Tattoo Turf War – When the Video Inked Not Guilty

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With that said, without further ado, here's this week's episode of Another Not Guilty.

I'm literally showing him clips. I'm like, these are the clips that you said were the ones in which you thought a sexual assault might have occurred, right?

And letting him, like, literally look at these clips. I'm like, these are the ones. And these are the only ones you found.

And showing them for the jury. And showing the jury that there was no sexual assault happening in those clips.

And I said, okay, officer, stop me when you see the sexual assault happening. I just played it in real time.

And he stopped me once and said, well, it could be happening anytime. We can't really see. I was like, no, no, no.

Tell me when you think it might be happening. Right now, it might be happening right now. Just tell me.

Kept playing. Played the entire video. He couldn't stop me again.

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.

All right, all right. Welcome to another episode of Another Not Guilty.

My name is Dallas Gutman, and I am a public defender in Cincinnati, Ohio.

My name is Rachel McKay. I'm here with Dallas once again, straight out of Cincinnati.

And we have a great guest today. Kristen, we're excited to talk to her out of Texas for Phenomenal Not Guilty coming up.

But I guess first, Dallas, how are you doing?

I'm good. I had a good day. A good day in court, a good week in court, and in life. How about you?

Same, same. Yeah, court lasted forever today. Yeah, we weren't the end of the doctor, but we were second last.

The last last was someone that the bailiff was being vindictive against and put them last.

Hmm. I hate when that happens.

Yeah, we all watched it happen. This thing would have taken two seconds.

And we were like, oh, that's savage. They're putting him back there.

No, but I'm good.

Yeah, excited to hear about a victory.

We have Kristen out of Texas. Kristen, do you want to introduce yourself?

Hello, I'm Kristen. I am a criminal defense attorney in Abilene, Texas, out in West Texas.

And I'm excited to be here.

All right, we're excited to have you.

All right, and Kristen's here to share with us a recent Not Guilty.

So let's get into it. What are the charges?

Well, originally, the charge was indecent assault.

And that changed into two sexual assault cases, an indecent assault, indecent exposure, furnishing alcohol to a minor.

And so it just kind of ballooned.

Whoa.

What wasn't your client charged with? Maybe that's quicker.

Tell us a little bit more about those charges.

So indecent assault is a touching of the private areas for the purpose of sexual gratification.

It doesn't have to be under the clothes.

It can be over the clothes.

And it's just a touching.

Sexual assault is penetration without consent.

And so it was originally just charged with the touching, and then they changed it to the penetration.

Did you try all of those?

And that's what we're going to talk about today, or did it end up being whittled down?

I actually just tried one of the sexual assault cases.

So it's a sexual assault charge.

What level charge is that?

It is a second-degree felony, which is a 2 to 10 years in prison case.

And actually, that's wrong.

It's 2 to 20 years in prison.

Your client's facing serious, serious jail time.

What did the state say your client did?

Well, the charge that we went to trial on, what they were saying is that he penetrated a woman with his fingers during a tattoo session.

Whoa.

So when you heard about that, those charges, what did you think?

It was really crazy to think that somebody would be able to do that and still be in business.

Okay, so you didn't believe it right away.

It wasn't that I didn't believe it.

It was that I needed to figure out exactly what was going on.

I felt like I didn't have enough information.

And originally, that's not what my client came in and told me was what he was charged with.

He just told me that he was called by the police because he was accused of touching a client inappropriately during a tattoo.

And so how did you know your client?

Originally, I was representing him on a child support case.

And so he called me up after that case was over and just said that the police had called him and wanted him to come in and he needed to talk to me.

And that, so you practice private defense, is that right?

Yes, I do.

Yeah, lucky for him, you do both.

Yeah, because that's like a key difference too between public defense and private is that we only show up once our clients have already been charged.

We never have that benefit of the window of when someone's about to get interviewed, maybe before they're charged or indicted to talk with the client and make sure that they know their rights and make sure they know not to talk and all that.

So your client knew to ask you what to do before he went and talked with police, hopefully.

Yes, he did.

And he knew not to talk to him.

He just came to tell me what was going on so that we could be prepared for what was coming.

So everything you know at this point is what the detective has told client that he wants client to come in and talk about.

Yes.

I didn't know any details.

It was just, that was the allegation.

So is the next step you going with him to that interview?

Not necessarily.

The funny part is, is that when you tell a detective that you want to bring an attorney to an interview, they no longer want to interview you.

Weird.

That's crazy.

Yeah, that's uncharacteristic.

That's better unsupervised.

So then what is the next step?

Well, the next step is my client comes in and talks to me.

He tells me that he knows which client it is that is accusing him.

He knows he's got the videos of the surveillance inside the tattoo shop.

He shows me little clips on his phone and says, hey, look, this is what I'm being, this is the person I'm being accused of touching.

But I don't really understand why that is and kind of where the tattoo was and what was happening.

He didn't really know what the allegations were, but he kind of knew who it was and what day it was.

So with all that information, what were you thinking about the case at that point?

Seeing it, it looked like it was simply an issue of this person was getting a tattoo in an area in which he had to touch some sensitive spots and that she just kind of took it and it made it overblown.

Did you see the video?

I did see the video, just the little clips on his phone.

And it showed that he was tattooing her on her upper thigh and had rolled up her shorts to reach that area.

But I didn't see any indication that there was any touching.

Do you know if like as a tattoo artist, he kind of preps his clients when he's going to be tattooing sensitive areas like, hey, I might be getting close to this region or did he say anything like that?

Well, funny part is, is these are discussions we had later on about things that he needed to be up front with people and talk to them about before doing.

But I think at this point, this was a person he knew had had tattoos before.

He thought that this is, she understood what was going on and he didn't really think that he'd done anything inappropriate.

You mean like after you won the trial, you were like, okay, next time you need to have them sign a release.

You're tattooing by the vagina, like you might be some touching.

Well, the truth is, this conversation where I told him about, hey, we, you should probably say a little bit more before you start tattooing was somewhere after I think the second person made an accusation, but before the fourth.

Whoa.

I've definitely had to, after I've won a case, be like, okay, stop touching people and don't talk to police for next time.

I don't know if we touched on this, but the actual tattoo, where was it?

What was it?

It was on her upper thigh.

She was getting flowers tattooed around some dates that she already had.

And so it was, she was adding to a tattoo she already had on her upper thigh.

On her upper thigh.

Okay.

Okay.

So an artist needs some artistic license.

He needs to get up in there.

This is going to be on her body forever.

He wants to make it right.

That makes sense to me.

Absolutely.

And, you know, she definitely used that and turned that into an allocation.

So initially what she said is that she was getting a tattoo and he touched her butt, that he made a comment about her underwear.

And then she added that he grazed her vagina with his hand when he was, she was, when he was rolling up her shorts to do the tattoo.

Okay.

So this is not just, I was doing a tattoo in a sensitive area and I like touched the vagina.

There's also allegations of some other, maybe more, um, I don't know, intentional touching.

Eventually there was more, but at first it was just that he grazed her vagina with his hand when he rolled up her shorts.

Okay.

So when you first get the allegation, that's it.

Correct.

And the form of that, that's just what the complaint says straight up.

Yes.

That's what the complaint says.

The complaint actually had quite a bit of detail of what she said.

And it talked about the things that she said that he touched her butt, that he made a comment about her underwear and that he grazed her vagina with his hand when he was rolling up her shorts.

Okay.

And that's pretty much what the initial police report says too.

Correct.

At that point, do you have the initial surveillance footage?

Well, I, like I said, I did see it when my client first came into my office.

Um, but at the time that the complaint was filed and he was charged is when he realized that those videos only stay available to him for 30 days.

And so he no longer had access to them.

Um, I did get a copy of the surveillance video that the police had subpoenaed from the video company.

Yeah.

So let's talk about some of the discovery that you got.

Well, at first I got the police report that said that the version of the story that the complaining witness first, um, gave, I also got the surveillance videos from inside the tattoo shop from the time she was there.

The surveillance videos that I got, um, ended prior to the end of the tattoo and before she had left, but it had all of the beginning parts of it.

Um, but it had cut off before the tattoo ended.

And the police report stated that the cop had looked at those videos and saw that some of the tattoo was missing and decided to call the video company and see if the videos could have been deleted, uh, calls them.

Um, and they tell him that yes, they could be missing because they were deleted.

Um, and then basically accuses my client of deleting videos in that police report.

However, in the police report, it says that they delete, that he deleted videos.

Yes.

From the very, from the police report, it says that they thought that he had deleted some of that videos.

I, however, also got the subpoena that was sent to the video company and saw that, um, they got all of the video that they had subpoenaed.

Um, but they didn't subpoena past that time period.

And so the parts they were missing was because they didn't request it.

And I don't know if you mentioned this, but after they charge your client, is he locked up or is he out?

Um, initially he, he bonds out.

So he was free at that point in time.

And so we're just having court dates that we're going to for this.

And those court dates are over this discovery issue?

No, I'd received the discovery.

We have court dates.

We have plea dockets, um, where they set it for a plea, um, multiple times.

So you didn't have any like fights about this discovery, this, uh, surveillance?

Oh, yes.

Um, the original prosecutor that was the misdemeanor prosecutor for the indecent assault, which is the misdemeanor charge.

Um, I tried to talk to them about this issue.

What I did is I asked him to watch the surveillance video, um, and look at the times.

Um, and he said that he wasn't going to do that.

He was going to talk to his supervisor because he believed that my client was charged incorrectly.

Oh, so what happens next?

Supervisor's verdict is?

Felony.

Boom.

F2.

Next thing I know, my client has been indicted for two felonies.

Oh, two felonies.

They couldn't even call you back.

They just hit you with an indictment.

What did you, what did you think about that at the moment?

I thought it was insane.

Um, that this guy who had been accused of a misdemeanor, they were now deciding that they

were turning it into a felony.

And I couldn't see where that was coming from, um, you know, until I saw what they decided

that it was a felony with.

Yeah.

So tell us a little bit about that.

What was attached to the original police report was two old police reports, um, about other

things he'd been accused of.

And when the prosecutor looked at the file and saw those, that's what made him think that

he was not charged high enough because I guess he thought he must be getting away with this.

The first one was an old charge from 10 years ago that was a injury to a child by negligence.

And the second one was an incident in 2020 where a person had come to the tattoo shop and accused

him of sexual assault.

Okay.

So one of them was not even in any way like factually related.

Correct.

Okay.

What had happened with the 2020 case?

The 2020 case was an investigation that the police department did and had closed as insufficient

evidence.

Yeah.

When they close something with insufficient evidence, what form does that take?

Like, do you know that just via conversation or is there something in writing?

Is there something in the docket that says why it was dismissed?

It was in the police report.

It was a case that was closed for insufficient evidence as that's how it was categorized.

It was at the time never sent to a district attorney or even presented for charges.

It was just left in the police department records.

Okay.

And so once his name is flagged, they go into all of this and they're worried that he's getting

away with stuff.

And so that's when they change the misdemeanor to a felony.

But not because they have any different allegation as to what happened in this case.

Is that right?

Well, the truth is, is what happened is the prosecutor called the detective and asked him

to reinvestigate and talk to both the complaining witness in this case and in the 2020 police

report and see what new evidence he could come up with.

And that's where the indictments came from.

Okay.

So tell us about that.

Tell us the difference between the misdemeanor and the felony, like the new facts they found.

Well, the incident that he'd already been arrested for, when he reinvestigated that,

he got a new statement from the complaining witness who stated that he actually penetrated her

and that the reason why she had not stopped him or said anything during the tattoo was because then she would have an unfinished tattoo.

Whoa.

So that's way different than what she said.

Way different.

Yeah.

That was the threat of having an unfinished tattoo.

That was the threat that made her not say anything during this incident.

Well, I mean, you want a good tattoo.

It's on your body forever.

You do want to finish the tattoo.

You do.

You want to finish the tattoo.

Then you go to the police.

So she completely changes her story, I guess, and says now she's penetrated.

And then that, the penetration is what makes it a felony.

Yes.

And so the order of events here, first he was charged with the misdemeanor because the allegations supported elements of the misdemeanor charge.

And then they decided they wanted it to be a felony.

And then he went back, the investigator went back and re-interviewed her and suddenly has allegations to support all the elements of a felony charge.

Correct.

Seems legit.

Yeah.

Imagine that.

The 2020 allegation was that a girl had gone into the tattoo shop basically right after COVID where people were barely allowed into them.

And was getting her first tattoo as a newly 18-year-old.

And that during that tattoo session that he penetrated her with his fingers through her leggings multiple times during that incident.

And that she called the police as soon as she left the tattoo shop.

And her mother was in the tattoo shop with her during, at the time, getting a tattoo as well.

And also other people were inside the tattoo shop.

And so when the police investigated that allegation, they looked at the surveillance video and found no indication that that had happened and said that she did not even look upset inside the tattoo shop.

So that's why they closed it for insufficient evidence.

Then, when they went back and re-interviewed her, she added allegations of basically that he was threatening her, that he didn't finish a part of a tattoo as a way to remind her of what he did to her.

She also added that she was basically terrified of him and that he was making all of these comments and looks at her the entire time that made her feel absolutely frightened.

And also that he exposed himself to her and showed her his dick tattoo.

Unfinished tattoos are like the ultimate leverage here.

Did they reopen this case then?

Yes.

So after she gave that second statement, they filed it as a sexual assault felony case as well.

And that's why he went in with one misdemeanor, came out with two felonies.

And during the 2020 case, the prosecuting witness's mom was allegedly there the entire time too?

In the original statement, when she first made the police report, she admitted her mom was there basically the whole time, except for a few minutes.

The second statement, she said her mom was gone the whole time.

Did they keep the video surveillance from the 2020 case?

Did you get that?

Yes, I got that.

And what does that surveillance show?

That surveillance shows is a lower quality video than the more recent one.

It is further away.

There is no audio.

And you can see that the fact that she is there getting a tattoo and that he is doing it, that her mom is there, that she's talking to her mom, she's talking to other people, she's walking around nonchalantly, pays, leaves, just looks very normal.

Doesn't whip his dick out?

Never saw that.

Nope, nope.

Were any of the statements by the alleged victims recorded?

Originally, the statement from the complaining witnesses were on body cam.

The second statements that they made were both not recorded.

Okay, so how were they memorialized for discovery?

They were written out and signed by the complaining witnesses.

Okay, so the second statement is written.

Correct.

The cop wrote the statement and they signed it.

Okay.

So it's not even in their handwriting.

Oh no, it's typed.

It's typed and it's signed by them.

Correct.

What were you thinking when you heard of these new statements?

It really felt like they were pulling a higher charge out of these women and that they had exaggerated everything over time.

That's what it seems like.

What's your client saying about all this?

So my client is adamant that he did not do anything inappropriate and these allegations are untrue.

Okay, and that the initial 2021 that was never followed up on for insufficient evidence.

Had he known that existed at the time?

Yes, he did.

The detective had come to the tattoo shop to obtain the surveillance video and talk to him and his boss at the time.

And so he knew what they were there and what they were doing.

And he remembers the officer coming and getting the surveillance video and saying that he didn't see anything on it.

Was he saying anything about why these women were saying what they're saying?

Yes, he absolutely did have a theory about it that was surrounding his ex-wife.

Okay.

He had a tumultuous relationship ending with her and she was engaged to another tattoo artist in town.

And he felt like these allegations were coming out of the other tattoo shop.

It's a turf war.

Are they rivals?

Yeah.

It's a turf war.

Well, yes, they are all rivals because they're all competing.

Butterfly tattoo turf war.

Tramp stamp turf war.

That could be the name of this episode.

We always find it.

Do these women know each other?

Or the whites?

Well, that's the question, right?

So it's something that I needed to figure out as part of investigating this case is whether they knew each other.

So which case did you end up trying?

Was it the 2020 case or the newer case?

The 2020 case.

What happened to the other case then?

It just was recently dismissed based on the not guilty on the other one.

Oh, so you were just going to try this first and then try the other one second?

Correct.

Tell us about your investigation.

Initially, when I started this, it was really just watching those videos and trying to find out about the people that were involved,

the complaining witnesses and then the two friends that were there as well, looking at their social media,

trying to figure out and trying to see if these two women knew each other.

And I did not find any indication that these two knew each other.

But I did find an indication that the 2020 allegation, that that complaining witness did know the tattoo artist that was his ex-wife's fiancée.

Oh, okay.

So there is a connection.

Correct.

So you're not able to connect the alleged victims to each other, but you're able to connect them to the rival tattoo store.

One of them.

Okay.

And as there were more complaining witnesses, I found more connections that tied everybody together.

Okay.

Say more.

How did you find more complaining witnesses?

While these two felonies were pending, he gets arrested on a new case.

And there is a third victim that has made allegations against him of indecent assault.

And so I am aware that he's got this new misdemeanor case and getting the discovery on that and looking at that case.

There's a new, so he gets a new charge that's like a similar, are they similar fact patterns?

What's the fact pattern of the new charge?

The new charge is that he was accused of touching a woman on her breast and her vagina while giving her a nipple tattoo in the back room of the tattoo shop.

Oh, okay.

First of all, I think he has to touch her on her breast if he's giving her a nipple tattoo.

Correct.

But what are you thinking?

Like, he's picking up very similar charges over and over.

Are you kind of like, bud, what's going on?

Keep your hands to yourself while this case is pending?

Or, like, what's your thoughts?

Well, my thought is I wanted to see the video.

Honestly, this was kind of strange.

So when I looked at those surveillance videos of this one, it was obvious that this was now an allegation made in a spot where the cameras didn't reach in the tattoo shop.

Because they don't have a camera in the back piercing room where they're showing them things that they don't want on camera, like nipple piercings.

Do you think after all this he would, like, take a break from tattooing women or piercing women's nipples or, like, listen, I'm just going to let my, like, female co-worker do this because it's like a rain cloud following me with this shit right now.

I think I would be a little hesitant.

I'd be, like, shoulders and, I don't know, like, arms only for me.

Well, honestly, this is the point in time where we had a big discussion about how he could avoid these allegations in the future.

Right.

By being very explicit about what was going to happen and getting their consent on video prior to that happening.

And, yeah, he was very scared and really didn't know what to do.

Yeah.

But it really sounds like it's snowballing.

So first you have the 2020 allegation, which was dismissed for insufficient evidence, which they're able to revisit.

And then you have the new one that the video doesn't back up.

And the video didn't back up the first one.

And now you have a third one that somehow there could be no possible video to challenge.

So that's a suspect.

And why, at this point, was this publicized in any way?

Were the news involved in any way?

Like, how is this snowballing like this?

It was on the news over and over and over again each time he got arrested.

And they were using the fact that he had deleted videos from that police report and the fact that there were all new

allegations as an indication of his guilt.

And so he was facing a lot of backlash in the community and everybody knew about it.

So was it on the news before they revisited the 2020 case?

After.

After.

Was it on the news before the nipple piercing lady?

Yes.

So you were saying that they, you, when more people came forward, you found connections.

So was there a connection with the nipple lady?

Yes.

I found that she was friends with the 2020 allegation person and that they had interacted for a long period of time on social media.

So now you're preparing for the 2020 trial because that's the older case.

Is that why it goes first?

No, it was a choice of the prosecutor.

Okay.

The week before trial.

So 2020 trial goes first.

You're preparing for that.

Are you preparing for the other ones too?

Well, not yet.

What's really happening is I'm still trying to figure all this out when he gets arrested on another one.

Beyond the nipple one?

Yes.

Another one.

A fourth one.

A fourth one.

Yes.

What are the facts of the fourth one?

The facts of the fourth one is that it is a young lady who comes into his shop to get a tattoo.

Nothing bad happens during the tattoo.

But she says that he wants her to go in the back room to drink alcohol.

And that when they went in the back room to drink alcohol, that he touched her inappropriately and exposed himself to her.

And she was under the age of 21.

So there was the allegation that he was giving alcohol to a minor.

And what was the charge there?

It was indecent exposure, indecent assault, and furnishing alcohol to a minor.

Okay.

And then this was alleged after it was on the news, right?

Yes.

It was when we showed up for a court date.

He got arrested on that charge.

And so this was the fourth one, which also the police report made it very clear that she was responding to the call that the police made looking for new victims.

This guy can't catch a break.

Yeah.

So in that publicized call for other victims to come forward or other prosecuting witnesses, kind of what are they saying?

Is there any incentive for people to come forward?

How do they word it?

They're saying that he's got multiple allegations of people acting inappropriately during tattoos.

And if anybody else has gotten a tattoo from him and have been touched inappropriately, that they should come forward.

This is bad for business for this guy.

Right.

Very bad.

Very bad.

Is he still a tattoo artist?

Yeah, he's a tattoo artist.

And in fact, he, since 2020, has bought the tattoo shop and is the owner of the tattoo shop.

Good for him.

Didn't back down.

Still doing his thing.

Doing it with consent.

Okay.

So now we have four women.

Did you find a connection between that fourth woman and the other three or the ex-wife or the rival gang?

They were all running in the same circles and knew each other from the same bars.

They were all bartenders.

Do you think that this was a conspiracy between all these people?

Not specifically.

I don't think it was a real conspiracy between these four people.

I think it is probably a conspiracy by at least one of them.

But the others are just exaggerating things that happened.

So you think that they just saw something on the news and was like, yes, this happened to me when really it was more of an innocent, like, you chose to go drink alcohol with this guy.

Well, if that happened at all, but yes.

Yeah.

Right.

Okay.

So at this point, there's the four charges and you're just trying to wait and see what order they're going to get tried in.

Well, this time I'm like, let's go to trial.

The supervising prosecutor that had gotten the detective to reinvestigate was no longer working in that office.

And it was assigned to a new one.

And this one seemed unwilling to listen to me or watch any videos.

And so I was like, let's go to trial.

So you're preparing for two separate felony trials.

We don't know which one's going first.

They were going to use the second one in the first one.

And so I was going to have the same witnesses and ask the same questions and try and prove the same case in each trial.

Use the second one in the first one.

Yeah.

Let's talk about that.

So the cases aren't joined.

They're separate cases, but they're trying to prove some sort of mode of operation.

In Texas, you can request notice of anything that they're going to use, character evidence, any extraneous offenses, any bad acts that somebody has done that they're going to use against them.

And so they had listed all of these other allegations as different bad acts that they were going to try and use in the trial against my client to prove that he was a bad person.

What stated purpose do they have to bring it in for?

They have to bring it in for a stated purpose other than conformity evidence to show that he's a bad person.

So that was basically the big deal on pretrial is kind of figuring out how that was going to work and what the judge was going to rule.

But the judge made all of his rulings during trial.

So you guys had a fight about it, and he said, or the judge, he or she said, I'm going to decide this in trial?

Basically.

And up front, what stated purpose were they saying?

They were saying the doctrine of chances, which is a weird modus operandi type argument, saying that because it happened more than once, it must be true.

And this is something that they have absolutely done in Texas, and it's kind of crazy.

So at this point, Kristen, have you talked to the prosecutor about a potential deal?

Like is your client willing to entertain something like that?

I don't know that he would entertain it, but I wasn't given a deal.

So it wasn't a conversation.

So you were going to trial?

Yes.

Is there anything else you did to prepare for trial before we jump into the trial?

Really, it was a lot of investigating, kind of seeing what connections I could find between people,

and watching the videos over and over and over again, and figuring out what I could out of those.

And so it was really just trying to figure those things out in preparation for trial.

And with these videos, is there anything on them that concerns you?

Yes.

In the original case with the girl with the flower tattoo on her thigh, there is a whole conversation that they have where he tells her about his dick tattoo.

So that was pretty concerning.

And then there was, in the case with the alcohol, there was a gesture he made that did look like he was saying, let's take a shot.

And so that was concerning as well.

But for the most part, the videos were pretty helpful to me.

Why?

The videos were pretty helpful because they didn't show that these people were telling the truth.

In fact, they contradicted their statements.

So by and large, we liked the videos.

Correct.

And 2020, the 2020 person said that he, in her later statement, said that he showed her his dick tattoo, right?

Correct.

And not in the first statement.

And that was after police knew about the dick tattoo from the video.

Yes.

And that was my big concern is it really felt like that was something that she was told instead of something that happened.

And that was another connection with the ex-wife because she had a picture of it.

And so she could show it to whoever she wanted to.

So she's like, I'll show you how to make this believable.

Correct.

Talk about the dick tattoo.

Correct.

So coming into trial, how are you feeling about the defense?

I'm feeling pretty confident that the videos are my defense and that the videos will show that nothing happened.

And that that is what is going to be my big thing in this trial.

How's your client feeling about the defense?

He is pretty upset.

He doesn't understand why this is happening and why all of these things are going on.

So he feels very indignant and doesn't understand.

But really, he's terrified about going to prison.

Yeah.

And that's how like the F2, the 2 to 20 range.

What do you even do with that when you're counseling a client?

Like 2 to 20?

I know like when I see that up front, there's a sentencing range and we know nothing about a case.

And you're like, yeah, it's anywhere from this to that.

Kind of like, what?

Did you have any, I'm sure he's just concerned too about the max.

Yes.

And honestly, this kind of case would ruin his whole life, whether he went to prison or not.

I mean, even if he got probation, it would be, you know, something registering as a sex offender.

He wouldn't be able to have a business.

He wouldn't have his kid.

He wouldn't have his wife.

It was like, he would lose everything.

Is it a lifetime registry for those cases?

Yes.

Yes.

And the judge you were in front of, did you know how to counsel him on what might happen if you lose as far as sentencing?

The truth is, is that this kind of case, the only way to get probation is through a jury.

And so we would have had to go to a jury and have a second phase of a trial right after the first one, if that was what was going to happen.

Can you say more?

The jury would be the sole decider of probation specifically?

Well, in Texas, in order to get probation from a judge or a jury, there's rules about different kinds of cases, which ones you can and which ones you can't.

And so this particular offense is one in which you can only get probation from a jury.

And so you have to go to a jury for punishment in order to get a probation sentence.

So juries do sentencing in Texas too?

Oh, yes.

We get judge or jury in every trial, so we get to pick.

Can you plead and then have a jury do the sentence?

Or if you want the jury to do the sentence, you need to try the case?

No, you can do that.

You can plead guilty and then have juries do punishment.

And it has to be unanimous for the punishment too?

Yes.

So you plead guilty and if you take it to the sentencing portion and they're not unanimous, it's a mistrial.

Yes, they have to keep deliberating until they are unanimous or it's a mistrial.

Huh.

That is a different country in Texas.

Oh, wow.

That's incredible.

All right.

And before we get into the trial, anything else?

Any other side stories, anecdotes, anything we missed?

Oh, there was something that happened right before trial.

Not very long beforehand, I get a notice from the prosecutor that there is some Brady evidence about the investigating officer.

What was it?

Brady is evidence that is favorable to the defense that the prosecution is required to disclose.

But what she did is she told me that it existed, but she didn't really tell me that it was.

But I knew it had something to do with the disciplinary history of that officer at that police department.

Well, she said there is Brady, but I'm not going to tell you what it is.

Yes, she told me that she needed the judge to see it in camera and tell her whether or not she had to tell me about it or not.

Wow.

And then what happened?

So, she said it for a hearing, and I subpoenaed the police department to get a copy of that.

And I actually subpoenaed the chief of police.

And so, one of the city attorneys calls me right after that and says, hey, we have it for you.

Come get it.

Oh.

Great.

And so, she handed that file over to me, and so I had it at the time of the hearing.

So, you didn't get it from the, sorry, you didn't get it from the prosecutor.

In your case, you got it from your own records request.

Yes.

From the police department.

This was set for a hearing the Friday before a Monday trial.

And so, I showed up to that hearing, and I had it.

And I'm still asking for a continuance because she hadn't disclosed it to me.

But the judge didn't necessarily say that I could have that and that we were going to trial.

So, what was the misconduct?

He got in trouble for lying in a police investigation into his conduct.

What was the lie?

What he lied about was having a, sending naked pictures on Snapchat to another officer's wife.

Oh, whoa.

What was his lie?

Just that it didn't happen?

Yeah.

Did you, did you end up using it in trial?

No.

But I had it right there on the desk, and the officer knew it.

So, he knew that if he didn't answer my questions truthfully, that I could pull it right out and impeach him with it.

Yeah, that was enough to scare him.

You had it on the desk, like, the piece of paper?

Oh, yeah.

His personnel file, which had his picture on the front.

Had you to rock.

That's enough.

That's enough.

The only other thing, pre-trial, was us talking about the character evidence, which the judge did grant a motion in lemony so that we couldn't bring it up in front of the jury until he had ruled on it.

And so, he decided that he would make these calls on whether this evidence came in during trial.

I was pretty upset about that because there were basically four different cases that I had to prepare to try if those things came into evidence.

So, how does that work?

So, basically, the prosecutor will be like, okay, judge, sidebar, I'm about to use this evidence, can I?

And for this purpose.

It's even worse than that.

She has to put on enough evidence for the judge to find that the jury could find it beyond all reasonable doubt.

So, she has to actually have the jury leave and have a little more dire of the witness type situation where she asks questions and then the judge makes a ruling.

That the allegations were true?

Yes.

Because the jury would have to be able to find the other allegations, true beyond a reasonable doubt, to find this kind of pattern of conduct?

Yes.

The jury instructions literally say that a jury has to find that these other allegations are true beyond all reasonable doubt before they are allowed to consider them as character evidence.

What?

So, it's like a little mini trial in a trial?

Yes.

Oh, my gosh.

Things that we're trying to avoid, I think.

Things that the rules of evidence are.

Can you imagine those jury instructions?

You're so lost in the sauce.

All right.

So, you're dealing with that and you go, you start to prepare for the first day of trial.

On the morning, how are you feeling?

I'm ready to pick a jury, really.

I'm pumped.

How's your client feeling?

He's nervous and confident at the same time.

He really kept that demeanor for most of the trial.

And how's the prosecutor?

She is, thinks that she is going to win this case, no problem.

Okay.

Did she say that to you, like, in what context?

It's her whole attitude of everything that she's doing.

She is pretty confident.

So, what type of jury are you looking for?

I'm looking for somebody who's not going to be judging a person for having tattoos.

I'm looking for somebody who is wanting kind of the logical answer here and will really look at the evidence, the physical evidence, the videos.

I want somebody who's really going to say that that matters more than anything else.

Do you have a deal on sexual assault?

Yes.

How?

So, I'm looking for anybody who says that they are uncomfortable talking about these things or has had bad experiences.

Okay.

And did you have any jurors in that vote?

Yes.

There were definitely some.

I mean, most of them were kicked off for cause because they admitted that that would influence them.

So, a few causes just based on people not being able to separate their personal experiences from the subject of the trial.

Yes.

It's giving more weight to one side or the other without hearing any evidence, basically.

Did you voir dire on tattoos or have anything, any interesting moments with jurors on that?

Well, surprisingly, a lot of the jurors had tattoos and were very happy about that.

And nobody seemed to really have a problem with it.

But it was kind of fun to have all of these people raise their hands and say, yes, I've got tattoos you can't see.

Nice.

So, that was the question, like, who here has a tattoo?

Absolutely.

I wanted to know.

Did you talk to them about their experiences getting those tattoos?

I just asked if they had any bad experiences or uncomfortable ones.

And people would admit that it was painful, but except for the guys who were like, no, it was fine.

It was not even wrong.

Of course.

Right.

Do you have a tattoo?

I do not.

But I have told my client that he gets to give me a tattoo if I got a not guilty.

So, I have to get one now.

What are you going to get?

A Lady Justice in a pantsuit.

Nice.

Nice.

That's cool.

That's a good one.

On your neck?

Oh, no.

Right on my shoulder.

Back of my shoulder.

Aw.

You can't go neck for first tattoo.

I think shoulders are a safe bet there.

Rules, rules, rules.

So, any, like, memorable moments from Bois D'Or?

Any hijinks?

Well, I did get a lot of jurors to explain why somebody would make up an allegation of sexual assault.

And that was really nice to hear all these different reasons that they came up with without my help.

What were some good answers?

Oh, just that somebody had mental health issues or they needed attention or they were immature.

Things like that.

Okay.

You had them engaged?

Had them talking?

That's good.

Any, like, answers you didn't like?

Was anyone just not feeling your defense at all?

Those were the people that I did not let on my jury is the ones that seemed to be pretty angry about me suggesting that somebody would make it up.

Okay.

So, you could weed those people out pretty quickly then?

Yeah.

Okay.

So, but overall, were you pretty happy with your jury going into the rest of the trial?

Yes.

I thought they would be, it was the best I could do, really.

How was states about you?

Or lack thereof?

They did absolutely do a lot of it, making sure that they didn't know anyone.

But it didn't seem like they really got a lot of good answers out of anyone or good information.

They really dig in on that question of who knows who.

What do you mean not knowing anyone?

Like, if the people didn't know the witnesses?

Yeah, they're like, do you know this person?

Do you know this person?

Does anybody know this person?

Does anybody know this person?

Nothing for the judge.

Pass, pass, pass.

Sounds like you shone and they were a dud, as per usual.

I'm going to back up a little bit.

So, at what point do you know which charge you're trying?

About a week before or two, maybe.

Okay.

And which charge is that?

It's a 20-20 charge.

So, now we're pulling up to opening, and state goes first.

What's their opening about?

They're just trying to show how this poor girl, young girl, was taken advantage of and assaulted,

and she's very traumatized by all of this, and that's what they were going to hear about.

What was your opening like?

My opening was, watch the videos, watch the videos, watch the videos.

You won't see anything in the videos.

Did you have a theme or any, like, recurring, or was it watch the videos?

That was just kind of the thread.

It was just like, believe your own eyes more than anything else that you hear.

Like, believe yourself.

Okay.

That was kind of what I said.

So, state's first witness.

Who do they call?

Their first witness was the mother.

So, the mother who was there at the time of this alleged incident.

Actually, let me, that's not true.

We won't know.

You can say anything you want.

You can say we weren't there.

Their first witness was the officer who investigated the 2020 incident in 2020.

How does that go?

When he's on direct, he is not telling what actually happened at all.

It's like he only knows what's in his police report and not what actually happened.

So, he's, like, skipping over things and is really not understanding all of what happened.

Well, what do you mean what actually happened?

Like, what was reported in 2020?

Yes.

It's like he only knew, like, the snippets of it, but he didn't know all of the things that happened in between.

So, it'd be like, who was there?

And he wouldn't know who was there.

Or how many people were there.

He wouldn't even be able to answer that question.

So, he kind of didn't remember and he also didn't do any, like, brushing up before the trial.

Right.

And I'm asking him questions like, well, was her father there?

And he was like, oh, no, he wasn't there.

And he was.

Or asking, like, do you remember when the pastor showed up?

And he's like, no, I don't remember any guy showing up.

So, on direct, what, he just testified to, like, what he thought happened and then now you're impeaching him.

Right.

So, I'm sitting there like, he doesn't remember anything.

So, that's when I get the video and play the video to show that nothing he's saying is even remotely true.

And that's his body cam video?

Yes.

All right.

So, he got a chance to impeach him with his body cam video.

Yes.

And is this the officer, the same officer, that decided not to actually bring the charges to the prosecutor for insufficient evidence?

No, this was the initial officer who was taking the report.

It went to a detective after that.

Anything else you got from this officer?

No, just that really that his memory was pretty bad and that he was just given the story that he was being directed to give.

So, who was the next witness then?

The next witness was the mother of the complaining witness.

The mom who was there, present in the studio the entire time?

Yes.

Okay, how does that go?

You can tell that she babies her daughter a lot and that she was willing to say anything that she was kind of prodded on to exaggerate or add things to the story.

So, add things that she didn't add in her initial, say in her initial statement?

Yeah, and things that would be consistent with what her daughter said.

That she, because she only gave a statement, she didn't really give a statement, she had only appeared in the body cam video telling her version of what happened.

Right.

And so, when they went and reinvestigated and got a second statement, she was like basically saying that some of those things were true that she had never said before.

What do you mean those things?

The things that her daughter added in the second statement.

Oh, okay, okay.

And was she like very emotional on the stand when she was being directed by the prosecution?

No, only when I was crossing her.

Oh, okay, yeah, yeah.

So, let's talk about that.

What type of emotion?

Anger.

She was very angry with me.

Okay, I like that, honestly.

I think you can use that too.

Like, look at this witness, you know.

She's, her daughter just allegedly got assaulted and now she's acting like this.

So, tell us about how you crossed her.

I was just trying to point out the fact that she hadn't said a lot of these things before.

And she was just pretty adamant that she wasn't the one telling the story the first time.

But also trying to point out how much time she was actually inside of the tattoo shop during all of these things that were being alleged.

Yeah, because the biggest inconsistency here is whether or not she was present during the allegations.

So, what is she, what's her story on the stand as far as how long she was in there, what she saw?

Well, she's talking about like, it was like 45 minutes that she was out of there or an hour.

And she's kind of saying like those kind of things.

And I'm showing the exact times.

I'm like, it was like this many minutes.

And I think it was like 17 minutes or something that she was actually out of the room.

So, she was like fighting me on admitting that.

And so, that's kind of what was going on.

And you got those inconsistencies out in Cross.

Yeah.

Who's next?

Next is the detective that investigated the case.

So, is this the guy who decided not to pursue charges the first time?

Yes.

Okay.

So, how does this go?

What I'm trying to do with this witness is really bring out the fact that he left the investigation as not enough evidence.

Because he literally didn't say that during the direct.

You wanted to get out of him that he didn't pursue it because there was not enough evidence.

Correct.

Okay.

And so, that was your goal with this witness.

Yes.

And he was reluctant to admit that to me.

But I did think that the jury kind of held it against him.

The fact that he didn't actually say that that's what happened during direct.

Kind of avoided saying what happened to the case.

Yeah.

I guess that's a strange choice from the prosecutor's standpoint.

Because that is what happened.

Right.

And it kind of looks like he's hiding the ball.

Yeah.

Was that anywhere, like, in paperwork, like, not pursuing charges because of lack of evidence?

Or did you just know that?

Yes.

It was a sentence in the police report.

So, all of direct, that doesn't come up.

Then you cross him.

And you're like, hey, is this your police report?

Is this you?

Insufficient evidence?

And that's the first time the jury hears it.

Right.

Yeah, that stings.

Yeah, that does sting.

Aside from that, was there anything else that you wanted to get out of that witness?

This is the witness in which she used to play the surveillance video.

And she was showing, basically, clips here and clips there of what was going on.

I was trying to show bigger portions.

And I was getting a lot of pressure from the judge to wrap it up and make it quick.

No.

Yeah, no.

How do you deal with that?

I was just trying to strike a balance, really.

I felt like I had gotten out when I needed to.

But afterwards, I was feeling like I didn't show enough of the video and I needed to do it again.

Is there another opportunity to show that video?

Absolutely.

I guess through the prosecuting witness.

So, who's next, then?

Next is when the prosecutor tries to use the evidence of the other cases.

Oh, so with this witness, he tries to use the evidence of the other.

She tries to use the evidence of the other cases.

No, she informs the judge that this is the time that she wants to present her evidence in order to get that ruling so that she can get in front of the jury.

So, she sends the jury out so she can have this hearing about whether these other cases are coming in.

Okay, so now you're having the trial within the trial.

Who do they call to try to get this improper character evidence in?

First, they call the complaining witness, the one getting a tattoo on her thigh.

Okay, so this is the second, chronologically, the second one, the second complaint, but this is the first complaint that you got.

Correct.

So, tell us how that goes.

So, they do bring in this complaining witness to tell her side of the story, but during this procedure, I am not allowed to ask her any questions.

Wait, wait, what?

You can't, it's just the prosecutor.

Yes, the prosecutor just has to put on a prima facie case that this is enough.

But it's prima facie, fasciariset, that it could be found beyond a reasonable doubt that what she's saying is legit.

Right, and I definitely made the argument that my cross-examination would show that that's not true.

And that she couldn't.

Right, but it's unreal.

Texas and what?

Okay, so they, so who's the first person they put on?

Sorry, I got distracted by the horribleness of this hearing.

The first was the girl who got the tattoo on her thigh.

Oh, okay, yeah.

They had her two friends there.

Thigh girl.

Okay.

So then what did she say?

It happened, they're like, okay, next.

Yes, pretty much.

She's talking about how when she came in to get her tattoo, she didn't really know what she wanted.

And he was like encouraging her to get it up her thigh and that he was wanting it to be in the more sensitive areas.

And she didn't.

As creeps do.

She also talks about how it happened when he was rolling up her shorts and not afterwards, not when her friends were there.

Kind of inconsistent with things she said before.

And you can't cross-examine on that at all?

Not yet.

Not yet.

Okay.

So then who else did they put on in this super secret hearing?

Oh, just that for that now.

Oh, oh.

So this is going to go like piece by piece by piece.

Yes.

Judge rules it's admissible and lets her get on the stand.

Okay.

So then the jury is brought in and then now it's the big show.

Yes.

So let's talk a little bit about her testimony.

She's pretty, um, kind of makes her seem like she's, you know, a young innocent person and was put in this situation.

That was, she was so uncomfortable.

It was so awful.

And talking about how she was struggling.

She was just very, um, poor me, poor me.

This is horrendous.

Her whole direct was about, just about her allegation and what happened.

Correct.

Okay.

So what was your cross like?

I am bringing out the fact that she testified in my client's family law case.

And said something different.

Oh, wait, wait, wait.

I don't think we know about this.

So in between the allegation and this trial, there's a family law case where the, is the wife trying to get custody or something?

After he had been indicted before the trial, while all of these cases were pending, the mother of his child had filed to make sure that he had supervised visits with his child and couldn't have regular visits because of all of these allegations.

Okay.

And she testified in that hearing?

Correct.

And she testified differently in the trial?

At that hearing, she testified that the sexual assault portion of the tattoo happened after the video ended.

Because at that time, she thought he had deleted video.

Okay.

By the time we were in trial, she knew that that wasn't the case.

And so she said that it happened prior to the end of the video.

Prior to the end of the video?

Correct.

So on the video?

Correct.

Oh.

Okay.

Okay.

So how did you deal with that?

Really, what I was doing is showing that she's changing her story based on what the police are telling her are the facts.

Which is kind of the theme here throughout, is that that's how this litigation is snowballing, is first it's a misdemeanor, so these are the elements.

Oh, but now we need to make a felony, so these are the elements.

And yeah, it's tracking.

Right.

So she started off saying this is misdemeanor conduct.

Then the police are like, hey, can you make it a felony by saying this?

And then she says that.

And they'll go to this hearing.

She's always changing her story based on what the police are telling her.

Did you impeach her with the video itself?

If she's saying it happened on video and you have the video.

I did not impeach her with the video.

Okay.

Because you're not really trying to try her case right now.

You're just trying to discredit her.

Correct.

Okay.

I'm wanting her to double down on it happened while the video was going so I could show it didn't.

Right.

So I liked that answer.

Okay.

So then who's next?

Next is one of the friends of hers that was there.

How is this?

So they're trying to prove that case.

So they're putting in more witnesses to bolster that case.

The case within the case.

And the part that was outside the presence of the jury is just the complaining witness.

But the friends just come in directly in the presence of the jury.

Correct.

Because it's already now been admitted.

This whole allegation's been admitted.

So they can put on more evidence of it.

But they're not trying to prove that case right now.

So they're just trying to bolster this one.

Yeah.

It's a tangled way we weave.

That's crazy to me.

I'm sorry.

But that feels very I mean it feels more prejudicial than probative to me.

Exactly.

Exactly.

That was my argument over and over and over again.

Over and over and over.

Oh my God.

Like way more.

I don't know.

I just thought that at least like drawing back on law school that a lot of these rules that we have is to prevent these trials within trials.

Yes.

I guess in Texas they're like let's do it.

We try it all.

They came up with the doctrine of chances as a way to get around it.

I mean the name says it all.

I don't know why we're acting shook out here.

The name sounds like some old timey like 1920s.

The doctrine of chances.

Monopoly man thing going on.

Pursuing to the doctrine of chances.

Exactly.

There's a chance.

They're guilty.

Send it.

Now we're on the friend and the friend's just going to bolster the thigh tattoo witness.

Yes.

So I got to ask him about how he got kicked out of the military for using cocaine.

Cocaine with the complaining witness and the other friend that was there during the time period that this happened.

So we're knocking him down.

Yeah.

He made this wonderful statement in front of the jury about how he might have been using cocaine but he knew he was not high on that day.

He had his little cocaine journal.

In 2020?

Let me look at my calendar of highs.

All right.

So we've discredited that guy.

And so who's next?

The officer who investigated her complaint.

The officer who investigated.

Okay.

So we're still trial within trial.

This is the 2020.

Is it 2022?

Yes.

2022.

Tattoo on the thigh girl.

The officer that investigated her complaint.

So what are you trying to get out of this witness?

What I'm getting out of this witness is the things that happened on that video that were insane.

So this is the witness.

You said you used the video, the surveillance video in another witness.

This is that witness.

No.

This video is the body cam video.

I'm like blown away that you can have a full trial within a trial.

It's a full trial.

They're down to the officer.

I know.

They're not proffering anything.

This is blowing my mind.

The judge is like, this is fine.

I have all week.

In fact, I have two.

There's no way the jury is tracking this.

They're like, what?

Yeah.

What do you think they're like?

Are you, are they like falling asleep?

Like what's happening with the jury?

I think they're at this point pretty fascinated.

Okay.

Because they were told that this was going to be about one thing.

And now they're hearing about a second one.

So now you're playing this officer's body cam.

And what's like, what's he saying?

I'm not actually playing it.

What I'm trying to do is getting him to admit the things in it, which is the fact that when

she came in and made this report, she came in and said it was a sexual assault.

He heard her story and said that it wasn't even a crime.

Okay.

So he couldn't do anything.

Then he called his supervisor who told him that he could charge her with a misdemeanor.

And then he came back and said he could charge her with a misdemeanor.

And then she asked him, what would it take to make it a felony?

Basically.

And he told her.

Both times in these cases that had become felonies, initially the officer said, this

is not enough for a crime.

Right.

But it would be enough if you said X, Y, and Z.

And then they say X, Y, and Z.

Yes.

And so you got to get that out.

At least in, so now we're still in 2022.

Not even in the case we're actually trying.

Right.

You got that out through this officer that initially he didn't even think it was a crime.

Correct.

And now we're, now we're at a felony.

So the next witness, are we still in the trial within a trial?

We're in the next trial within a trial.

Oh my God.

Oh, so how many trials, so we have, we have three trials within this one trial.

It's all the, all the women.

Well, some of them.

So then next they, she wants to do another hearing that I'm assuming.

Yes.

We're kicking the jury out.

What's the next hearing?

The next hearing is the girl that said he gave her alcohol.

This is now the third person who's come forward?

The fourth.

Okay.

So now we're on the fourth person who's come forward.

This is the minor who said that she went to the back with him and drank alcohol and maybe

he showed her his dick tattoo too or no?

She said that, yes.

Yes.

Okay.

Talk about her testimony in this hearing.

So jury's out the hearing.

She just comes in and says, basically she went to get a tattoo.

He gave her, said she wanted to get a drink.

They went in the back.

He, uh, exposed himself and touched her.

You know what's good about these little hearings within hearings?

Nothing except that you can kind of get a preview of how these people are going to testify.

Right.

Right?

Does she say anything in this, like, uh, hearing that's outside of the purview of the

jury that is, like, sending off any red flags or like, okay, I'm going to use this in

my impeachment or my cross?

It was more of what she didn't say than what she said.

Correct me if I'm wrong.

The judge finds that, beyond a reasonable doubt, the jury could find that this happened.

Yes.

Okay.

I can't get over that standard.

This witness then testifies again now in the presence of the jury.

Correct.

How'd that direct go?

Really, she was impressing the jury by her, um, the fact that she had flown in from Florida

to come and testify.

Must be true if I'm flying in.

It's actually an element of the offense.

Flew in from Florida.

Flew in from Florida.

Which is not that far.

Okay.

It's really not.

Is she emotional when she's testifying about this?

Are any of these women emotional?

Not really.

I mean, she, um, was very much, um, acting like she was just kind of going along with

this.

She, I mean, she actually testified that she didn't drink the alcohol that he gave her.

She doesn't want to be in trouble.

Yeah.

How old is she?

She's 20.

20.

Okay.

Is that, is that it for that second trial within the trial?

Correct.

They did show the surveillance video of the, um, inside of the tattoo shop showing that

he made that gesture of taking a shot basically and her coming out of the room, but there really

wasn't anything else to show.

Who testified next?

They brought in the complaining witness from the case from 10 years ago to come and tell

the first side of the story.

The 10 years ago case is the one that is like a, remind me of the facts of that one?

That was the one where it was, he was convicted or was on deferred adjudication for, uh, injury

to a child, to a child by neglect.

What witness are they bringing in?

The child?

Yes.

The, um, the child who had made allegations about him back in the past, 10 years ago in

the past, um, which he said were not true.

They didn't have great evidence.

So they, uh, basically negotiated down to this injury to a child by negligence because there

wasn't great evidence in that case.

How old was the child at the time?

I believe 16.

So now, now 26.

Right.

So tell us a little bit about this witness's testimony.

Basically, she was just saying that, um, he was trying to be inappropriate with her when

she was a lifeguard and he was her boss.

He was still pretty young.

And so it was supposed to be like a inappropriate relationship between like a teenager and a

20 or something year old.

Are you, are you worried about this at all?

I mean, like for me, it's like the stories are like piling up and piling up.

I'd be really worried about what the jury's thinking.

Yeah.

I didn't want this one at all.

I didn't like it at all.

I didn't want it.

I thought it was awful.

After they take this testimony, you guys have an argument about the witness coming in?

Yes.

The judge agreed with me on this one that it was too remote and too dissimilar to these

allegations.

And so it wasn't coming in through the doctrine of chances or any other theory, uh, that it

was just character conformity evidence and he wasn't allowing it in.

Great.

Cause that would be terrible, I think.

Yes.

So then that's a little win.

That feels good.

It's gotta give you a little adrenaline boost there.

So, um, who's the next witness then?

Next, they call the, um, investigating officer of the

the two felonies, the one that went and reinvestigated the case.

So are we done with trials and trials?

Yes.

So now we're back to the 2020 case.

Now we're in the main trial.

All right.

So let's talk a little bit about his direct.

So this is another witness that I am letting her lead the witness.

Prosecutor is basically telling the story and this officer is just like, yep, yep, yep,

yep.

He's really not adding much.

And what story is she telling on his behalf?

She basically said that he decided to reinvestigate this case because he found the older offense

in the system.

And so when he saw that, he decided he was going to reinvestigate and he, it didn't

have anything to do with what the prosecutor had called him to ask him to do.

He found the 2020 case and said, hold on, I need to reinvestigate that.

Yes.

Sua sponte.

Yes.

Tell us a little bit about how you, you handled all that.

In cross-examination, I'm bringing up the police report where he literally says he

got called by the prosecutor and told to reinvestigate.

Oh, wow.

And thinking he looked like an idiot.

I love hearing stuff like that during direct.

You're like, yes, let me at him.

What'd he say?

Did he own it then?

Oh yeah, he did.

Anything else in his cross that was helpful to your case?

This is when I'm bringing in the videos of, of inside the tattoo shop during

thigh girls tattoo.

Okay.

I'm literally showing him clips.

I'm like, these are the clips that you said were the ones in which you thought a sexual

assault might've occurred.

Right.

And letting him like literally look at these clips.

I'm like, these are the ones.

And these are the only ones you found and showing them for the jury and showing the jury that

there was no sexual assault happening in those clips.

And like really pointing out like, you didn't see it in there, but these are the only ones

that you thought might be.

What'd he say?

He agreed.

He had to, he couldn't, he put in his police report.

I also brought out the fact that he had accused this guy of deleting videos and like had done

all this investigation to find out that he deleted videos, but all he'd really done is

put the wrong time on the subpoena and he was really the one at fault and he was making

him look bad.

Well, what about the 2020 case?

Did you talk about like how the stories changed from the first one to the second one?

Or did you just get the story out and argue it later?

I did point out the differences between the statements, but I couldn't do much with him

other than point it out.

And this is probably their most authoritative investigating officer in this entire case.

And you kind of just wreck him on cross.

Is the, can you read the jury at this point?

I think they were mad when I pointed out the fact that the prosecutor had gotten him to

reinvestigate.

You could see they were kind of like, wait, what?

Like we didn't get the full story.

There were some of those moments.

I think they really were following me with this cross because I really was ripping into

him.

Yeah.

Now you have a crowd.

Now, every time you cross someone, they're like ready for it.

They're excited for it.

Cause they know the story is just going to U-turn.

Nice.

Yeah.

Who's, who testified next?

I missed the, when the victim testified.

I was going to say.

Yeah.

So what, yeah.

When did she testify?

Is it in the beginning before the trial and the trials?

She testified after her mother.

Let's talk about the prosecuting witnesses testimony.

So she's just painting this picture of just very naive girl going into this and was just

absolutely traumatized by this experience about how he was giving her threatening looks and

that he was telling her to say that he was telling her not to say anything and pushing the tattoo gun into her harder.

First time she said that.

And that he had told her that when he did her tattoo, that he left a spot empty to give her a place to remind her of what he did to her.

And this is the first time you're hearing about any of this.

She was just like exaggerating things she said before.

This time when she's on the stand, does she say that her mom was there or was not there?

She kind of puts it halfway in between of what her two statements were.

It was like at the beginning she thought that her mom wasn't there, but she has realized that she was mistaken.

And so she might have been there longer than she thought.

Anything else on direct from her?

What I did find interesting is that she did not mention the dick tattoo part on direct.

Oh, okay.

So that's something that she said in her second statement that turned this into an uncharged thing into a felony.

She didn't mention that in direct.

Yes.

Okay.

So then how did you deal with all this on cross?

Well, the first thing I brought up was the fact that she hadn't mentioned that on cross.

I'm also pointing out the different stories that she's given as far as how many times it happened, how long each time was, on which side she was laying on during that.

The other thing I'm pointing out is I'm really using the video to show her this period of time in which she said that he told her that he left this spot open so that she would have something to remember him by.

I'm showing that portion of the video and showing that there was not a conversation during that part of the time.

Period.

Oh, okay.

And so she is telling the jury, after I'm pointing this out, that it wasn't really said, it was understood.

Oh.

So I'm like, so you just knew what he was, when he looked at you, that he left a spot open in your tattoo?

She's like, yeah.

All right.

Whoa.

Then that's all the witnesses.

Yes.

Yes.

And so what happens next?

Now it's time for me to put on a case.

Who was your first witness?

There was a woman who came in and testified that she had let her daughter get a tattoo for her first tattoo and that she was there.

And that it was, she had to expose herself, but because of where the tattoo was, but that there

was nothing inappropriate and that she trusted him.

What was the purpose of that testimony?

To show that this, that she did not have any feelings about him being inappropriate or have

any qualms about having him do a tattoo on her daughter.

And how are you getting this in?

Are you allowed to get this in to rebut their offering of the doctrine of chance?

Well, honestly, I don't know that I should have been able to get this in, but it wasn't

objected to, so I did it anyway.

That witness is just to show that, you know, he's not a creep to another woman who's bringing

her daughter in.

What other witnesses did you put on?

I put on a person who was doing piercings in the tattoo shop.

During the time of the girl with the thigh tattoo.

Okay.

So he was there when this would have happened?

Yes, he was there.

Okay.

And what did he testify to?

He testified to that it was not a memorable day, that nothing happened and he doesn't have

any real memories of it because nothing happened.

Okay.

And then the purpose of this witness is just like nothing happened.

Yeah.

That he was there and he didn't see anything appropriate, inappropriate.

What was his cross like?

Not much at all.

And then your third witness, who were they?

Another tattoo artist to talk about how you have to, you know, remove clothing over and

out of a big area when you're tattooing, that you have to touch people inappropriately and

places that would normally be inappropriate and how that's just part of the job and nobody

really likes it, but it's part of what they do.

So this is your expert witness.

Yeah.

Kind of.

And they're testifying to just norms of the trade.

Correct.

Okay.

Any, any cross there?

Not really.

These are all witnesses your client brought to you, right?

Yes, they are.

Okay.

So we're on to clothes, prosecutor clothes.

How was that?

What was her clothes like?

Well, her first closing was just basically, these are the elements.

This is what you have to decide.

It wasn't much at all.

Open bland.

Open bland with her clothes.

Great.

So then what was yours like?

Mine was really talking about how they got to see with their own eyes that nothing happened

and that whatever reason that these women made any kind of allegations, does it really matter?

We don't really know because you can see that nothing happened.

And you're talking about every single, every single allegation that came up in this trial.

Yes.

And I'm pointing out the different parts of it and the different things that I brought

out, their inconsistencies, the different reasons why they shouldn't be believed.

But really, it was you watched the video.

You saw the video.

I mean, are you worried the jury's not going to buy like three just coincidental allegations

that were just wrong or were untrue?

Yeah.

And really, that is something I talked about.

It's like, you can't just say that this is true because multiple people say it's true.

You have to look at each one.

Mm-hmm.

Smart.

And decide individually.

That's a good way to handle that because I would be very worried about that.

Like, well, one, maybe, two, maybe, but three.

Holy moly.

Did you play the video in closing?

When I opened up my case, I played the video.

Okay.

When you opened your, on your case.

Like in opening, you played it?

No, when I opened, when the case was passed to me, before I called any witnesses, I played

the video.

Wait, so do you have a minute to, before you call your witnesses, you can address the jury?

No, no.

I just played the video.

I.

How?

What I.

With what witness?

Without any witnesses?

Correct.

Like as an opening statement for the defense case?

Kind of.

I mean, it was an opening statement.

It was, hey, judge, the jury has heard a lot about this video.

They've seen clips.

This is part of the evidence.

I want to show the whole thing as part of my case.

Don't want to get too bogged down with that, but that's.

I'm bogged down.

I'm going to stay bogged down.

I'm bogged.

Yeah.

I'm a little bogged.

Very bogged.

I'm bogged with some other stuff in this trial too, but.

I'm highly bogged.

I'm.

I'm bogged by the trials in the trials too.

All right.

Anyway.

Let's talk about the rebuttal close from the prosecutor.

The rebuttal close was basically just because you can't see it doesn't mean it didn't happen.

And really her main thing that she focused on was that this girl would not make this up, that she has no reason to make this up.

None of these girls have any reason to make this up.

Nobody would go through this for no reason.

It has to be true because they wouldn't make it up.

So kind of a cyclical argument that it's true because we're in a trial and we're in a trial because it's true.

So we finish close, then you give it to the jury.

How are you feeling?

I am feeling like I can't trust how I'm feeling at that point.

Yeah, that's a roller coaster.

That I wasn't sure what was going to happen.

I was just going to wait and see.

What's your client think?

My client was extremely nervous and was not expecting it to take a long time.

He wanted it to be over really quick.

He actually had sent his wife away from the courthouse.

He didn't want her to be around him when he was so nervous.

He was just beside himself.

How long was the jury out?

Let's see, about six hours.

What did you guys do in the six hours?

We are not allowed to leave the courthouse while the jury is deliberating.

What did you do?

Are there snacks in there?

Well, I mean, there's a machine, a snack machine.

We sat outside the courthouse.

So you sat there with your client and just like making small talk until you got the call?

Yes.

First call, though, was a question.

Okay.

What was the question?

It's four hours in.

Okay.

We get noticed that there's a jury question and we go up and it's a note that says we're

deadlocked 6-6.

6-6.

Wow.

Down the middle.

So what happens there?

What does the judge do?

The judge brings them back in the courtroom and tells them to keep deliberating.

And they do.

For two more hours.

Right.

So talk about the call at two hours later.

We get called.

We come back in the courtroom.

We're not really sure what's going on.

We're just told to come up there.

Then the judge comes out and says, they're still deadlocked.

What do you want to do?

So he asked you what you want to do?

Yeah.

He asked us what we want to do because when a jury's deadlocked, you can send them back

as many times as you want to.

And so he was just kind of asking the attorneys kind of, do you want me to send them back or

not?

And what'd you say?

No, because they were 6'6".

Yeah.

They weren't moving.

It wasn't happening.

Did you think about sending them back again?

No.

Okay.

At this point, that was a win.

Hangs a win.

Yeah.

Hangs a win.

Anything that's not guilty is a win.

Did the prosecutor fight you on that?

Were they like sending them back?

Not really because it was 6'6".

I think if it was different, it would have had a different effect.

But it was like 1030 at night at this point.

Oh, God.

But I will say, I know it's late at night, but six hours on an F2.

That was just like 10 trials within a trial.

Like, that's not a lot of time at all.

Like, we see misdemeanors get deliberated for like days.

And so I'm surprised that, like, if I'm a judge, I'm like, you guys go back there.

Figure it out.

That's not the way it works here.

They don't really deliberate overnight ever.

They don't come back to deliberate?

No.

It could be a murder and they're like three hours in and it's 10 and they need to just

figure it out.

There are exceptions to it, but for the most part, no.

So it's split.

What happens now?

Hung jury mistrial.

All right.

So everyone goes home at 1030 p.m.

Hung jury.

Do you know, like, how the jury was split?

I didn't know for sure, but I had a good idea.

What are the teams in the split?

So I noticed that the men and the women were not interacting with each other and seemed

to be in opposite ends.

And so I figured that that was the split is six women on one side and six men on the

other.

Okay.

Did you have an idea of, like, which group thought was guilty and which group that was

not guilty?

Yes.

I really did think that the men thought not guilty.

Okay.

So are you trying for more men on your next jury?

I am.

Yep.

What's your approach the second time?

What I wanted to do in Vordire is to really get the jurors to think that they were allowed

to make decisions about definitions of things and what is and what is not sexual assault.

And kind of give them more agency to make these decisions.

And so when the prosecutor is saying, even though it's not on video, it could have still

happened, I also wanted them to say that, make them think that that was something they

didn't have to agree with.

The prosecutors for Vordire this time was a lot on consent.

What she had done is she had added some extra means in the indictment of proving non-consent.

What do you mean?

So in our indictments on a sexual assault, if you're saying that there's not consent, you

have to pick away a definition of why it's not consent.

And the first time she used the fact of threats or force.

And this time she added things like the person was not aware the sexual assault was happening.

So they changed the section under which she was charged?

It's an amending of the indictment.

And they're not changing the charge.

What they're doing is adding alternatives of ways they can prove non-consent.

And that matters for the jury instructions?

Correct.

What else in Vordire was different?

I got some really great answers from people.

When I asked about the defendant not testifying, there was this guy who was like, well, if I

was on trial, I've hired a lawyer for a reason and they're the experts on this.

So I'm going to listen to whatever they say.

It doesn't matter what I think.

I'm going to do whatever they tell me to do because they're the experts.

Nice.

All right.

So you liked the second jury too?

Yeah, I really liked the second jury.

Other than the first?

More than the first jury?

Mm-hmm.

More men?

Yes.

What's the ratio?

Nine, three.

Okay.

The only time more men is better is on this jury.

Without going back through every single witness again, was there any notable changes, right?

Like from, or things that you did different from the first trial to the second trial?

I will say that the prosecutor really downplayed kind of the extra stuff that the complaining

witnesses were saying about the dick tattoo and exposing himself.

She was really trying to downplay it as well as the, any kind of threats that he made.

She was trying to pretty much go back towards the first statements.

She was worried that the inconsistencies would discredit them at this, at this time.

And the, the second one, the one with the thigh tattoo, when she got on the stand, she

acted like she hadn't reviewed anything.

She didn't remember half of what she said before.

She was just kind of, whatever you say, she didn't act like she cared at all.

They're probably tired at this point too.

Like I got to go through that again.

Did you find that any of your impeachments kind of landed differently than, or crosses landed

differently than the first time?

Like, especially with the officers who are like the more trained witnesses.

I think this time I focused and limited what I impeached and what I pointed out.

Um, it's just very, the real big ones and left all the little ones alone.

How was, how was your client feeling in the second trial?

He feels pretty confident, but still worried.

Why is he more confident?

Because the jury?

Because he saw what happened last time.

Yeah.

And, and felt like it was really close.

Okay.

Does any, did, does anything come out in the second jury that like you didn't expect or

that was bad for you?

No, it was more like there was less in the second trial.

The prosecutor put on less witnesses.

Um, she didn't put on, um, the girl with the alcohol or the friend.

They're just honing in.

Yeah.

And is your theory still the same that just look at the videos?

It's not on the video.

It's a little different with the video.

What I did in the second trial is I took the, the detective who first investigated that

case and decided insufficient evidence.

And I played him the surveillance video and I said, okay, officer, um, stop me when you

see the sexual assault happening and just played it in real time.

And he stopped me once and said, well, it could be happening anytime.

We can't really see.

I was like, no, no, no.

Tell me when you think it might be happening right now.

It might be happening right now.

Just tell me.

Kept playing, played the entire video.

He couldn't stop me again.

I mean, yeah, that's brilliant.

Cause the word might, you're like, okay, even by your standard, tell me when it might be

happening.

And I thought that was so, uh, impactful.

Yeah.

So anything else in trial that was like no notably different or the first complaining

witness, I think she, um, really exaggerated some things more and downplayed others.

And I was able to use the trial transcript from the first one to, um, really make her look

like more of a liar.

Yeah.

How often did you use the transcript from the first trial and the second trial?

Honestly, all I had to do was say, didn't you say?

And have it in front of me and everybody would agree with me.

Yeah.

No one's fighting on that.

They already, they were there.

They've seen you once before.

I said, Oh, not this again.

We know it's coming.

I also had different defense witnesses.

Oh, okay.

So who'd you bring the second time?

The second time I had, um, the tattoo artist that was there during the 2020 incident.

He was working there, but he wasn't there there.

Okay.

What was his purpose?

His purpose was to talk about the tattoo that had missing ink, that the reason, the only

reason why that would occur is if you didn't take care of your tattoo and that it had nothing

to do with, um, the way it was done or anything like that.

Or intentional subliminal messaging.

The prosecutor tried to get him to say that some people's skin doesn't accept ink and he

was adamant not, it doesn't look like that when that happens.

Also, what would that have to do with anything?

Yeah.

Right.

Because the, the argument is that he intentionally didn't put ink there to like hold the unfinished

tattoo over her head.

I know.

It was like her cross-examination was like, uh, showing everybody that she didn't really

think that was true either.

Yeah.

Even the prosecutor was like, I don't know.

Like, isn't it possibly true that, um, and then who else did you have?

I had the girl that got the tattoo from him that her mom testified the first time.

She said it was all good and nothing creepy happened.

Yes.

And then I had the same guy who was there during the second incident who said that he

didn't remember anything.

Did the prosecutor get any good jabs in during the cross of those two people?

Not at all.

Not at all.

Jabless.

Jab free.

Um, and then close.

How, how did the close go?

This time during close, I knew what her, her rebuttal argument was and I rebutted it.

It's mine.

Nice.

Pays the hang of jury.

Yeah.

So I got up there and I said, the prosecutor is going to try and get you to believe that

this girl would not make something like this up.

But we don't have to guess whether she would, we know she did because the things that she

said happened didn't happen.

Yeah.

You can see that from the video.

Yeah.

This thing that she said didn't happen.

This thing she said didn't happen.

This thing she said didn't happen.

This thing she said didn't happen.

I just pointed out all the different things that they know she's lying about.

And then what was the prosecutor's clothes like similar to her first one?

She was angry.

And yeah, you took the wind out of her sail.

She's pissed.

Yes.

She was yelling at the jury, telling them what they were supposed to find, what they're

supposed to believe, what they need to do.

She was just like demanding that they find him guilty.

Yeah.

Juries don't like that.

She like crawled into the box.

All right.

So then now the jury has it again for the second time.

How do you feel after this second trial?

I feel like there is no way they can come back guilty.

Okay.

So do you feel better this time than the first time?

Yes.

I felt like I closed all those loops.

There's no way.

And how's client feeling?

He's feeling confident, but also shut down, sitting by himself.

Don't talk to me.

Yeah.

Yeah.

He's exhausted.

How long was the jury out this time?

Were there any questions?

No.

Just a little over an hour.

Wow.

An hour?

Okay.

So you're chilling, waiting, and you get a call in an hour.

Yeah.

So you probably assume it's a question.

Actually, I got a text that said verdict.

Those texts.

Oh, my God.

I always say the worst feeling, like, the worst part of the whole trial is knowing you

have a verdict until you hear the verdict.

Like, that window of time is the worst.

Yeah, that'll take 20 years off your life.

Because, like, all the possibilities are now, like, over.

I feel like I'm in a bomb right now.

I'm, like, in my living room.

When you get that verdict, and it's only been, what, you said an hour or so, what do you think

about that?

Well, my client looks at me and asks me, what does this mean that it took them this long?

And I was like, I'm not going to answer that.

You're like, no comment.

But in my head, I'm like, it's got to be good.

So you think it's good.

So you go in there, the jury files in, like, tell us about that moment.

We go in there, and you hear the jury laughing in the jury room.

And I'm like, not guilty.

Oh, that's a great sign.

Nice.

Yeah, that's a great sign.

And then they walk in, and the guy's holding the verdict for him.

And I knew the guilty one was on the last page.

And you could see it wasn't the last page.

And my client, like, whispers to me, that's not the last page.

You told him about the last page trick.

He's a vet.

Are you trying to see if they're making eye contact with you guys?

I always try to do that.

I shouldn't.

I do.

Yeah.

They weren't.

They weren't.

OK.

Yeah, they weren't.

Tell us about the moment when you get the verdict.

They read it out.

And I, like, knew it was not guilty.

It was like, I knew that's what they were going to say because of the laughing.

And he's just sitting there, like, just holding his breath.

He can't talk.

He can't talk.

He's just holding his breath.

He's got the look of relief on his face.

You can see him visibly shake off of him.

But he's just holding his breath until the jury leaves.

The whole time, even after the verdict, he didn't breathe?

I mean, he was breathing, but, like, in this holding breath type way.

Yeah.

Did he say anything to you?

Then he looks at me after the jury was on.

He's like, they said not guilty, right?

Aw.

You say anything else?

Then we start, like, walking out of the courtroom.

And he's looking at me.

And I was like, call your wife.

And so he's, like, on the elevator calling her.

And the call drops.

And he didn't get to tell her.

And he's, like, flipping out.

Like, she's going to be upset.

She's going to be upset.

So he finally gets down.

He gets her on the phone.

And they're just crying and laughing and smiling.

And they're so happy.

Aw.

So for you, are you kind of like, okay, yay.

But also now we have, like, these more cases to do.

Not that day.

Not that day.

Okay.

You let yourself have the moment.

And actually, we were outside just talking, and one of the jurors comes out and wants to talk

to us.

Okay.

What did the juror say?

He had just gotten an earful from the investigator for the prosecutor.

Wait, what?

Yeah.

They approached him?

And said what?

When the jury is released from the courtroom and the attorneys are all still inside, the

prosecutor sends their investigator out in the hallway to get them to talk to him.

Oh.

Okay.

And what did the juror tell you?

Yeah.

They convinced me that we were wrong, that he had all of these other allegations that

we didn't hear about, and that he's just a bad guy.

And I was like, you want to hear the whole story?

Yeah.

Yeah.

What did you tell him?

It's so unethical.

Well, I told him all of the different things that they didn't get to hear, and the fact

that, you know, I found out these girls are connected, and they're lying about it, and

all of these different things.

Did you talk to the other jurors?

No, they were all gone.

Then he asked me for my phone number because he wanted to hire me for his case.

The juror?

Wait, the juror?

Oh my God, yes.

The ultimate compliment.

Great advertising.

I know.

Okay, so then how long after that do you find out that the other cases are dismissed?

It's probably like a couple weeks later, we get an email from the court that said, hey,

what are you going to do with this case?

And she doesn't respond, but then a couple weeks later after that, she just files a dismissal.

What about the misdemeanors?

They're still pending.

And then you're on those misdemeanors?

Mm-hmm.

Okay.

All right.

We'll see you back here on those.

To be continued, how's the client doing now?

You said he now owns the tattoo shop, and he's doing well?

He actually called me yesterday to tell me I need to get down there to get my tattoo.

Okay, yeah, you do.

He's doing really well.

He is so happy.

It feels like he's able to live his life again.

Awesome.

It feels like it was on pause for years.

Yeah, I can't imagine how stressful that was.

I mean, just like allegation after allegation.

So that's good that he got his day.

All right, so thank you for sharing your story with us, Kristen.

We appreciate it.

And at the end of each episode, we ask our guests what we call the ultimate question.

So why did you want to become a defense attorney?

Originally, I would have told you that I want to help people through their darkest days, that I felt like that was my role in life.

But now I will say that I like to fight for justice, and it feels like this is the only real way to do it.

Yeah, how so?

It seems like the system is oppressive on your normal, everyday people.

And the only way that we can fight against it is to take these things to trial and to push and to not let their version of events become reality.

To not let this story become the end of somebody's life, but to continue to fight until you can show the weirdness and the craziness of the things that go on.

And Kristen, how did you find out about this podcast?

I have this tradition of when I went on jury trial, going on social media and putting the words, Another Not Guilty.

And one time I searched for an image called Another Not Guilty and found this great one and learned it was a podcast and then listened to all of it.

Here we are, and we're real.

Thank you so much for telling us, sharing your story with us.

It was great to hear.

It was long and winding and had a happy ending, so we're happy for you and your client.

Thank you so much.

It was Another Not Guilty.

Thank you, Kristen.

Thank you all.

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.

We'll be right back.