's weird.

And, um, you can't be doing that stuff.

And then I talked about, uh, how, you know, and that was, so I talked about all that.

And then I talked about how he reported that not only did he realize that his mother was

distant and, um, not very loving and not affectionate.

The mother's not affectionate.

She doesn't let kiss or hug her kids.

He also finds out that she's, she's, uh, physically abusive because he sees her hit the kids and she

hits him too.

And, um, then he calls CPS on her or tells his social worker because he wants to protect

his half siblings from his mother.

And, uh, that they do, they, they essentially, uh, close ranks to protect her in April.

And then two months later, and they essentially ice him out.

And two months later when he's, you know, in bed with his headphones on, looking at his

phone, eating his cake and this happens and they're like, Oh, and then, yeah, they don't

want anything to happen to mom.

So they lied to protect her.

And that's what I told them in opening.

It's a powerful opening.

I'm sorry.

I gave a lot more, like sometimes, you know, sometimes we give openings that are a little

vague.

We don't exactly know what's going to happen, but I wanted them to know upfront that my theory

was that the kids were afraid to lose their mom.

And so that's why they said this stuff that night because they didn't want to lose their

mom.

What's the, you said the, use the, what's the homophobic element to this case?

You mentioned that in your opening.

Yeah.

But did we talk about that?

I don't remember.

What was, what was that?

We didn't really talk about that.

Was there an element to that?

It was about the affection.

So one of the things that comes up is that, so when the mother is interviewed by the cops,

when she, she says that her 13 year old son said that.

And when they ask if she'd ever said that he had touched his penis like three days earlier

that she had finally told her this, that it had happened in the past.

And, um, she also says, they asked her if she saw anything and she says, no, but I thought

they had a, there was something weird going on because, and she talks about affection.

He's always kissing him on the cheek and he's kissing him on the forehead.

And it's weird.

Why is he kissing and hugging my son?

You can't do that.

You can't kiss and hug.

And so affection became a thing.

And actually I did voir deer on that somewhat as well.

Um, and I, and that's where the homophobia comes in.

This idea that if you're gay, if you hug or kiss a male, that it must be sexual and it's

not.

And why does it have to be that way?

Yeah.

She thought that was weird.

Or just male affection, right?

Yeah.

Male, male, there can't be male affection.

Yeah.

Her male and female, female children were making out.

Did she think that was weird or?

Was that okay because it was girl on boy and not boy on boy?

Um, she, it was not okay either.

Okay.

Well, that's a relief at least.

Yeah.

Yeah.

And that was much more overly sexual.

Yeah.

Yeah.

No, that's great though.

I think, I think you're right that if you have the evidence, you have the story that

you want, you want to give the detailed opening up front.

You want the jurors to know what to look for, where you're going.

And it just makes you that much more credible when you prove it during the actual evidentiary

part.

So, um, let's talk about the people's case and how did that roll out for them?

Um, uh, but can I just tell you very quickly about the DA's opening?

Cause I thought that she, she did a defensive opening.

She came out swinging with, I have weaknesses in my case.

I'm going to tell you that she, and I was like, it was actually, it gave her so much

more credibility in a lot of ways, but I was surprised she talked.

That's rare from a DA.

It was very rare.

She didn't get up there and say, I'm going to prove it.

She said, you're going to, you're going to hear these different versions.

You're going to hear.

And she talked about the first, she did them in order.

She started with what he says to the police, then what he says to the forensic nurse.

And then what they say to, you know, her in July, 2024, and she doesn't know what

they're going to say on the stand, but she anticipates that the 10 year old's probably

going to say he was never orally copulated.

And oh, she also gave them the preview of my client telling the social work, calling

the CPS on his mother.

And that said that was going to be impeachment that these kids denied that they were being

sexually abused two months earlier.

So she opened on all that, which I thought was brave and probably the best possible move

under the circumstances.

Yeah.

And they don't do that very well.

Usually.

No, they don't.

Did she say how, given all these inconsistencies, that the jurors can still come back with

the verdict of guilty with proof beyond a reasonable doubt?

Because sometimes they'll be like, there they have different stories, but there's one common

thread in all these statements.

Or I've heard them say that before.

Like, is there something that they should kind of like give them to hang their hat on that

they can confidently vote guilty with?

Or just, hey, I don't know.

Everything's just different.

Who knows?

You know, like you'll have to decide it's a fact finder.

No, she did.

She said, you're going to hear from an expert who will help you understand some of these

dynamics of, you know, some of the impacts, some of the ways in which people, children

who've been sexually abused react to sexual abuse.

That's great.

That's great.

Okay.

You're hearing all these inconsistencies, but this expert's going to explain why they are,

how they sound.

But okay.

That's cool.

I like it.

I like it.

Yeah.

I'm intrigued.

Okay.

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

How'd that go?

So the very first witness was the 10 year old who's now 14.

And, uh, and he, I couldn't believe it.

The DA did something that I haven't seen a lot.

Again, breeze with her.

She asked him the questions that I was going to ask him.

She basically asked my theory.

She said, were you afraid to lose your mom that night?

And he said, yes.

And she's, I'm sitting there like my, my, my jaw is dropping.

She's like, why?

And he's like, cause she's my mom and I love her.

And then she's like, well, what did you think was going to happen?

And he's like, I thought I was going to go to foster care.

I was like, oh my God.

Wow.

And I'm sitting there.

I'm like looking at the jurors.

Cause you know, I'm sitting in the chair.

Are you getting this?

Like, I'm like, did you hear my opening statement?

That's it.

My God.

You just said it.

You just crossed it off your own questions right now on your, on your cross examination.

I don't have any questions.

Don't he ask that?

Don't he ask that?

Yeah.

Um, yeah.

She also asked him if he remembered talking to the social worker two months before.

And he said he didn't remember talking to a social worker at all.

So, yeah, so that was the first one I was like, oh my God, this is incredible.

And, um, so I got up and, oh, he also, I mean, to be fair, he, so he stuck by, he stuck

by, um, that my client had on one occasion only masturbated him in the stairwell.

So he didn't say nothing, right?

Okay.

Uh, he had, like, he told the police that it was three times that my client had masturbated

him before.

So he did say that.

It's not like a totally new, it's just, you know, yeah.

A different amount of times.

A different amount of times.

And, uh.

He didn't say, ooh, that's gay?

He said that, well, she, she actually elicited that at the DH.

She said, do you remember meeting with me in June?

Do you remember when I asked you about, you know, the, the licking or the, with the mouth?

And he said, yeah, and I told you it didn't happen.

And she's like, do you remember saying, it was gross, that's gay?

And he's like, yeah.

I mean, it's kind of weird.

So blowjob's gay, handjob's not gay.

Got it.

No, he was very uncomfortable.

Like, he didn't want to talk about it, to be fair.

Like, and, and the jurors, um, I think, I mean, he, he, he seemed to get a little bit

more, um, as a stronger, stronger, like he was very nervous at the beginning and he didn't

want to talk about anything.

And when she would bring it up, he would not, he'd say, I don't want to talk about

that.

I don't want to talk about that.

And I think that maybe she argued at least that that made him more credible that something

really had happened that he was, he just didn't want to talk about it.

And, but he did change the details.

He says all these, he said new things that, you know, someone walked down the stairs while

my client was masturbating him on the stairwell.

And then my client covered it up with a sweater, which I thought that was a brand new one.

Um, he said that they watched hentai porn.

Um, my client showed him hentai porn on his phone.

Sort of anime?

Yeah, anime.

And the dude's like, was that a second time?

He's like, no.

One time.

And so it was unclear.

Like, it was very messy.

What was your cross like?

My cross basically, um, so I wanted to be able to set up my impeachment.

So I, you know, asked, I said, you know, I asked about the, the things that he said to

the social worker and, um, and I said, uh, and I asked him about telling the police the

truth and that he didn't tell the police the truth.

And he actually gave that to me.

I said, I couldn't believe it.

I said, uh, this morning you told us that when, you know, the DA was asking you questions,

you said there only one thing happened one time, right?

Yes, that's correct.

So, um, if you told the police that it happened more than one time, that would be not true.

Right?

Yeah.

So is it fair to say you didn't tell the truth to the police about everything?

Yeah, that's true.

And so he gave me that, that he didn't tell the police the truth.

Um, and I also asked about, uh, his knowledge of CPS.

I said, you, you know, I, you know about social workers, you know, about CPS, you know, that

if you tell somebody that your mom hits you, you could go to foster care, right?

Or your mom hits her, any of her kids, you'd go to foster care.

Yes.

And you know, um, that, you know, so basically I listed in all this stuff that he knew about

CPS and how it operates.

Um, and what else did I do?

I think those were the main things.

Yeah.

Listening that he lied to the police, listening that he was terrified that he's going to lose

his mom that night.

And, uh, and, and, oh, I said, and is that why you told the police what you told them?

That you were afraid to go to foster care?

Yes.

That's why I told them that.

And I actually introduced the body-worn camera through him.

Wait.

I wanted the jurors to cue the body-worn camera of the quote-unquote spontaneous statement.

Wait, you just, you kind of went over, you glossed over that pretty quickly.

You asked the kid, you made all of these statements to the police that night because you were afraid

your mom would get in trouble and you'd go to foster care.

And he said yes?

Yeah.

Well, I asked it in pieces.

I said, so you told her, you said that you were afraid of losing your mom, correct?

Yes.

And so, uh, you thought you'd go to foster care, correct?

Yes.

And is that why you told the police those things that night?

Yes.

Wow.

I mean, he just basically admitted he made it up to keep her without you directly asking,

did you lie to keep her there?

He basically, that's what he said.

Yeah.

Yeah.

He basically said that.

Um, awesome.

Yeah.

So the, so the DA got up on redirect and said what?

He said, uh, did you, did you lie?

Oh my God.

It was actually, it was actually, she almost, she made it worse for herself.

She said all those things that you told the police that happened when you talked to them

that night in June of 2021, did all those things really happen?

And he said, I don't know.

I don't really remember.

Yeah.

I like that.

I put that, I put that up on my PowerPoint.

That's beyond a reasonable doubt.

This is their first witness.

Yeah.

That's the first witness.

This is the first, first witness.

All right.

I'm almost feeling bad for the DA.

Like that's just trying to put on a case like this right out the gate of just fuck.

Yeah.

I know.

But I like the DA because the DA is like, the evidence is the evidence, you know?

And so let's just put it up there and see what's what, you know?

I don't, I appreciate that.

I do too.

And I will give her that till kingdom come is that she's not dirty.

She put it, she put her case in clean and chips fall where they may.

Yeah.

Yeah.

So that's great.

All right.

Cool.

So what's, what happened next in the people's case?

Next was the 14, now 17 year old.

Okay.

Okay.

And he was very teenager-ish.

So he was very like too cool for school.

He, he didn't call his private parts his private parts of penis.

He said, my dick, he touched my dick.

And, uh, he changed every, he got so much wrong and changed so much.

Like literally within four questions would reverse himself and contradict himself.

It was kind of incredible.

On the stand, he was changing his story.

You don't mean from when he told it before, but literally live in front of the jury, his

story was changing.

Yes, uh, exactly.

And more on cross than on direct, but, uh, also somewhat on direct.

He said, uh, he was asked how many times this had happened.

Uh, he said, oh yeah, he touched my dick.

Did that, how many times that happened?

Um, one time.

Was it one time or was it more than one?

Oh, uh, two, I think it was more than one.

Okay.

Do you remember telling the police that it was too many times to count?

Um, yeah.

And you told them, you, did you tell them that you estimated 15?

Um, yeah.

Was it 15?

Yeah.

Okay.

Um, cool.

So she's asking, asking leading questions.

All right.

She impeached her own witnesses.

She basically spent the entire second half of the trial.

We haven't gotten there yet, but after calling those kids, she spent the rest of the

trial impeaching them.

Not ever a good look for the DA.

Don't believe the witnesses.

Believe the reports that were generated with improper techniques about what the witnesses

said.

That's the more credible piece of evidence.

What these untrained officers elicited at the scene.

Improperly asking suggestible, suggestive questions and statements given, not under oath.

Those are the ones that you want to pay attention to.

Exactly.

And we have this, and we have this expert that's going to tell you why.

Um, so then, so that that's the second witness.

Did you cross that all?

Oh, I did.

I crossed the line.

I'm sorry.

Sorry.

Go ahead.

Okay.

Okay.

Well, before we move on to your cross, was there anything else about the direct you wanted

to share?

Yes.

I think there's another thing that's important, which is that, um, the other thing that's

important that I haven't talked about yet is the, what I would call the worst piece of

evidence in the case was, um, there was some text messages that in between my client and

his, and the now 17, previously 14 year old half brother, which were definitely weird.

There's some weird things in there.

Um, it's some, obviously the, so the, the person who actually took the screenshots, there's 11

of them, 11 screenshots of texts was the half sister, the 15 year old half sister.

She took screenshots from the brother's phone and sent them to the sergeant.

And, um, they are weird.

They're totally weird.

There's one that he says, uh, Hey bro, why don't you like me to kiss you on the cheek?

Is it because I'm gay?

And his brother says, no, I just don't like it.

It feels weird.

That's the only time there's a response by the brother.

Every other one is just my client's texts.

And, um, uh, there's some, my client ended up testifying.

We'll talk about this later, but there's, they're through Google translate and they are

hinky and weird.

At one point he says, if I kiss you, it is not for something sexual or something bad,

but because for me, the kiss is the maximum way to show a person affect, like you love them

basically.

So, um, he does say that and, but he also says some weird things like,

like hurts feeling weird things.

Like he calls, he says, fuck you at one point.

And I'm, I don't care what you want.

And I'm going to treat you the same no matter what.

And there's some weird ones in there.

And so she puts the text messages and through this half brother said, are these that texted

from your phone?

Yeah.

Are these all the texts during the entire time that the defendant lived with you?

Yes.

And, and I'm sitting there looking at the jurors like, yeah, right.

It's 11 pages.

These are a 18 year old and a 14 year old.

And there's only, um, 11 pages of texts come on.

This kid's texts constantly the whole time.

Everybody knows that about teenagers.

Um, and they're just, and they're just weird and they don't make sense.

So, um, she got those in through him.

That was the only other part.

And so I, I, uh, that's the only other part of direct I want to talk about.

Did, um, does she elicit more testimony from the witness about the kiss on the cheek?

And is that weird or not?

Did she ask him what he meant or what, what was that about?

Yes.

She said, asked him about that.

And he said, um, that my client, the first, when I find client first arrives, that things

are cool, but then he starts being like, always trying to kiss him is basically what he

says.

He's always trying to kiss him.

He's always trying to hug him.

And, and things like that.

And he didn't like that.

He sees what his testimony was.

Um, all right.

So let's talk about your cross then.

How'd that go?

So my cross was, uh, I, I tried to elicit.

The only time I really saw his demeanor change, this 17 year old boy was when I asked about

their dad.

He, his demeanor visibly changed.

He was just like, what?

Like his face kind of dropped.

Like he was shocked and he hadn't, he didn't want to talk about that or he didn't want to

think about it.

But I asked him about knowing about his dad getting deported and arrested and why that happened.

And then I asked if he, uh, the fact that he thought his sister had lied and he kept saying,

I don't know.

And they said, but you thought she lied back then.

Right.

I don't know.

I don't remember.

And I tried to refresh his recollection with CPS reports.

It didn't really go well.

I had to call those witnesses, which was fine, but, um, and impeach him properly.

Uh, the other thing was I asked him, I asked him, I was like, well, this morning you, you

told the DA when she's asking you that first you said it was one time.

Then you said two, and then you said it was 15.

Like, so do you not remember how many times this happened to you?

And the kid, my jaw dropped.

He said, well, I really only have one very vague memory.

And I was like, oh, okay.

So, so you have one vague memory of this happening to you one time.

That's what you remember?

Yes.

And do you remember when that happens?

No.

Do you remember where that happens?

No.

Do you remember what you were wearing when it happened?

No.

That's not just vague.

That's a non-existent memory.

Yeah.

Yeah.

Um, so that was, that was that cross.

And then, uh, was there anything else that I elicited from him?

I basically was like, uh, I elicited, I, all I said about the text was, are you sure that's

all the text?

I was like, can't you tell they're even, they're cut off.

They're not even the text.

And, oh, you didn't send these to the cops, did you?

That was somebody else?

Yeah.

Um, and, and I asked him questions I knew he'd get wrong.

Like, how long did my client live there?

He said two years.

It was six months.

So he got a lot of, oh, and then he, he was asked about, um, why the police showed up

that night.

He got that story wrong.

Everybody else got the story, right?

He said, oh, my mom called the police because my brother punched her and they were arguing

and he gets up off the bunk bed and he punches her and it's like, oh, okay, sure.

Wow.

So that was, oh my gosh.

Wow.

So was the DA able to rehabilitate on redirect?

She, not really.

No, she couldn't really get much out of him after that.

I mean, he was all over the place.

Oh, oh, actually she did try to redirect.

Actually, I'm sorry.

This was the best part.

I also asked him about whether he told the truth to the police that night and he said he

didn't remember if he told them the truth or not, which I thought was, there's really

only one right answer to that question.

It doesn't matter whether you remember what you say.

Right.

The answer is I told them the truth.

Yeah.

And the DA said, so she said, so did you tell them the truth when you told them that night?

You told them the truth?

Did you tell them the truth?

Yes.

And so I got up and I was like, and then I just picked things out.

I was like, so, oh, I forgot.

I knew from my client telling me this, that both boys were gone the entire month of December.

They weren't even there in the apartment.

They were at an aunt's house because it was remote school.

So they were in the East Bay.

They were not even home.

So I was like, so, and I had already elicited that on my cross.

Like, oh, so you weren't there in December, right?

You were gone the whole month.

Do you remember that?

Yes.

And so, and then I was like, oh, you just said you told the truth to the police.

So if you told the police that this happened in December, started happening to you in December,

that wouldn't be true, right?

Because you weren't even there.

I don't know.

And then you said that you didn't know whether this.

He sounds like a 17 year old.

I don't know.

That's what sounds like my nephew.

I don't know.

I pulled out all the lies.

I was like, you said you didn't know anything about this happening to your brother, right?

Yeah, that's right.

So if you had told the police that it started to happen to your brother in March after he

stopped doing it to you, that would be a lie too, right?

I don't know.

I guess.

Like, I guess just, yeah, I love that.

You decided to stop treading lightly with this one.

With the guy who got up and was like, I touched my dick.

You were like, all right, door open.

Let's go.

I was really nice to both of them.

I was really gentle because I was so afraid of looking like I was being mean.

I was like asking them questions about school and sports and what kind of music they liked

when I got up there first, try to really be nice.

I introduced myself.

I said what my name was.

Oh, and also, neither one of them could ID my client in the courtroom.

Do you see him in here?

Nope.

What?

Okay.

It's very weird.

All right.

Cool.

Well, I mean, it's very weird, but there's going to be an expert coming to explain this

all.

Can we make 1118?

He couldn't identify my client, your honor.

We don't have.

Yeah.

Yeah.

The cops didn't offend my client, though.

Sorry.

Damn it.

All right.

So who, so what was the next pertinent witness for the people?

The mother was the last pertinent witness.

Then it was all cops and nurses and stuff.

Okay.

And the mom, she came off exactly as I wanted her to, which was awful.

They hate, I could tell the jury hated her as much as I did because I was trying really

hard in opening that to be like, this is a bad mom.

She's horrible.

And you should hate her.

I was like, let me just paint the picture.

I'm not going to tell you that.

And then she gets up and she's just, she just is hateful and awful.

And she wouldn't even look at my client.

She said, I know he's in here, but I'm not going to IDM.

And the DA is like, why not?

And she's like, I don't know.

And she wouldn't even look at the side of the courtroom where we were sitting.

She also, what did she say?

She said that neither boy had told her anything about either, about any of this.

Which she didn't know anything.

Her earlier statements.

Exactly.

So she contradicted herself.

My cross focused on, I really wanted to open the door to the DV restraining order and the

CPS stuff about the older sister.

So I asked her about, I said, I asked her about in 2012 that she did report what had

happened to her daughter when her husband had touched her daughter.

I said, you did the right thing, right?

You reported it, right?

Yes, I reported it.

Because that was the right thing to do, right?

Because what was happening was wrong.

Yes, yes.

And if you had knew anything about this, you would have, of course, reported it, wouldn't

you?

If you, if either of these children had told you this, you would have reported it?

Yes.

Because you know that failure to report is a really big deal for CPS, right?

And I was wanting her to say no to that because then I could have gotten it in, but it didn't.

So this is the stuff that Judge had ruled in your 402s you couldn't talk about.

That she didn't report what happened to your client's older sister.

And you were trying to set it up so that you could, you could get it in because she would

be the one to open the door.

That's what I wanted.

I wanted to impeach her, but unfortunately she didn't give it to me.

She, she said the right answer.

She said, yes, I know that that's a serious thing.

Which fine.

Okay, cool.

So, so if you had known you would have reported it, yes.

And then at the end they got to, and the DA had already kind of said like, did you tell

the police that the 14 year old had told you?

And she's like, I don't remember.

She also claimed that one of the cops that was Spanish speaking didn't really speak good

Spanish, that he spoke bad Spanish.

And she was just not very credible.

That's a, the people's cases, I mean, how are you feeling in this moment?

I feel like the case is going great for you, right?

I mean, everything that you want to happen is happening.

And even more, it seems like there's nothing credible about any of these witnesses.

Is that I think a jerk can feel confident about convicting at this point, at this point,

you know, like.

But with those charges, you had to still be nervous.

Jurors hate, like they hear that and you do your best doing jury selection, but you've

got to still be nervous that they're hearing these charges.

I was still nervous.

I knew that there were two jurors that I knew were with me kind of from the beginning.

I kind of just looked at them and I could, I could tell by the looks on their faces, they

were pretty much with me, but the rest of them, I was kind of nervous still.

But yes, do I think it's going great?

Yes, I categorically thought it was great.

And I really thought I was going to win that 11-18 motion, but I didn't.

After the mom, did the DA's expert testify?

Oh, sure.

She puts up all the, she does the cops to talk about the prior inconsistent statements and

then the nurses.

Yeah.

And then eventually the expert.

And then did you, can you want to tell us about the, the, the cops and how the, your

cross-examination on their lack of expertise, um, went or is there anything about their

testimony you want to share?

Um, the main thing that I got out of them was something that I had already got out of

them at prelim, which was that the only time that the kids got emotional at all during

any of these questions was when their mom came over and gave them a hug and they, they

expressed the fear of losing their mother.

That's what I elicited.

That was the big part.

I also elicited stuff about the cameras that they knew that there were surveillance cameras

everywhere that, um, that, uh, I, I listened to stuff about SVU and what the protocol was

and that why it was the way it was.

And then, um, and then all the things that they didn't ask and all the lack of training.

And that was basically it and what they didn't do.

So, and the DA spent her time with the officers impeaching her witnesses.

She'd already called.

Exactly.

She spent the whole rest of the case impeaching her witnesses.

Nice.

And then came her expert.

And then came her expert, uh, to say, oh, well, there's these things.

There's accommodation.

They accommodate abuse.

Kids accommodate abuse.

There's delayed reporting.

There's, you know, all this stuff they say.

So.

And then how'd you cross go?

Oh, so my, my colleague, Rico, shout out to Rico.

Oh.

He did that cross.

He did a great job.

My second chair.

All right, Rico.

He also, uh, crossed one of the cops and did a great job with one of the, I did one cop.

He did the other cop.

Okay.

And then how did Rico's cross go?

What was he, what was he arguing through his cross with this, with the, with the expert?

He was arguing that CSAS is not scientifically validated and there's no, it's not an APA.

Like the American psychiatric and psychological associations don't recognize it.

He talked about a lot of the critiques of it and crossed on all that.

He crossed on, um, he, he, he, he didn't do too much cross on the, on any of the specifics

of the testimony because it was so all over the place that it really didn't necessarily

apply.

Like things like the kid.

He said, well, this accommodation thing that usually, uh, or not reporting that usually

happens because the person is a figure of authority, right?

Like a father or a coach or an uncle, like an older person, older adult with that kind

of relationship.

Cause since my client's like a half brother and a stranger, it didn't apply.

So he didn't have to do, he was just trying to, he picked out some of the things that really

didn't apply.

Great.

Is that, is that it for the people's case?

Yeah.

Any, anything interesting happen that you, that, that you want to share that we just didn't

ask the right question or you may have forgot to share or anything, any interesting

sidebars or anything like that?

Probably the most interesting thing is when they called the, the woman who does run case

arc to explain why she didn't think that they should do one of these special interviews in

the room and how she, you know, that she, she thought it would, could be traumatized the

kids.

And I basically used her as my own expert.

And instead of, you know, being hostile or adverse to her, I was like, oh, you have so

much training and you are really good at what you do.

I've actually seen your videos.

I've seen videos of your interviews.

You're really good at it.

And I talked about all this stuff that she does, all these, all the questions and how

she says, oh, I want you to correct me if I'm wrong.

And I even used her own words from other interviews that I've seen her do.

And I was like, what you do is really fucking hard.

Like you have a lot of training and it's good and you're good at your job and not anybody

can do what you do.

Right.

It's not just that easy that anyone could just, you know, any Joe Schmo knows how to question

a child properly.

So that was probably the most.

Yeah.

Yeah.

Joe cop.

There you go.

Yeah.

So that was about it.

That's probably the only other interesting thing.

Yeah.

So you used to use her to contrast what the police, the police did.

Okay.

That's great.

Yeah.

All right.

Cool.

All right.

So then your people arrest.

People arrest.

Your 1118 motion.

Motion to dismiss all charges because the people, because no credible, no jury could find,

no credible jury can return a verdict of guilt.

Was your argument based off the evidence, judge said, go pound sand.

Actually, I found it written 1118, which I've only done one other time in another serious

case.

I found an actual written one and I went through all of the reasons why there's no reasonable

jury can convict.

And the only thing I said, I was trying to be reasonable.

So I was like, I left in one non-forceable lewd and lascivious for each child to be like,

okay, maybe if they believe what they said on the stand, there's one, but you know, whatever.

And the judge didn't, initially, he didn't rule on it right away.

He basically waited to rule on it for days on end.

And we were, we started going through jury instructions and the first time I went through

them, he said something like, well, if it survives 1118.

And so I was like, oh, we're going somewhere.

And then we spent so long going through instructions.

It was psych.

Yeah.

I was like, okay, I guess that's not happening.

Did you, did you put on a defense case at all?

I did.

I put on a big defense case actually.

Okay.

So, so before we even talk about the judge and jury and jury instructions, let's talk

about the defense case.

Okay.

But you made your 1118 after the prosecutor arrested.

Yes.

Yeah.

And then the judge took it under submission.

So you had to keep going with your case.

Exactly.

Exactly.

You got it.

So I called, I called social workers.

I called three different or four different social workers from CPS.

I think I called the ones from back in 2012 to talk about the kids being sexualized and

kissing on the lips and all that.

I called and impeached the mom and the, and the siblings.

I called the social worker from the April incident to talk about investigating the physical

abuse allegation.

That, that is actually probably the most notable moment.

One of the most notable moments of the trial.

The DA asks him whether it seemed like the boys were trying to protect their mom and the social

worker drops a bomb.

He goes, Oh, well, all kids try to, yes.

Kids try to protect their mom.

All kids do that.

And I was like, Oh really?

Tell me more about that.

So he's like, Oh yeah.

And he's like, well, kids, he said, he said it this way.

This is what he said.

He said, children know the consequences of their words.

And I was like, Holy shit.

Thank you.

I love you so much right now.

Children know the consequences of their words.

And I was like, well, so you have 11 years experience.

Um, have you had a lot of experience interviewing kids with prior CPS experience, exposure to

CPS?

Yes.

Do you find that this is especially true with kids who have prior experience with CPS?

Oh yeah.

They know exactly what's going to happen.

And so they know that if they say one thing, they could go to foster care.

And so they know that was, that was really big.

And I did put my client up was the other big one.

And of course my expert were the other biggest parts of the defense case.

Um, yeah.

How'd your client?

So let's talk about your, your client testify next.

Or was it the expert?

I put my client on, uh, I kind of put him on in the middle.

I put him on, I think I put him on before the expert.

So how'd your client testify?

How'd that go?

Uh, he did amazing.

Do you want to talk about the decision?

Do you want to talk about how the discussion that led to him testifying?

Do you guys talk about, was it, was he always going to testify or was it something

you guys went back and forth and see how the trial went or what?

How'd that happen?

He always wanted to testify.

And, uh, and I was unsure.

Um, I, uh, I was unsure whether or not he needed to, let's put it that way.

And I went back and forth.

I was like, the case is going so well.

I don't know if he needs to, but there's because of the kind of case it is because the burden

of proof isn't always as respected in this kind of a case.

And he wanted to, and I thought he would do great.

I ended up putting him up.

Um, okay.

Especially because of the big bombshell that,

that ends up being the key to the whole case that I haven't told you about yet.

Um, so when I, I, I did this earlier, which was that, um, remember I told you a, so a CPS

social worker was assigned to investigate this sexual assault at night.

Oh, she visits him in the jail.

So in every case where there's something like this happened, there's a co-occurring investigations,

right?

There are parallel.

The cops investigate a sexual assault, child sexual abuse, and CPS is also called because

cops are mandated reporters.

Yes.

The CPS social worker is called by the DA.

And in her report, she says she goes to the jail to interview my client and that my client

told her that, uh, his younger sibling has threatened to make these false allegations against him.

Basically is what it says in there.

The sister.

Yes.

He doesn't, it doesn't actually say sister, but it's his younger sibling.

It's, it's corroborating his, what he's going to testify to.

Um, I also, and she also interviewed the sister didn't testify by the way.

The sister moved to Mexico, uh, before this trial and she couldn't come back because of immigration

status.

She left her mom.

Basically she and her mother had a falling out and she moved away finally.

Um, so she didn't testify, but I got out of the social worker that she interviewed, not

just my client, but all three kids and the mom as part of her investigation.

And, um, in the interview, I said, so you interviewed the sister and without telling us anything she

said, is it fair to say she didn't know anything about any of this before the police came?

Correct.

That's correct.

And so I put my client on because I wanted to put in the 911 calls because the sister

call in her 911 call, uh, saying my brother kicked my mother at the very end of the call,

almost like an afterthought.

She says, oh, and he's been touching my brother and we have proof.

And the 911 operator either doesn't hear it or ignores it or something.

It's kind of weird.

It's like, there's this de minimis physical contact.

Oh, and by the way, he's also molesting my brother.

We're touching my brother.

He's been touching my brother.

That's an important.

It's the bombshell of the case.

So I put my client on to, to, to be able to authenticate both 911 calls and get that

in.

And he testified that before when he said to his mom, if you, if you hit me, I'm going

to call the police on you.

His sister said, if you, if you do anything to hurt my mom, I'm going to tell them you've

been touching my brother.

And so he said that he testified to that.

And then it's corroborated by the 911 call.

And the fact that she told the CPS worker, she didn't know anything about this before the

police came.

She's so sad for your client.

I just feel so bad for him.

Yeah.

He got set up by his, I don't know.

And there was a lot of stuff that came out about how the sister was so messed up after

the, her father's was deported and this whole thing that she was so traumatized that she

became kind of a compulsive liar.

She had, was acting out in school.

Like all that got elicited too.

Oh boy.

Yeah.

Is, do we know the, can we get into the story of your client?

I mean, I guess we're almost done with the trial, but I just, I mean, he goes to live

with his mom when he turns 18, but he spent the first 18 years in Guatemala.

He was separated from, he was separated from his mother at some point with several years

without her.

Yeah.

She abandoned him at the age of two to move to the United States.

And then in Mexico, she'd be his loving caregiver when he showed up almost two decades later.

Yeah.

Bless him.

He's yes.

How did the DA cross your client?

So the, the main thing that she really focused on, I knew she would, was the text.

So we went through each text.

Actually, my second chair, Rico, did the direct with my client, which I thought was a really

great, he did such a beautiful job.

He was incredible.

He went through each text and asked what was going on.

And my client was like, there was literally thousands of text messages and between us.

And he explained all that.

And he went through, we had proof that they were Google translate.

I don't know if you know this, but if you misspell the word in the original language in Spanish,

then it just won't translate it.

It'll just copy it over.

And he wrote, um, instead of hermano, which means brother, he wrote, uh, head mano.

He misspelled the R to a D.

So it just copies over the D and he's, and he's, so it didn't translate.

So that was, and there's another one of those couple other ones.

So he talked about using Google translate and that he didn't really speak great English.

And he, he talked about being, um, kind of, uh, immature and that that was like, he would,

but he wasn't very mature, mature and he didn't really know how to talk about his feelings.

That was, okay.

So he's vulnerable in front of the jurors.

That's nice.

Yeah.

I think they really loved him as much as I do.

So.

Yeah.

Yeah.

Yeah.

And then the, then the cross, how the cross, how, what was the cross like?

Was there anything you remember or you want to talk about or just move on?

Um, yeah, just briefly.

Um, I think that the, the DA really went hard about the text messages and she, and I don't

think that she got any, she, he was so respectful to her.

He'd like, he responded with her name on a few occasions.

Yes.

Miss blah, blah, blah.

Um, which he just, he came off as very respectful and she came off a little bullying at times,

but, um.

He, he handled all of her questions.

He had responses to everything.

He didn't get, he didn't get crossed up.

Let's put it that way.

There was nothing that she got off of him.

And did you guys, did you guys work on his testimony at all?

Yeah.

Um, do practice cross examinations and stuff like that.

So.

We did.

Good.

Okay.

Um, all right.

Let's, let's, now it's time for your expert to testify.

Yeah.

My expert testifies.

She was phenomenal.

I thought she did a great job.

Um, she just talked about, she talked about how the important, why it's so important to record

these interviews.

Um, and she said the studies show that people don't remember, um, a huge amount of what happened

if they just write notes.

They don't remember the questions or the answers to a lot of things.

Um, she, and she just did a great job.

She talked about suggestibility and how, uh, kids are suggestible.

And, um, so yeah.

And she also talked about, uh, source monitoring error, which I wish, you know, when, where's

the source of the memory?

So when the kid talked about the hentai porn thing, um, you know, maybe he had seen hentai

porn on some other occasion and, and that's why he, you know, maybe who knows where he got

that from?

Like that was the idea that maybe people could misremember where they saw something or where

they got something from.

Hey, he's, he's 10 years, at the time he was 10 years old, they all have access to the

internet.

You know, they all have friends that do things and who knows, right?

Someone has an older brother.

Um, did you, when you were questioning your expert, did you have her go over specific hypotheticals

of things the officers had testified to in court?

So for example, to be like the officers, what would you say if a, if a alleged victim was

questioned in this way?

Um, I, I, well, she actually reviewed the discovery on like the DA's experts.

So I said, what, did you note anything of concern about the location of the interview?

Did you note anything concerned about the law officer's lack of experience?

Did you notice anything of concern about the fact that the mother was present?

And so I gave, yes, I gave her those questions.

So you were able to go into specifics about your case in a way that the DA's expert couldn't

do.

Correct.

So then, uh, time for closing arguments then, right?

Closing arguments during instructions.

Yep.

Um, nothing very significant happened with instructions.

Um, so closing arguments.

I, one of the things I love most about long trials is when you can get the transcripts

because I've been, I screenshot the parts that I like, and then I put those in the PowerPoints.

So the jury knows that I am not misquoting witnesses.

I have proof of what they said.

And I, I love doing that when I can.

Um, so, but I should, you want me to start with the DA's closing?

No, I mean, we just, I mean, we don't need to rehash it.

Everybody knows what the arguments are.

So there's parts that you want to talk about or, yeah, I mean, yes, let's, excuse me.

Yes.

Tell us about the DA's closing argument.

I mean, she basically went through the statements of the kids and she argued they should believe

what they said to the cops, basically.

And, uh, I mean, she did as well as she could.

It was like 20 minutes, like 20 minutes or something.

I feel like their closing argument would have been 20 minutes, 25, walked away with your

tail in between your legs.

I guess my question about the DA's closing is, did she address in her closing how much

she had to impeach her own witnesses?

No, she didn't.

That's the crazy part.

She went through their statements, but she didn't address that at all.

She just said, she essentially said, well, they, you know, they, um, she talked about the

CSAS expert as an explanation for why they added consistent statements.

That was basically it.

But she, it was a long closing.

You're right.

I would have thought 20 minutes, but it was really like, she went, she, she went until like

2 PM or something like that.

I mean, it was most of the day, so it was, it was pretty wild.

Uh, all right.

So tell us about your closing argument then.

How'd that go?

And to be honest, I, I really want to, I want to hear what you want to share about it.

I really do.

Um, well, I stuck to my themes.

I talked about, um, you know, kids protecting their moms and I tried really hard not to attack

them because as both of you pointed out, that's a bad look.

Don't, don't be mean to children.

Um, I, I even made some, I sort of, I was almost apologetic at times.

Like I've never, I've only done this a handful of times, but I said, you know, if you thought

that I was mean to them or I mistreated them, or you didn't like the way I questioned them,

take it out on me.

Don't take it out on Andy.

Like, that's not fair.

And, um, so, uh, I, I, you know, tell me later, basically, like if, if you don't like

it, um, I, but I basically put, put up, I went through each of the factors from the jury

instruction on witness credibility and I showed pieces of transcript to show how they were

not credible, um, bit by bit and, you know, piece by piece, like, Oh, okay.

Like how well was the witness able to remember and describe what happened?

Here's a piece of transcript.

Here's all these inconsistent statements.

Here's this, you know, does the, and I was like, how is this proof beyond a reasonable doubt?

How?

Cause there's, there is a, there is a jury instruction that the jurors get that says you,

you are the, in charge of, of assessing the credibility of witnesses.

Here's some factors that you can use.

You don't have to, but you can to assess whether or not their testimony was credibility.

It was ability to receive, ability to remember any prior inconsistent statements, uh, a motive,

a reason to lie, motive or bias, you know, like all these things that you can, I mean,

there's probably like six or seven of those factors that you could use in your closing argument.

Exactly.

So, and I said, and I did say one thing I said, um, you might wonder why if they made all this

stuff to get rid of my client, why did they come in here and maintain that something happens?

Like both of these boys, they didn't come in here and say, we made the whole thing up.

They said, okay, well, all that stuff we said before didn't really happen, but this happened

one time, one thing.

And I said, why would they do that?

And I said, we all, because kids can't, they can't admit they just made it all up.

It's like, it's like you.

And I gave an example of like, you ask a kid, you know, did you do your homework?

And like, yep, yep.

Done my homework.

Can I watch TV now?

You're like, but I, I went through your backpack and I don't think you did it.

Oh, but I did my math.

No, that was yesterday's math homework.

You didn't do your math, but like kids will continually push back until you catch them

in the lie over and over and over again.

They, they can't just admit they made it up because otherwise, what are we all doing here?

Why did everyone have to go through all of this if they just made it all up?

And I talked about not burden shifting.

I talked about my client's testimony.

I acknowledged that the texts were weird and I talked about immaturity.

That was the one thing the DA said I was shocked by.

I said, she said at one point that the text made my client look manipulative.

I was like, no, they don't.

They do not make him look manipulative.

They make him look juvenile.

They make him look like an immature 18 year old who really has the maturity level of a

12 year old because he's stunted adolescence because of everything he's been through.

You know, because of the bullying and the homophobia and all of the pain and suffering that he's

been through to get here to this day.

Trauma.

Trauma.

Yes.

Trauma.

I really like that you went you gave the jury something to say that why they didn't just

recant the whole thing, why they still said something happened.

Yeah.

You already went through why they're not credible, but you also you took away the DA's power to

argue that the details might have been washed out here, but they were consistent about the

fact that he did molest them.

Yeah.

Yeah.

I felt like I had to adjust that because I thought it was important.

If they're admitting they didn't tell the truth to the cops, then why?

Why?

You know, why should you believe them that something happened at all?

Oh, but they did say something happened.

They admitted they weren't entirely truthful.

But oh, hey, something happened.

Because that's totally what they would do in their B argument is get up and say, you know,

defense counsel's right.

Their story changed a little bit, but they've never changed their story about the fact that

he did touch them.

Yeah.

Yeah.

Also, the other part that I think is, I just want to mention, if anyone ever deals with these

bullshit experts, the DV experts and the CSAS experts, I like to compare it to astrology.

Like, yeah, what are those called?

Horoscopes?

Like, they're just big enough.

Oh, I like it.

Yeah.

It's actually a really, I feel like it works.

It's just big enough that you can kind of make it fit where if you want it to.

It's called confirmation bias, right?

Like, oh, I'm a Sagittarius.

I love to travel.

And oh, I'm definitely passionate.

And but they also, Sagittarius is, they don't like rigid schedules.

I really like my routines.

I have, I'm a big routine person.

So that doesn't really apply to me.

But everything else does.

So clearly, horoscopes must be true.

Like, you just make it fit where you want.

It's like, that's, and that's what I said about the DA's experts.

I'm so feeling that.

The next time we see one of these DV experts come in, be like, oh, do you, do you also check

your daily horoscope in the paper?

Yeah.

Yeah.

I mean, it does work that way.

You can kind of pull out of it whatever you want to make it look like it fits your situation,

your case.

That's cool.

That's great.

So then that's it for closing arguments.

Can you tell us, how has your client been throughout the trial anyways?

You know, this month long trial, he's been commuting from Gilroy, multiple hours in a

car, like, and like, how, how, how was he during the trial?

So, uh, he really became my child during the trial in so many different ways.

Um, I bought him clothes.

I went to Ross with, uh, my second chair and bought him a bunch of trial clothes cause we

didn't have any that fit him right.

And so every day he would, uh, he'd drive up in the middle of the night, arrive in San

Francisco around midnight and just sleep in the car.

And then at seven or eight in the morning, I'd let him into the building and, uh, he

would, I gave him a hairbrush and a change of clothes and put him in a room to get ready.

And, um, but he loves his video games.

And I spent half the trial taking away his cell phone and his, his video games from him.

I'd be like, no, I'm just playing with that.

And I was like, I feel like I'm your fucking mom or something.

Like I'm taking your phone away from you.

Um, but you know, he was, and he was definitely tired at times, but he always maintained his

positivity and his good spirits.

And he was just, he's a pleasure.

He's a lovely, a lovely young man.

Just sweet.

Very sweet.

All right.

Sweet.

Okay.

And, um, did we skip over?

So let's talk about the jury instructions in this case, right?

Which is something you probably did before the closing arguments, right?

So what was that like with the judge and the 1118 motion?

They said there was nothing interesting about that, right?

Oh, nothing?

Okay.

I don't think there were any big issues there.

Um, the only thing the DA did dismiss the 209, which is the aggravated kidnap, and instead

do the 207B, which is the one that you actually said, Lauren, the kidnap for child molest.

Um, and she went with that instead.

Still a life count.

Yeah.

Well, no, no, no.

207B is not a life count, but.

Kidnapping for the purpose of another crime?

209B is not 207B.

Uh, kidnapping for rape or sodomy is, but for some reason, kidnapping for lewd and lascivious

isn't.

I don't know why, but it isn't.

That is 207B.

I didn't know that either, by the way.

I've never seen that one.

I've never seen that charge before.

Lewd and lascivious is just a felony.

Is it just kidnapping for a misdemeanor isn't, but kidnapping for a felony is?

Life count, maybe?

Lewd and lascivious conduct's a felony.

It is a felony.

Is that a felony?

Mm-hmm.

Yeah.

I didn't realize that.

I thought all of the kidnap for the purpose of another crime was life.

Yeah, there's the, I thought that too.

Uh, the 209s are, 209A and B are.

I'm just, I'm just going to edit out the part I got wrong, guys, just so you know.

I'm going to edit it out.

You knocked out a life count before it got to the jury, so.

Yeah.

One of the life counts off the table.

That's a win to start with.

I'm trying to think if there's anything else in the jury instructions that we argued about,

but I don't think so.

They were pretty straightforward.

I think there were some things, yeah, there was nothing, nothing of interest.

Let's put it that way.

Only geeky things that are not interesting.

All right.

So then, um, so how long did the jurors deliberate for?

Um, they went out on a two, well, they started deliberating Wednesday morning and they came

back Friday afternoon.

So two and a half days.

Okay.

Two and a half days.

Okay.

Um, any, any juror questions in those moments?

Yeah, there was, uh, uh, they asked whether we could have presented the text messages from

my client's phone because one of the things that there's no context, there's only 11 messages

been my client said, you know, we, we texted back and forth and I asked the judge to read

back the testimony, the officer that they took my client's phone.

They seized it.

Uh, but he refused to do that and said, but I did ask him to at least give the, uh, neither

side is required to present all available evidence instruction.

So he referred them to that and, uh, and the burden of proof is on the people.

Yeah, exactly.

Um, so we did that and then was there another one?

Uh, I don't think so.

I think they asked for some read back.

They wanted read back.

Wow.

And, um, that's a pretty long time, two and a half days to kind of be quiet with just one

question.

It's like, what are the jurors doing back there?

Um, yeah, they wanted read back of the officer's testimony.

They wanted all the cross and they wanted all the cross, but not all the direct, which I

thought was kind of great.

That's never happened to me before.

Yeah.

Um, uh, that was good.

Tell us about the reading of the verdict and how that went down.

So I had told my client to stay.

So by the way, um, when they went out on Wednesday morning, by Wednesday afternoon, my client's

like, what's taking so long?

What's taking so long?

I was like, dude, I've had jurors delivered for three weeks before.

I was like, this is a long trial.

Like, I don't know.

Calm down.

It could be a while.

And then Friday I was like at lunchtime.

I was like, just stay close to my office because a lot of jurors come back on Friday

afternoons.

They don't want to come back next week.

And, you know, especially the holiday weekend, it was, um, the, the MLK weekend.

So, uh, so he sticks around and then we get the call and I, the clerk calls me up and

he's like, are you close by?

And that's when I knew it was a verdict.

And I was like, yep.

I'm in my office.

He's like, what about your client?

I was like, he's here with me and downstairs.

I'll get him.

And like, okay, well they have verdicts.

And I was like, okay, I'll be right there.

And my heart was pounding.

But, um, my very favorite juror went during my closing argument.

One juror, juror number 10, uh, this older white guy with a beard, the gray beard literally

spent the whole closing nodding along with me.

I was like, that dude is 100% like, this is bullshit.

This kid is innocent.

Like he's, he's with me.

And, um, when I found out he was the four person, I was like, oh, I feel so good right

now.

Um, and when I approached the, yeah, oh my God.

So we approached the courtroom, we're like running out the hallway and the jurors are actually

in the hallway, not in the jury deliberation room.

And he sees me and he nodded and smiled at me and all of my anxiety.

Like I was like, I'm still not relaxing, but like, cool.

This is, this is good.

I mean, that's pretty sweet.

Um, yeah, it was pretty great.

Um, and then, uh, they came out, they read and there were, because of all the lesser included

offensives, even though there were only seven crimes, I think there were 29 verdicts.

God, it must've taken like an hour to get through all those.

I've never heard so many not guilties in my entire life.

And actually the DA said the same thing, which is kind of funny.

She said that I was thinking it, but she said it.

I mean, I guess, I mean, of course you'd ever know if jurors and what they're going to do,

but was there like, once the first not guilty or two not guilties, could you know it was

going to be not guilties the rest of the way?

Or do you think maybe they may decide there could be, I think they could slip in a guilty

lesser included's coming.

So I didn't actually, just because I'm, I'm me and we, you know, we're all a little, we're

all like this.

I'm sure.

Uh, I didn't relax until, uh, the second, uh, uh, complaining witness that they were on

that one.

And they, we passed the, the Ludum lascivious without force.

Once we passed that, I was like, okay, we're good.

We're good.

And I was like, it's going to be a straight acquittal.

That's when I knew.

Great.

And my client little by little starts like hyperventilating.

He has asthma and his head falls into his hands and there's tears running down his face.

And he's like, he's hyperventilating and you can hear him having an asthma attack.

And he just, the amount of shock, it was crazy.

And I was trying not to cry.

And so was Rico, my second chair.

So it was very emotional.

Very emotional.

Nice.

I mean, I feel like I should clap.

That was, that was, uh, I mean, well done.

Oh, thank you.

That was kind of a, a beautiful trial right there.

It really was.

It's a great work.

It was.

Did you talk to the jurors afterwards?

Yeah.

All 12 of them stayed.

Um, they all asked how they got on the jury.

They were like, how did I get on this jury?

Um, and, um, they tried.

Why'd you pick me?

They must've been fans of you.

You picked me, Alona.

Why?

Well, the one lady was like, um, I'm a one, we had a lawyer on the jury and she's like,

I thought, you know, you guys didn't want lawyers ever.

Lawyers never make it on the juries.

And I was like, well, I don't, I think it depends on the case.

It depends what kind of case it is personally.

And the D and the D and I was like, I think she, the DA is the one who really didn't want lawyers.

Like she kicked the other lawyers off, but, um, but yeah.

And, uh, and then there was a teacher that I, uh, that, you know, I was like, I want, you

know, she's a mandated reporter.

So I thought that she'd understand.

And, um, the other thing I realized, and we didn't talk about this at the beginning,

but, uh, San Francisco has the smallest concentration of people with children or children in, of

any city in America.

I don't know if you knew that.

No.

And, uh, yeah, it's really kind of interesting.

And one of the things I found out in this course of this case is that people with children

know that children lie.

If you have kids, you know that kids are not, you know, only the truth of right.

Great historians.

Yes.

They are lying little terrorists.

That's what they are.

And so a big part of voir dire was getting people with kids to talk about that.

And, uh, so I really wanted people who had a lot of exposure to children and knew that

kids, you know, lie constantly to get what they want or to not get in trouble or whatever

it is.

And there was a lot of discussion of that during voir dire and that.

So that's why I picked some of them.

And I told them that when we were talking outside and my client, who was standing with

us, by the way, while we're talking to the jurors, he's like, he's so emotional.

And then he was exhausted.

And, um, my colleague volunteered to walk him back to my office and, uh, but he wanted to

say something to them.

So she kind of interrupts the DA and she's like, it's okay.

If, um, you know, Andy says something, by the way, that's a pseudonym, not really his

name.

Um, and, uh, she's like, oh yeah, sure.

And, and he said, uh, I just want to really thank you guys.

He's like, I didn't really think all this was going to happen.

Like, I didn't know I was scared and, and, and thank you so much.

And then he talked about what he had been through.

He's like, this trial has, um, this whole experience has taken so much for me.

He said, I lost my housing.

I lost my job.

And, you know, I kind of just want to leave California after this.

I don't know if I want to stay here anymore, but I'm just, thank you so much.

And, um, so it was really sweet.

And then he went back to my office and we talked a little bit longer.

Uh, the jurors wanted to know the consequences of the, what would happen.

The DA and I were standing there and we're like, yeah, you know, it was a life case.

And they were like, really?

Oh my God.

And, um, and so there was some discussion of that.

There was, they knew he was an immigrant.

So they wanted to know about that.

That was the other interesting part.

What happens now with his immigration status?

So I talked about that.

I was like the, actually the first person I texted with the not guilty verdicts was his

immigration lawyer.

Yeah.

And I was like, go get him a green card now.

I mean, those jurors and you saved his life in a couple of different ways.

Yeah.

Yeah.

They, they, they did.

And we did.

And it was, uh, it was really momentous and very, I mean, I was crying for days on end,

tears of relief and joy.

It was just really beautiful.

Well done.

Thank you.

Well done, Alana.

Thank you.

Thank you.

That was great.

And your voir dire, that was great too.

I feel like I really, I mean, the public defenders across the county proud.

Yeah.

Yeah.

Yeah.

I'm, I'm, I'm very proud.

So, okay.

So you've been on the podcast before, um, you know, usually we close it out with like,

you know, tell us why you became a public defender.

So, um, you've been, how long have you been a public defender for now?

Like how many years are we talking?

Um, 12 years.

12 years.

Tell us why you stay a public defender.

Yeah.

Lauren, Lauren, she's 12 years.

Do you know what that is?

Oh, that's your sweet spot.

David has a theory that there's a sweet spot in the office.

She's at the height of her game right now.

She is.

That's why.

It will soon be downhill.

The burnout is coming.

That's David's theory.

Which is funny because I don't subscribe to his theory just so you know, but he believes

there's a sweet spot where you have enough experience behind you, but you still have enough

energy.

Yeah.

Yeah.

I think he may be right about that.

So tell us.

I know you get, you need a little break now, but tell us, um, if you still enjoy being

a public defender and, um, you know, what it means to be.

Um, yeah, I love this job so much.

Uh, the, I will say the highs are so high.

Like the moments like this, this is actually so great about this podcast is you get to live

only the highest in this podcast because we all know what the lows are like.

We have, when the lows are low, when somebody goes down for something that you don't think

they should have, when you lose emotion and suppress or some, some injustice happens, it

can hurt. Um, and you know, this was my first life trial in a little over a year. The one

before that was a tremendous injustice that I will not get into on this podcast, but let's

just say, um, this is why we keep doing it. It's for the moments like this case that, you

know, um, I was able to successfully ignore the terrible things happening in our country

for what, like, uh, during that entire first week of that thing that will not be named because

I was still riding high and smiling every day while everybody else was like, oh my God.

What executive order is there today? And you were like, I don't know anything about executive

orders. My client's free.

Yeah. Yeah. I have faith in humanity. Yeah. Yeah. I love that. You're right though. The

highs in this job are, I try and tell people like, there's no high, like doing a trial like

this and then hearing all those not guilties. There's no, there's nothing like it.

There isn't. There really isn't. Yeah. Yeah. Well, thanks for coming on the podcast and

sharing your story. And Lauren, as always, great to have you there.

Always a pleasure, guys. Alona, it was amazing to hear this story.

Thank you so much. It was nice to meet you, Lauren. It's good to see you again.

You too.

Yes. Alona, until next time.

Until next time.

Bye, everybody.

Bye.

Thanks for tuning in to this week's episode of Another Not Guilty. Shout out to Daniel Mark,

original A&G theme music composer, and Mike Grimm for the remix. And guess what? We'll

be back in two weeks with Another Not Guilty, straight from the trenches.

Thanks for tuning in to this week's episode of Another Not Guilty. Shout out to Daniel Mark, original A&G theme music composer, and Mike Grimm for the remix. And guess what? We'll be back in two weeks with Another Not Guilty Straight from the Trenches.