Murder-ring The Prosecution's Theory – When a Teen Faces Murder and Walks Free

What's up my A and Gers? We're back from a brief summer break with an episode for you this week

featuring Hunter Parnell from the Public Defenseless podcast as our co-host and starring

a Salt Lake City public defender Hillary, our guest. It's a dope episode. Check it out. And

then head on over to social media and express yourself about it while tagging us. Yeah, I love

that. I love hearing from you. I appreciate all the messages and comments about the podcast.

It's very uplifting and keeps me going. And if you want to make me happy on social media,

then please subscribe to us wherever you get our podcasts. Leave a rating and comment. That

would be super awesome. Speaking of awesome, at this time, I'd like to thank and acknowledge

Benjamin Kazi, Thomas Carr, Stephen Engel, and Juanita Kyle, our newest members to the A and G

Patreon program. Thank you all for your contributions and helping us pay some bills. If you too would

like to be part of the A and G Patreon program, then visit our website at anothernotguiltypod.com

and click on the Patreon link. Speaking of visiting the website, we are looking for more guests,

more stories. We want to hear them all and share them all. So if you have a not guilty or any type

of trial story you want to share, then let us know. We want to hear from you. Your story matters.

So if you'd like to be a guest on the show, then please visit our website at another not guilty pod

dot com. And lastly, I have a fantastic team of individuals helping me to produce this podcast,

but we can always use a little more help. Specifically, I'm looking for a few more editors

and perhaps some social media gurus. If you're interested in joining our team, then reach out

to me, message me. And with that said, without further ado, here's this week's episode of another

not guilty. Even though he's found not guilty, he doesn't get to just walk out of the

courthouse. So they have to take him back to the jail, you know, process him out. They have to give

him all new clothes because he's literally grown a foot and a half since he's been in jail. So on the

way out of the courthouse, you know, I meet with his family. We're all hugging and crying and

celebrating. And then when I get home, I get a phone call from my client as soon as he got released

from jail. And he is just screaming into the night, I fucking love you, Hillary.

He was just so excited.

Welcome to another not guilty. I'm David Moore here, along with my fellow public defenders,

presenting to you the untold stories of the criminal justice system.

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

the American criminal system. These stories are about the not guilty as public defenders get on a

daily basis. In an unjust criminal system. With the deck stacked against us.

Another not guilty.

Here we go. We are recording. And welcome back, everybody, to another not guilty. Favorite host

in the trenches of the criminal system. Your boy, Davey D here. He's presenting you the craziest,

biggest stories of injustice that us public defenders fight on a daily basis, showing you

that we're in the trenches, making it happen, trying to do our best, putting a dent into the

wheel of the machine. Should I? How about the machine, huh? Rage against the machine. That's

what us public defenders do on a daily basis. We rage. Today's going to be a great show, though. I'm

really excited. We have an awesome host. That's me. We also have an awesome guest from Salt Lake City.

She's a badass public defender. I'm going to introduce her shortly. But first, guys, we have a special

co-host today. We do. Is it just one of David's buddies from the public defender's office that he's known

for a decade that he thinks is cool? Is it just another person that David's trying to, like, get in good

with? You know, is it just that he thinks he'll just advance his career? Is it? No, it's not. It's

another badass, not quite public defender, but he's on his way. He's on the badass human being who's

there. He's to fight for us. He's also a guy who exists in the podcast land. He's tearing up. He's

making waves in the public defense community. He's out there hemming and hawing. He's out there rubbing

elbows with all the bigwigs. Guys, we have Hunter Parnell from the podcast Public Defense List today

here co-hosting Another Not Guilty. Hunter, how are you doing today? I'm doing fantastic. Actually,

just before this, I was recording another episode with some public defenders out in Oregon. Super

excited to be here. For those that don't know anything about me or the show, I'm working over in

the Aurora Municipal Public Defender Office as an intern headed to law school at Colorado University here

in the fall. Started the podcast about a year and a half ago with the goal of just kind of showcasing

all of the terrible, terrible things that public defenders have to deal with on a daily basis. As I say

in the show, discovering the rot in the criminal legal system. And, you know, I've been very fortunate to

meet awesome people like you two to just talk about the ways in which public defenders and the

communities they served are abused by the criminal legal system every day. So really excited for this.

And, you know, I have just as much as every listener, when you're listening to it, I have no idea where the

story is going. So I am extremely excited to organically react in real time with you about,

you know, another not guilty.

Glad you could be here. And yeah, you know, another not guilty world. If you haven't heard of it,

there's this dope podcast called Public Defense List by Hunter Parnell. He talks about the rot in the

system, the public of what public defenders face on a daily basis, the systemic issues, the bureaucracy,

all the red tape, all that jazz, so to speak. So it's very interesting take, very smart, intelligent.

And I'm glad to have Hunter here. But let's go ahead and move on to our guest today. Our guest

badass public defender. We have Hillary King all the way from Salt Lake City. Hillary, how are you doing

today? I'm doing great. Excited to be here. Right on. And what's the exact name of the public

defender organization up there? So we're called the Salt Lake Legal Defender Association.

And is that, so that's just in the city of Salt Lake then? Yeah. So Utah is kind of libertarian,

so to speak. And they have decided that public defenders should be funded through each county.

And so each county decides how they're going to handle it. And my county being the largest,

we have an office of about 100 lawyers. Well, that's a good size. That's a good size. Okay,

Hillary, you've reached out to me. You said you did this jury trial. You had an innocent client that

you're able to preserve his freedom. So tell us about this case. What was your client charged with?

Yeah. So my client was charged with one count of murder, first degree murder. And then he was

charged with an additional six counts of discharge of a firearm for each additional bullet that was

fired. Charged with murder. What did he allegedly do? Yeah, you got to keep up because the prosecution's

story is not exactly the reality of what happened here. So their theory of the case that was that my

client was running around with an older gang member, a person that he had never hung out with before,

that he was riding in the backseat of a car and did a drive-by shooting. That obviously killed a

person. Is your client a gang member, are they saying? He is not. They cannot find any documented gang

ties. No tattoos. No of the usual shit that they would throw at a wall. Nothing. Just gang member.

Well, we'll get to this, but he was 16 years old. Yeah. No gang affiliations at all.

So he's driving in the backseat of a car and he shoots somebody?

Yeah. So their theory of the case is that it was a shooting at a house. So there weren't any

people outside. A stray bullet went through a window and really tragic. It struck a woman in

the back of the head and she died. And is there a reason why, or does the, at least the initial

police report opine as to like why the shooting happened or why this house was chosen as the house

to shoot at or anything more about that? So it's interesting because, you know, my view of the motive,

it points to somebody else. But, um, I guess to be as neutral about it as possible, um, the, the motive

was over a stolen French bulldog. So the driver of the car, one of his, it's funny to say his gang,

a fellow gang member, his best friend, his, his gang bestie, his French bulldog was stolen from him.

And the person who stole it was the nephew of the lady who got killed. That is their motive that my

client who knows nothing about this dog knows nothing about this, you know, drama pulls up and start

shooting. The driver is a gang member. Yes. His best friend's bulldog was stolen by. And the bulldog is

very likely a gang member as well. Correct. Like the, the bulldog is covered in, in gang tats. Yeah.

Okay. And he had a moniker. Um, um, but the, the person who stole the dog was a rival gang member.

And was the gang bestie in the car also? No, he was not. Okay. Okay. Who's in the car? Just the two

of them in the car is obviously the, the driver who's kind of at the center of this. The front seat

passenger is my client's cousin. Um, backseat behind the driver is my client. And then backseat

behind the passenger is a mutual friend of my client and his cousin. So there's four occupants.

Correct. Yep. Okay. Okay. Um, so it's your client, your client's cousin who's in the front passenger,

and then just a friend of the, of your client and the cousin. Right. Are those two, are those other

two people allegedly gang members? They are, uh, not it's relevant to bring up, um, my client, my

client's cousin and the friend, they are, um, Sudanese refugees and the gangs that are involved are

Latin American gangs. All right. So that's what the, that's what the report reads. Your client shot

out of a car and hit a lady in the house. The, the person in the house, her nephew stole allegedly

stole the French bulldog of the driver's best friend. Yes. Okay. Okay. You get the case. You see the

charges, you see their police report. And what happens next is you go meet the client, right?

That's pretty much what happens. Would you agree or no? Yeah. Well, why don't you tell us what

happened next? Yeah. So this case, um, it's a little bit unique because it was originally handled

by someone who left our office. Um, so those initial meetings with the client, you know, when they're in

juvenile detention, I was not present for that. I met the client, um, probably about two and a half

years into litigation. Let me ask this question. Can you talk about just the state of the evidence

then? So, uh, how, how do, how did your client get caught? How do we know, how does the police know

he was in a car? What, what, how did, how do they connect the dots here? Was he arrested the day of

the next week? What's tell us about that? No. So they, they attempted to do some police work on this

case. So obviously, um, you know, they, they interview all the witnesses at the house. Um, and one of

those witnesses is the nephew and the nephew doesn't really want to say anything, you know, code of

silence doesn't want to be a snitch, but he does sort of let it slip. If the person who did it was in

a black Mercedes, you, you know, who did it. He just drops that little hint. So then the police start,

um, pulling doorbell footage. They find a black Mercedes who circling the neighborhood. They get a

plate. They figure out who the car is registered to. And they obviously start with that person.

The driver. That is the driver. And so they, what, they go arrest him or interview him. They interview

him and then bring him to the station. Yeah. They, they interview him. Um, and I, I actually don't

think they arrested him. I would have to go back and look, but they interview him and he puts the blame

on my client. He says, dude in the back seat is who pulled the trigger. What's odd is they're actually

questioning driver about this kidnapping and torture that he's been involved in. They ask very few

questions about the murder and they, they do arrest him for the kidnapping. At that point, they don't charge

him with the murder or arrest him for murder. But, you know, based on what he told them, they enter,

they get my client's name. And was the driver also a juvenile as well? He was not, he was, uh, 21 or 22.

Okay. And hit in his connection. Cause I, you know, the question everyone always has is, you know,

how does my client end up in the car with this guy? This guy, you know, sold weed at the high school,

the driver. That's kind of the connection was during that first interview was the driver

with counsel or was he just riffing? He was just riffing. Yeah. Classic good. Always good. Always a

good idea. Yeah. Just start ripping facing murder on one hand, kidnapping the other bucket. I don't

need an attorney. I got this. I sell weed at the high school. Yeah. And, um, they, they actually

followed Miranda and now that is shocking. That is the shocking part of it. Gave them food and water,

got them in and out of there in two hours. Like it was, it was pretty good. Did he, did he say that?

Did he know he, that your client was going to shoot the gun? What did it happen? Just happened?

Yeah. He acquired all of a sudden or right. He claims that he had no idea my client was going to

do it. He claims that he was driving in the neighborhood looking for the dog. And my client just

pulled a gun out and started shooting out of nowhere. With no connection to anything. Right.

The people in the house, uh, there's nothing about the dog. This is right. Okay. So that's what the

driver says. He's only arrested for a kidnap torture. I mean, they got him on that, so they

don't need to press him yet. Exactly. Um, okay. Okay. So what other type of evidence did they have

against your client or with the case? So they interview, I call them the boys because you know,

they're teenagers. So they interview the other boys in the car. Um, they use some kind of tricky

interview techniques of saying, you know, the guy in the backseat, they say, well, we know the,

the gun was fired from the backseat. So was it you or was it him? Obviously it was him. It wasn't me.

It's coercive. Right. And they use the same tactic with his cousin and his cousin's interview is

one of the saddest things I've ever seen because he is crying for his mother. He clearly doesn't want

to be there. He's clearly scared of somebody. And he makes mention of, you know, I don't want to talk

because my family might get killed over something I say. And then, you know, they press him and he

eventually says, it's my client. Beyond, you know, finger pointing, there's not a lot of evidence

that points one way or another. Um, obviously they're shell casings, but that doesn't tell you much,

but they did pull doorbell footage of the car circling the, the block, I believe two times.

And there is an angle on the footage where a cop presents the opinion that my client's window is

down. Um, like there's a voiceover or audio of a cop in the ring video. No, he just, he just writes a

nice, neat little report that says, I looked at this video. In my training and experience, I know what a

window down looks like. And let me tell you, it's right there. Yeah. And these are really dark tinted

windows. And as someone who has seen the video many times, I couldn't tell you if the window's down.

So then they go and arrest your client, I guess, at this point? Yes. So my client, um, he was actually

doing job core because he, um, got kicked out of school for attendance. That's the extent of the

trouble he had been in up until this point. So they had him in job core. He was living there.

They get him out of bed at three in the morning and haul him into the station.

So they go arrest your client, 60, 16 years old, take him down to the station. And what happens?

Yeah. So interestingly, they, they did not do proper Miranda for my client. Um, because as a juvenile,

he asked for his parents and they just kept plowing through with their questioning. So ultimately,

you know, most of his statements were suppressed, but I mean, I do not care to share. His testimony was,

you know, I didn't know what the driver was going to do. And he just pulled out a gun and started

shooting. I thought we were there to look for a dog.

I was just high, you know, not even, well, yeah, I was, I was just, I bought some shitty weed from

this guy. We're looking for this dog. I don't even know if the dog's real and he starts blasting.

Well, I mean, if, if an older guy pulls up in a Mercedes, it's a hot summer's day. You're hanging

out with your buddies. I mean, me at 16, I would have gotten in the car. Yeah. Especially if they

said, we're going to go, well, I'm trying to find my dog. I'm like, yeah, I'll go find it.

Well, yeah. And they made some other stops. Like they went to a Mercedes dealership and we've got

surveillance video of them at the dealership, like looking at some cars. They went to a taco

stand. They made another stop. They they're on the way to a dog groomer to pick up another French

bulldog. The driver says, well, we're just going to stop by and see, you know, if my buddy's dog is

here. And, uh, like how many days after this did the, did your client get arrested or give the

statement? Um, I think about 30, 30. Oh, yeah. Okay. Yeah. It took him a while to get all the

doorbell stuff, find the car that everyone's talking about, track down the driver.

I'm just curious, right? I know a prosecutor looks at a case, decides if this should go to trial or not.

Obviously this does go to trial. How does I get cops? They just get a, they get a whiff and they're

like, yeah, this is our guy. We're going to stick to it. How does something, as you explained it,

you have a driver who says one thing, is it just a simple, well, two of them said this and one of

them said that. So we're going with what you said. Yeah. I mean, I, I think they were just going with

their witnesses at first and because the physical evidence is so neutral, doesn't really point to

anyone that that's what they went with. Okay. So then your client, you get, your client gets

arrested. They have a shell casings in the street, I guess, scattered in the street, right? Uh, from

the bullets, uh, they have ring video. They have statements from all, from three individuals in the

car saying it was your client who shot, uh, you have a police officer who says that it looks like

the back window where your client is, is the one that's down. So that's the likely shooter.

Okay. So this is the case you're presented with, right? Yeah. Okay. And the, and the preliminary

hearing had happened at that point. It's on appeal for what issue? Well, appeal about. So, so backing up.

So what was presented at the prelim, um, is not what I just told you. So at the prelim, um, right,

they had to get those nice, neat little witness statements for their case. So they printed up the

type statement to the other two boys in the car and they recanted. Oh, okay. Yeah. One crossed out

the part that, you know, identified my client as the shooter. And on the back he wrote client had

nothing to do with it. Which one? The cousin or the friend? The friend. The friend, the guy in the

backseat passenger side. Yeah. And at this point, the, the cousin, um, he started going down a pretty

negative path and was on the run with some warrants. So he wasn't showing up to sign any witness

statements. So then how does that affect the prelim? Well, the standard at prelim is so meaningless.

It doesn't affect the prelim. The case gets bound over for trial based on the cop getting up there and

saying, I thought this window is down. It appeared to be down. Now, what about the statement from the

driver? Well, so at this point he's a co-defendant. So his statements don't come in. Okay. So they're

saying he, so they're saying he is a co-defendant. He was part of the, uh, conspiracy or aiding and

bedding and drove him around. Okay. So he was a driver and he knew about it. Okay. Yeah. Um,

I, I forgot to mention, they did some social media recon, but that's all the driver. So the driver

was making threats to the nephew. So the person they believe stole the dog saying, you know,

we're going to light your shit up. We're going to put your house on the news and had some pretty

problematic tweets, uh, within like 35 minutes of the shooting happen, happen. And these are all,

he's, and he's addressing the nephew that stole the dog. He's saying at the number, we're going to do

this to you. We're going to do that to you. Right. Yeah. And he's saying on Facebook, like,

you know, you've got a price on your head and like tagging them in the posts.

These are the kinds of stories that really just highlight to me that you can send two people to

law school, a judge and a prosecutor. They can look at all of this and go like, yeah,

that's enough. This is good. Works for me. No problem.

Yeah. What's interesting. Um, our judge really showed us some love on this case because

the, I mean, the standard, again, the standard at prelim is so low in our state. The case law is so

bad. It gets bound over, but the defense files a motion in limine to preclude the state from calling

the boys as witnesses, because the only purpose in calling them would be to impeach them and get

their unsworn hearsay statements in. Because if they were called to testify, they would say,

my client had nothing to do with it. So the only way they can get direct evidence of my client

is put them on the stand and then impeach them with their coercive police interrogations. So we filed

a motion in limine to preclude that because it's actually, well, until our case, it was an unsettled

area of Utah law. Okay. So this is what the appeal is about? Well, the, the judge ruled in our favor.

The judge said, yeah, you can't call a witness and impeach them with unsworn statements and use that as,

as, um, substantive evidence. Okay. All right. So I'm sorry. Let me just make sure I'm a, we're on the

same page here. Okay. So we're not, there's no appeal with the prelim. There's no, right. There's

nothing. Okay. So the, the prelim happened, client was held the answer and you know, uh, I kind of want

to touch upon, Oh, well, maybe we'll come back to that. But so then now your colleague is getting ready

for trial. Right. Right. And she, he or she, she, right. Files a motion. She files a motion to prevent

this, the government from using the kids unsworn statements as impeachment. Cause presumably when

the kids get up to testify at trial, they're going to say your client had nothing to do with it. And

then a prosecutor would be like, well, you told this police officer he did, or, you know, that's normally

how it would go. And, but in Utah, you can only impeach with sworn statements or signed declarations

or something like that. Right. Well, well, so the, the unique feature I would say, or where the, um,

judge hung his hat is in Utah. Impeachment is treated as substantive direct evidence.

Cause here in California, we're so progressive and we're, we kind of set the tone for the rest of the

information that we don't even need stuff to be sworn statements or sworn declarations or signed

this. We just, they just put up the cop and the cop says, well, I interviewed him and this is what

he said. Oh, here's a vid, you know, and that's it. Maybe there's audio, maybe there's video, maybe he

forgot to turn on his body wearing video, but all you have to do is just the cop has to say, yeah,

I interviewed him and he said he did it. So they don't even need nothing signed.

Okay. Yeah. That's, that's pretty different. Well, cops don't lie. So that makes perfect

And at the preliminary hearing, when they do that bullshit preliminary hearing, they just put up the

cop and the cop says, yeah, I interviewed this dude and this is what he said. Nothing has to be

signed. They don't have to bring in any sworn this typed up declaration that it's just, so that's

California, but we're ahead of the game here. Okay. I'll count my blessings. And we're, we're ahead

of the game in terms of trampling people's rights. And, uh, we suggest that the rest of the nation

follow. Okay. When you have progressive cops and progressive prosecutors, you can just progress

right past due process. You're fine. Okay. Okay. So you guys actually have to have signed stuff.

Okay. Well, go ahead, Hillary. Well, there, there was an argument to be made that it needed to be

a sworn statement. It needed to be a statement under oath because it's going to be used as

substantive evidence. Right. And yeah. So anyways, I ruined that, or I shouldn't say I, my colleague

and my client, uh, ruined that for the rest of us. And what happened? Why, what happened? So the judge

ruled in our favor and said, yeah, state, you cannot call these witnesses just to get, just to

bootstrap their unsworn statement to cops. And because, you know, anyone can have any motive in the

world to say anything to a police officer. That was the logic. The state appealed that ruling

because they have nothing without that evidence. And is that based off case law or actual statutes?

Just our rules of evidence are a little bit different. They're more, they're more restrictive

than the federal rules. So the, so the government, so the state appeals saying, uh, uh, appellate court,

Utah Supreme court, please change the law. It's going to result in us not being able to prove a case

and win. And we all know the government likes to win and you're part of the government. So help your

boys down here in the trial courts win. Correct. And the court or the Supreme court sat with the appeal

for about a year and a half before ultimately ruling that yes, this is proper. You can call these witnesses

to impeach them, but the silver lining is a conviction cannot be sustained on uncorroborated hearsay

evidence. So they can use the unsworn statements that what they initially told the police officer, but that

alone is not enough for conviction. So the cop, so they have to like bring in, which they kind of do.

They have the video, right? They have some, some shell casings maybe.

Yeah. I mean, that's how the case ultimately survives directed verdict, but it's kind of given you some

argument for, you know, if this comes up again at prelim or if this comes up in a directed verdict scenario.

Yeah.

Was there splitting the baby on that, uh, kind of just, do you think their way of preserving like,

hey, if we start upending too much, then we don't want to rock. Like what, what was their kind of

reasoning behind that?

Well, I think it was acknowledging that, um, Utah's hearsay rules are different in that. Yeah.

Any old run of the mill hearsay said to anybody on any given day is used as substantive evidence at

trial and not merely like a credibility, you know, hit against a witness. We don't give them any sort of

special instructions about impeachment. So I think they were acknowledging that, yeah, we recognize that

many hearsay statements are weak and don't have any sort of reliability to them. So if that's all you

got, and you don't have any corroboration, you shouldn't be sustaining convictions.

You know, that ruling came out while you had the case, but you, how long were you on the case for?

Can you tell us like, like what it was when you, when you met the client and what that was like

and what you talked about?

I've never had a client like this. Um, you know, I, I've been doing this about seven years now and,

you know, maybe it was his age. Um, but he just trusted me every step of the way. Um, you know,

I would come and say, okay, so there's no ruling. We're going to have to delay your case another,

you know, three to six months. And he just had like such a great attitude. I, for someone who had

to grow up in jail, I've just never seen such a positive person. He was never angry. He was never,

you know, guilt. You know how some clients are, you're my only hope. You got to get me out of here.

He never did any of that. And he had really great family support and his brother saw him in jail,

you know, at least once a month, his mom was getting out there as much as she could.

He's a good kid. And half the time when we were there, we were talking about,

you know, what books are you reading? What, what are you watching on TV? What are you doing to keep

busy? Not really discussing the case. Cause he knew the case, the case was good. You know,

there wasn't really much to discuss. Good in what way? Like, despite what the Supreme Court was going

to say, these witnesses at the end of the day, we're going to come into court and say, I, you know,

he had nothing to do with it. Okay. And they had a reason why. Let me ask you this. So you, when you

got the case though, did, was everything already worked up on it? Or was there anything else that

needed to be done? Or can you talk about some of the work that was done by your colleague

in terms of defense preparation?

My office has an investigation department. So we're pretty lucky in that regard. Our investigator

spoke to the cousin's mother and she basically told us that, you know, he is saying that he accused our

client because he is scared of the driver and scared of what the driver can do to him. He doesn't want

to come to court. And she was not really giving us any hints about where he was. Eventually the state's

investigator found him, interviewed him. He, he tells them essentially that same thing, right? I am scared

of the driver. That's why I blame my cousin. I don't want anything to do with this. And the state's

investigator, you know, didn't make a report to that effect, but that was communicated to us verbally.

Our investigator also interviewed the friend, similarly got us a recantation. It was a little

more solid. And he also, you know, he has less to gain or lose because he's just a friend. He's not

related. So we shared his contact information with the state. The state did a recorded interview with

him. And when asking, you know, why, why are you pointing the finger at driver now? Or why did you

point the finger at client back then? He said the most beautiful statement I've ever heard. And that's,

if he would shoot somebody over a dog, what does he have for me?

If the driver would shoot someone over a dog.

Correct. And why, and why these boys are comfortable saying this now is because driver

is now locked up for kidnapping and torturing some other person.

Both of them told this to the prosecution and the investigator on some level, right?

Yeah.

Something like to that effect. Okay.

Yes. While the appeal was pending, because we knew one way or another, we were going to have

another trial on our hands. So they were, you know, doing investigation while that was going on.

And they're just hinging now on this cop who went, yeah, window is down.

Yes. Correct.

Dope.

Really solid.

To me, what is frightening about this case is you kind of receive the case. It's already had a history.

It's already had a life to it. It just comes back on a pill and you're taking this case and kind

of just going to trial with it. Right. And then evidence, it's such a serious case. These guys

looking at spending 15 years of life and they don't get out at 15 years, you know,

and so he's young band and it doesn't really sound like there's a lot of workup to it or a lot of

evidence, just a couple of statements. There's a video, there's some, some shell casings and the

window. That's really it. And that's really it, you know, like, and you're just going to take it

and go. I mean, sounds like just, you're just being handed this trial and you're going with it.

Yeah. Like what's happening here.

It felt a little wild because it was so neatly packaged up and ready to go to trial that, you know,

I just, you know, went over my little checklist of making sure this and that had been done and it

was done. So we set a trial. Yeah. On a murder.

I mean, I have a murder case right now where I'm just kind of like, it seems like a big deal and

there's a lot. And then I'm like, no, there's not a lot to it. And then I get anxiety because

there's not a lot to it. I feel like there should be more to it and there's not.

Exactly. Yeah. My co-counsel and I, we kind of, you know, went back and forth with, man,

is it really this simple? And sometimes it is.

Yeah. So tell us about getting ready for trial.

Yeah. So on the eve of trial, my, you know, you get the trial nerves. You start thinking

about what if, what if, what if, what if, what is the jury going to say about this? What

are they going to say about that? And the biggest concern I had with the evidence was the window

evidence. And frankly, it's because, you know, the way the cops framed it, the video that they're

pointing to that shows this window is down is so unclear. You cannot tell one way or another.

And frankly, I just do not trust a jury to figure out reasonable doubt in that context. So I really

focused on watching the video from other angles in slow-mo to try and see if there is any way to show

that my client's window is not down. So I spend about three hours tapping my space bar, like my face

super close to my monitor.

Very healthy.

Yeah. It was, I would, I was eating right. I was exercising. No, I was doing none of that.

Um, and there is another angle of the, of the car coming through the neighborhood and you can see

through the windshield. So it's not, you're not looking at the driver's side of the car. You're

looking at the passenger side of the car and the angle is a little slanted. So you can see directly

through the windshield and directly through the driver's window, meaning the driver's window is

down because if it, you have, you have the context of the passenger window, it's tented. You cannot see

anything through it because it is tented. So how could you see through the driver's window unless it

were down and you could totally see the outline of the parked car in the street, like the sidewalk.

You can also see that my client's window is dark. So I think, Oh, we found it. We found

the angle that show that answers the biggest question the jury is going to have.

Wow. Wow. So how excited were you when you found that?

Oh, I, you know, my co-counsel was in the office down the hall. I like jump up from my desk and I'm

like, Mike, Mike, you have to come look at this. Come, come. Um, so we, you know, we take a bunch

of screenshots. We figure out how we're going to trick the detective into just admitting the

exhibits without opining about them. Um, but yeah, we're stoked. I mean, this is like,

yeah, well, I, I find this and I'm calm. Like it calms me down.

Well, way to go. Way to finally look at the evidence before, right before trial, Hillary.

That's the life of a public defender. That's what you're paying me for.

That's great. Okay, good. So now you really got it. You got it. I mean,

you had the witness statements before anyways, but this is the tangible evidence in case anybody

calls into question the credibility of the kids in the car. So exactly. That's great. That's great.

Um, all right. So then you take that and you roll into court the next day to, to start jury

selection, right? Yeah. So tell the A and G audience, how does Hillary do jury selection?

So jury selection in Utah is really sad. Um, uh, attorneys do not get to talk to potential jurors.

We, yep. It is the total opposite of the Colorado method. So this happened in the age of COVID.

So all our jurors were appearing remotely in like a zoom context. They filled out questionnaires ahead

of time. And, um, those questionnaires really just get at demographic information. Like,

are you married? Uh, what's your job? How many kids do you have? Do you, are you vaccinated? Do you

have any concerns about COVID? Do you feel like you can follow the law? Like it is the most useless

document ever. Um, but it does sort of let you know who the crazy people are because there were a lot of

fill in the blank, uh, answers related to COVID. Um, so that was helpful. Oh, I can imagine you saw some

shit, but generally how we do jury selection is you submit questions ahead of time to the judge and the

judge decides whether or not to ask them to the panel as a whole. They're usually more personal

questions. Like, have you ever been a victim of, you know, a shooting or have you ever witnessed a

shooting? And then we will take that person and ask them individually to like tell the details of

that story. And do the judges have to go on record explaining why or why not they ask certain

questions or is it just like, yeah, no, don't like that one. Yeah. Uh, they do have to make some

rulings. Um, cause you know, that could be an issue for appeal. If you don't ask about people's

ideas about firearms in a firearm case, that could be a problem. We got to ask, you know, does anyone

have been victim witness or defendant to any type of, um, shooting? And surprisingly, we found a woman who

was a witness to a shooting. Oh, okay. Okay. And, uh, tell us about her. Well, we loved her. So this case

involved a lot of social media, uh, evidence and it, you know, it's threats going back and forth between

these Latin American gang members and they use a lot of Spanish slang and we didn't have any cop that

was going to be able to, you know, be an expert about that. They all fancy themselves gang experts.

So we were planning on asking them questions about what certain slang meant, but, uh, this woman was

from Peru, uh, obviously speak Spanish. And I felt very comfortable having a Spanish speaker on the jury.

And also, you know, if you've witnessed a shooting, you've maybe have higher standards for

what a shooting case should look like. So you kept her on the jury.

We kept her on, frankly, I don't really remember anything significant about anyone else. We were

just trying to find people that didn't seem, you know, racist.

Right. Well, it's funny. Cause you almost have to like, because you can't talk to these jurors,

you have to kind of go off your own biases and prejudices and exclude jurors to make sure they're

not biased and prejudiced, even though you can't really talk to them to find out if, what their

real biases and prejudices are, you have to just judge them based off the cover or the book of the cover

or the cover of their book, whatever you want to call it, you know, or the, the backgrounds of

their zoom setups, because we got to see, you know, what their, what art was on their, you know,

living room wall. Um, was this, has voir dire always been like that in Utah? Is that like a

temporary thing? You know, I think it's, um, cause other counties do attorney led voir dire. It,

I think it's just my County. That's just Salt Lake oppressive. The only thing that I can think of

that makes even tangential sense is, I don't know if you guys have seen the book of Mormon,

but Johnny Cochran is a villain in that. And all I can assume is the people in Salt Lake saw the OJ

Simpson trial. And we're like, we're not fucking doing voir dire like that. Absolutely not. We're

keeping that as far away as humanly possible from Salt Lake city. It's the only thing that makes sense

because otherwise I don't, I don't understand that. Uh, anything, anything else memorable with jury

selection by the prosecutor or something a juror said or anything like that with the judge?

You know, it was over in a blink because we asked them nothing. Great. Well, very, very little trial

prep on your part. Maybe look at the evidence a little bit the night before, maybe spend a couple

of minutes picking a jury. It's an easy, easy trial stat here for you. Um, all right. So tell you got,

you picked your jury, um, and now it's time for opening statements. Tell us about opening statements.

Yeah. So, um, the prosecutors, they gave a typical prosecutor opening of, um, you know, no emotion,

just facts. And you should be, you should convict them because a woman is dead, you know, like

nothing sticks out. Um, it was a typical prosecutor opening. So when I get up to do my opening,

I sort of had this idea of what if I do a good prosecutor opening, but asking, or, you know,

dealing with the driver. Um, so, you know, I had a, a theme, that's your defense, right? Your defense is

the driver. So you're improved. The driver did it. You're putting on the prosecution hat here.

Yeah. So, so driver has the motive. Driver has the gun. Driver has a plan and driver pulled the

trigger. And I just said that throughout the opening, talked a little bit about how all the evidence is

going to point at driver. And I maybe mentioned my client's name once by saying, you know, at the end

of the day, you're going to find so-and-so not guilty. Um, but yeah, just tried to pay a lot of

lip service to the driver's name. Yeah. I wish you would have like had some sort of like rhyme for

that driver. Wait, what'd you do? Drivers, the, the, the nun had the motive, had the gun, had the

plan, pulled the trigger. We'll find a rhyme in there. Yeah. You find a case against my client. There

is none. There you go. Yeah. Well, so I should mention I'm obviously not using names, but the

driver's gang moniker was a type of gun. If you can't see through the tent, you must acquit. That's

about as close as I'm getting to, uh, to old Johnny. Oh, yeah. I, I was really pulling, pulling

deep for a rhyme, but I, I just couldn't find one. That's okay. It's okay. All right. So on to the

state's case. Tell us about that. What'd they roll out? Yeah. So, you know, they, they started with,

um, a family member who was in the room when the woman got shot. That was, that was obviously

emotional, dramatic. And so naturally we had no questions for her. Right. I mean, look, I'll be,

yeah, let's, let's just talk about, this is a sad case. There's a, uh, people are hanging out in

their, in their, in their homes, right? And the bull just goes through the window, the, the wall and

strikes. Yeah. And, and she was testifying that they were planning a baby shower for her daughter

and it truly, it's awful. It's absolutely awful, but you know, she's the best thing they have to

an eyewitness because she's in the room. So, I mean, they have to call her, but she doesn't really

move the ball forward. So no need to cross her. All right. So no questions. That's always a great

feeling in a trial. I love the no questions. Yeah. Um, okay. So, so who do they put up next?

Next witness, they put up the officer who responds to, um, the shooting scene. He separates witnesses

out. He starts to talk to some people and he talks to the nephew. Like I said earlier, nephew's pretty

dodgy, doesn't want to say anything. He mentions, you know, if, if a black Mercedes is involved, then

you know, all you need to know. And he also mentions something about the dog, not being his.

So they take a photograph of the dog and the dog actually has a collar. He's a, he's a registered

animal. Um, so they take the dog to an animal shelter so he can be placed with a foster family.

It's very beautiful story.

At least he didn't get shot or put down by a cop, but that's just, that's a better story than a lot

of dogs in criminal cases. Two witnesses here. The prosecution hasn't quite connected to your client

yet. So let's keep rolling. They next put up a couple of witnesses who were, there were a couple

folks, um, across the street because across the street is a park. They were at a soccer game.

They hear shots. They turn their head and they see a black Mercedes speed away. So they put up some,

some folks to say that, um, they do not see anything pertinent. Um, they don't see where

the shots came from. They were not looking in that direction when the shots were fired. And again,

we have very few questions for them because frankly, it, it doesn't matter.

Can this trial get any easier for you? When do you start doing some work on this thing?

Well, uh, I'll, I'll put it this way. The first day of evidence, we, we barreled through about

10 witnesses and my client's name was not mentioned once. It was beautiful so far. So good. Okay. What

happens next? Yeah. The next witness they've got, um, you know, the forensic lady who talks about

the shell casings, where the bullets entered the house, you know, she talks about how, you know,

you can't really pinpoint angles of guns and where people are when bullets are fired, but generally

casings tend to be pretty close to where a guns fired. So it's a whole, it's, it's another nothing burger

of this doesn't point one way or the other in terms of who did the shooting, but here are the

bullet holes. Here are the casings in the street. And again, we don't have a whole lot of questions

for her. There were some exhibits that we got in because we wanted to show certain angles of,

like the bullets were fired generally in a downward diagonal pattern and the shell casings did sort of

take a swerving motion in the street. So we were thinking maybe, maybe the jury might want to think

about how could someone shoot and drive at the same time? Well, if it doesn't look like they're doing a

very good job of shooting, then maybe it's because they're driving. How many bullets were there by the

way? Seven or eight. Yeah. And the casings were sort of scattered or like in a snake or something like that?

Like a swerving, a car swerving pattern maybe? Yeah. They were in like a snaking S pattern. And then the bullet

entry on the house was, you know, it started in the top left of the house. It went down diagonally towards the

bottom right. So it started high and did low. Which is why he's doing nothing successful. None of it's successful.

He can't drive straight because he's shooting. He can't drew drive. He can't shoot straight because

he's driving. So, okay. Right. And it was one of those things, like we weren't looking for any sort

of definitive expert type testimony. It was just, you know, it makes sense with our story. If you think

about it with your common sense. All right. So what happens next then? Yep. So next they get in the

witness who reviewed all the doorbell footage. And this is the guy. This is the one. This is the guy. And he

testifies about this certain piece of footage and this certain clip at this certain timestamp where he

believes the window is down and they get their exhibit in. So I just get up and I don't ask him anything

about that. And I admit my other exhibits and I just say, Oh, and this is a different angle. And this is

this many minutes before the shooting or this many seconds before the shooting. And here's this other

angle. And this is this many seconds after the shooting. And I kind of bury it a little bit. And I

admit, um, about five, uh, stills. And when you say bury it, what's the, it that you're buried? Like

the, you have like one particular still that shows the window being down. Yeah. The fact that all of

my, well, two of my like five exhibits show that the driver's window is down and I, and I don't want

to risk. I mean, again, just you are never going to get a cop to admit he's wrong.

So I'd rather just admit the exhibits, get him to authenticate that. Yes, this is surveillance

footage. He's seen this. This is the car. This is the time and just shut up about his opinion about

it because the jury that's who should have an opinion about it. Yeah. Is the cop giving the

opinion that the window is down? Does he testify into that? Well, so, so he says, uh, I mean,

they do it in the context of like what led them to interview who they interviewed. So he, he doesn't

say, you know, I looked at this picture and the window is down. He's, he's a little softer with it.

And he says, I looked at this photo. It looked like maybe that back window is down because it's less

reflective. And so that's why we thought we need to talk to who's in the backseat of the car.

Wait, what time of day or night did this shooting happen? Oh, I should have mentioned that up top,

like five 30 in the afternoon in July. So bright, broad daylight. Okay. So then what happens next in

trial? You know, the next sort of pertinent thing is the, the, the officer who handled

all the search warrants on all the phones and reviewed all the social media evidence. So this is where it

like actually gets interesting. Cause up until this point, it's like the most boring trial you've ever

seen in your life. Hilary, I'm sorry. Can you just remind us or go into more detail about all the

different social media posts and what they said? Yeah, sure. That is probably a cleaner way to handle

it. Yeah. So there was, there was a lot of social media evidence in this case and it was all centering

around the driver of the car, the, the friend of the driver. So the dog owner and the person who stole the

dog, there was a Facebook post, uh, from the dog owner who, you know, he posts a picture of his dog.

He says it's missing. And he says, and the person who stole it is going to get it. That's what the

post says. There's then some messages between the dog owner and the driver. And they talk about how they

think that the nephew has stolen the dog because somebody saw a picture of him with the dog on

Snapchat. And so they discuss discuss, they talk about quote, setting up a lick to get the dog back.

And is this like private messages on social media? Like, or is it just like an open conversation?

And where is this on Twitter? Where's this at? On Facebook?

Yeah, this is, this is on Facebook messenger. So they talk about, yeah, they talk about setting

up a lick to get the dog back. Uh, the driver says, I've got the address. And then the dog owner

asks him, he says, which we learned means, do you have a gun? Like that's a slang way to say,

do you have a gun? That's not a direct translation. Cause you know, gun is like pistola or whatever.

Right. But in the context, it's clear that they are talking about, do you have a firearm?

The dog owner asked the driver that if he has a gun, right? Yes. Okay. And the messages continue.

They talk about how they're going to get a firearm. And the prosecution had all of this.

Oh yeah. Yeah. No, it was a guy in the back. They admitted these exhibits. These are their

exhibits. Fucking clowns. Yes. Yeah. The conversation continues. They're talking about

setting the nephew up. Like we're going to do a fake drug deal and pop them. There is a Facebook

message where the driver drops a pen of the nephew's address. Like he takes a screenshot. He drops the

pen to say, I know where you're at and I'm coming. And this, and this is like at two in the afternoon

on the day of the shooting. Then the dog owner sends a Facebook message to the nephew and it says,

give me my dog back or I'm a light your shit up. Who could it be? I'm just puzzled.

Correct. Flummoxed. It's Colonel Mustard in the library. I mean, I don't, I don't know who it is.

This is such a classic case of confirmation bias where the police, the prosecutors,

they get locked on on somebody and damned if anything else is going to change their opinion.

Obviously they're not using the exact language I'm using. They're using like their 20 year old

gang slang. So I was using the, the cop to kind of explain like, you know, what does get it poppin'

mean? You know, or like, what is this TNS quit they mean? Um, but it gets better. So probably

Do you say, do you say the slang in the most like vanilla detached way? Officer, what is get it poppin'?

Like kind of like, yeah, you know, this is your Spanish. Like, so like, like white and gringo,

like tennis quite take. Well, thank God they didn't say tortilla, you know, like, yeah,

you can have been just, you can just use your imagination of what a Utah jury looks like.

It is something. The best social media evidence. I mean, it's already great. But the best thing

that I think there is, is an hour and a half after the shooting, the driver of the car makes a tweet,

and I'm not going to use what he said, because it's very disrespectful and racist. But he basically says,

people want beef, like we're not going to put their house on the news with a crying, laughing emoji.

So wait, if the driver's on trial too, during this, he's a co-defendant, right?

Well, so the driver, oh, I, wow, we missed a big piece of this. The driver pled guilty to murder.

The driver pled guilty to murder about eight months before trial. In his statement of defendant,

which the jury didn't get to hear of this, or in his statement of guilt, um, he basically says that

my client's cousin handed my client a firearm. And once the driver told my client to fire,

he pulled the trigger. So that's his statement of what happened, which is different than what

he told the police.

So he, the driver's saying he instructed the guy to pull the trigger.

Yes.

Which you may remember is not what he told the police.

Okay.

But we know that the prosecutors just don't care if everybody involved is lying.

They are pressing forward with this, like the Polar Express, baby.

Right.

Just scoop up everybody they can.

Which is also why I was comfortable doing the opening statement I did and,

you know, pointing the finger at that guy.

Okay. So that's, with this is the background that's happening. So tell us about the cross

examination of the social media cop.

Well, so during the cross, I basically, you know, got him to explain, because they're not using the

word gun. So I had to have him explain that when they're using words like pull up and are they

strapped? You know, does, they're talking about firearms because I'm worried that my vanilla,

you know, upper middle class Utah jury maybe doesn't talk about guns that way.

So I'm just getting him to explain what all these nonsense words mean.

And I get them to talk about gang colors because, you know, you can see in people's profile pictures,

they're like wearing colors. I get them to talk about like whose rivals, you know, what gangs are

their rivals, because there was already evidence about which gangs, you know, the driver and the nephew,

that had been sort of touched upon. Basically getting him to explain how all that works to, you know,

a regular everyday person who's, you know, never spoken to a person of color in their life because

they live in Salt Lake City.

By the way, any memorable moments during the trial right now that's happening?

Any sort of weird things that are side things that have happened? What's that?

So here's where it gets sort of crazy. So I obviously scored, I obviously scored a lot of

points with that cross because it was pretty damning evidence that another person had the

motive to do the shooting and was talking about how they're going to get a gun and pull up to this

dude's house. So the prosecutor tries to do some rehab and she gets up to redirect the officer, that same

officer. And she goes back to this topic of gang colors and she gets him to, you know, mention something about

red and how that's related to the bloods, which I mean, I don't, I would assume most people who listen

to this podcast are public defenders, you know, in Utah, at least like our main Latin American gangs are

like Norteño and Suareño type sets. And, you know, some are blood affiliated, but the gang that the

driver was in was actually a Crip affiliated gang. So a blue, a blue team, if you will, not a red team.

The person who stole the dog, was that a red team gang? He was on, he was on the red team. So the

prosecutor, she gets up, she, she has the officer acknowledge that, you know, bloods wear red or

whatever. And then she does this cute little move where she looks at my client's 14 year old little

brother who's sitting in the front row wearing his football hoodie that happens to be red. And then one

of his other family members had a button up shirt that had a pattern on it. And one of the colors

were red. So she's kind of creating the implication that my client is gang affiliated because his family's

gang affiliated without, you know, anything to back it up. And that happened at the very end of the day.

And I sort of lose my mind. And I'm sort of thinking, how can I calm down and address this?

And that was the close of the evidence for that day.

Now, is this the first time the prosecutor has been kind of like shady on the case or, I mean,

that's pretty, that's pretty egregious that, um, that the prosecutor would just sort of introduce that

element into the trial when your client's not even, not even a gang member. Um,

like how many, how many family members were there anyways? Like, so, or yeah, I mean, he

Sudanese culture, like it's big Christian families. So my client has like eight brothers and sisters

ranging from age 12 to 30. You know, his whole family was there, his mom, his dad, his brothers,

his sisters and a couple cousins and two people were wearing red and two people were wearing red and

they happened to be young black men. And the prosecutor is going to try to, that is so dirty.

That sort of like hint to the people that, that it's a big gang family. Yeah. And I'm honestly,

wow. So you say the whole family is a gang family and just playing up the whole racist card,

the stereotypes, all of that drama, because her case is fucking weak because she has a weak case

and she's going to go even lower and low and low because she is losing. Yeah. I don't get at losing.

I was so shocked. I, I was speechless. I was literally speechless. And how just,

just for kind of my picturing of it, how did she, did she just kind of like ask the question and then

just kind of like look at the audience? Did she kind of like, like what, what was, how did she

go about doing it? She turned her entire body, then turned her head slowly, nodded at the

audience and then turned back around and looked at the jury and said, no further questions.

She did a full van of white. Yes, man, that last name's operative there too. That's fucking crazy.

And that was the last question of the day. That was the last question of the day. And I'm like,

fuck, what do I do about this? Well, you know, cause you're supposed to,

in a jury trial, you're supposed to end on a high note, but she ended on a low note. That was pretty

low. You're supposed to end high. Come on, prosecutor. She felt high. I'm sure. I think

she felt really good about it. So I start working on the case in the middle of trial to figure out

what I'm going to do about this. No, I'm kidding. But it's about time you started working on the case.

It's about time, you know. No. So I, I start doing some, you know, some prosecutorial misconduct,

like research, like what's my remedy? How can I address this? And so we roll into the trial the next

day, 8:30 in the morning. And before we bring the jury in, I just say, judge, I want to make a record

about what happened yesterday. I explain what, what I just explained to you. I explained to the judge.

And before responding, the judge asks the prosecutor to respond. You know, does she have anything to say

about it? She denies that she did any of that. And the judge actually interrupts her and says,

no, I saw you do it. And I think that is the implication that you were trying to make.

So the judge, basically the, as soon as we brought the jury in, he gave them an instruction that the

jury is not to make any assumptions about anything anybody's wearing in the audience. They're not,

they're not to pay attention to anything anybody's wearing. And they have not heard any evidence that

my client is gang affiliated. I love that. Yeah. You, you gotta love, prosecutors are so,

so used to getting away with shit that they often are gobsmacked when like the judge is finally like,

nah, not this time, chief. It was, it was beautiful, but it was so blatant that I'm like,

I, I, I couldn't believe she denied it. I mean, I have no shame. If it were me, I would have owned it,

but she denied it. She tried to deny reality. And the, the judge was just like, no, I was there.

I was in the room when it happened. And that's what I thought you were trying to do.

Good for that judge. I mean, overall, like how has the prosecutor been in this case? Like what's

the tone been like? You know, I, I hesitate to say shady, but I, I think she just genuinely believed

my client was involved. She was victim of the confirmation bias and having the blinders on and

really thought my client had something to do with this and, you know, really would not acknowledge

any of the weaknesses of the case at all. Like she had an excuse for all of them and conducted

herself accordingly. All right. So the judge does the admonishment for the jury and it's time for a

day two or three of evidence. So what happens next?

Yeah. So it finally gets exciting because we're bringing in, uh, the boys. So initially they bring

in the, the co-defendant, the driver who has pled guilty to murder, and he refuses to come out of the

holding cell. The prosecutors don't do a damn thing about it. They don't attempt to put them on the stand.

And we, we just move on.

Uh, uh, yeah. Uh, was, was she like, who the prosecution's next witness is the driver.

Nevermind. Okay.

He gets up and goes, no, it's no, it's not. Nevermind. Scratch, scratch that.

Nevermind.

Yeah. Yeah. We had, we had to have a brief little recess to be like, okay, he's not, he's not coming out

today. He wants to go back to the prison. So it was a little awkward, but you know, not the weirdest

thing I've ever seen in a trial. So next up is my client's cousin and my client's, my client's cousin

had counsel because he had all these other pending cases and that was going to be fodder for impeachment.

So his lawyer came, he told his lawyer that he was going to refuse to, to take the oath was going to

refuse to testify at the time. This, you cannot make this shit up, but at the time they put him on the

stand, his lawyer was in the bathroom. I didn't realize this, nor did I think it was going to be

an issue because the judge knew what the witness's intent was, but the prosecutor just started asking

him questions and he started answering questions.

So wait, hold on, wait, wait. So the, the, all the jurors are all sitting there. You call the next

witness. Everybody knows this person has a lawyer and no one stopped to wait for the lawyer.

Yes. And at a certain point I turn around and I see the lawyers back in the courtroom and the lawyer

doesn't do anything. So I'm, I'm sitting back in my chair. I'm relaxing when this witness comes out

because I'm not going to have to do anything because I know he's going to, you know, refuse to testify.

And then he starts asking questions. I start scrambling and get out a notepad because I'm

going to have to cross examine him. Yeah. I, I, you said, you said, oh, I hesitate to call the

prosecutor shady. I won't, uh, I will, I will gladly, uh, call that prosecutor shady as shit. What do we,

Jesus. Oh God. Um, yeah. So he started, you're like a lawyer and you're, you're just in the

bathroom and then the, everything like the whole, your whole purpose of being there. And you just

step away to go to the bathroom. That must've been the most urgent shit in his entire life.

To just be like, Hey judge, I know he's on the stand, but I gotta, I gotta take the Browns to

the Superbowl. My bad. I'll be right back. But then, but then to walk back in and just see your

client testifying and not say any, like, I think he was just confused. Have you ever taken a so bad you

forgot why you were in court? Like just so life alteringly changes your soul, spirit, and demeanor.

You're like, what am I doing here? I don't know. Crazy. Oh, you know, me and this, this other lawyer

are actually good friends. And we laugh about this all the time.

All right. So now you're at a cross. You get to do a little, uh, little, uh, improvisation here. You

got to think on your feet as public defenders. That's what we do. Come on. Well, you know what I did?

I thought on my feet and I said, Judge, this would be a great time to go to lunch.

So I went back in the holding cell to be like, so what the fuck was that? I thought you weren't

going to testify. And he said, I thought someone was going to stop and speak up for me. So he just

kept going. And I, I should, I should clarify his testimony was basically, you know, he, he was

trying to be evasive and say, I don't remember what I told the cops. I don't remember what I told the

cops. So it just allowed the prosecutor to play his video to say, this is what he told the cops.

Um, so, I mean, that's all his direct was. It wasn't anything like shocking. Yeah. So I'm sitting

in the holding cell with him and I have his lawyer with me. And I just say, you know, if I were to ask

you who was the shooter, what happened that day, what would you say? And you know, he says, um, driver

was the shooter. My cousin had nothing to do with it. And the only reason I accused my client is because

after driver dropped off my cousin, he took the driver then took me home and he threatened me and

told me if I talked or if I accused him that, you know, I, I would be dead. And then I say,

you know, were they threatening you throughout this time? Was that the only threat you received? And he

says that the entire time the driver, like the entire time before they all got, you know, picked up and

questioned, which is about a month, um, the driver and the owner of the dog, you know, they were checking

in on him. They were giving him drugs to keep him quiet. They were having him, um, you know,

do certain gang related tasks for them to kind of have something on him. Um, and just basically doing

what they could to keep him quiet. So then I ask, I say, well, why do you feel okay to say anything

about it now? And he just says, you know, I'm facing about 10 years of federal prison time and driver is

also in prison for the murder. So I don't really feel scared. I don't feel any need, you know, to fear

for my safety. And I'm like, okay, that makes sense. So we're going to get out there and say all that.

So we put him on the stand. Uh, he's re-sworn in, uh, after lunch and, you know, I don't ask any

cross style questions. I ask open-ended direct questions, getting him to talk about everything

he told me in the holding cell. And he, you know, he says all that, that same stuff about how, um,

you know, he was scared, he was being threatened. He was threatened immediately after it happened.

And, you know, continued to be, you know, sort of in, in the crossfire, so to speak, like in the month

leading up to them being investigated. But, uh, this time when I asked him, you know, why do you feel

safe? Why do you feel okay to tell the truth now? You cannot make this shit up. He says, well, now that

driver is, you know, locked up for the kidnapping and I, behind me in the prosecutor's desk, I can hear papers

flying everywhere. And, uh, because I had no idea he was going to say that.

But yeah, he just, he let that little thing drop. Uh, so in addition to him, you know, being in prison

for murder, he's also in prison for this kidnapping. Yeah. So it went well, you know, his story for why

he's, why he had to say what he had to say at the time and why he's saying what he's saying now, I

think makes sense. And it was fine. Great. Great. So what happens next? So then they call the other,

the other boy, um, the friend and he's in custody. I love how this happens. He's in custody because

they had to get a material witness warrant for him because he is not from Utah. He was back in

whatever state he lived in. So they had to issue a warrant to try and find him. So he's in custody

for that reason. And same sort of thing. Like he's willing to testify same format of he says,

yes, I remember like, that's what I told the police. The, the prosecutor plays his video,

I guess to hit home the point that yes, that is in fact what he told the police.

So then when we get to the cross, wait, so wait, he testifies that this is what I told

the police, not necessarily that this is what happened. Right. Because he was never asked what

happened. He was only asked, what did you tell the police?

Reaffirming my shady fucking prosecutor point.

Well, if the prosecutor were to ask him what happened, he would not say what she wants him to

say. Right. This is what you told the police, which is what their evidence is based off of what you

told the police back then. I feel like I would have gone up there and probably, yeah, you just go like,

well, I know that's what you told the police, but can you tell us what happened that day?

Yeah, that's exactly the first question out of my mouth. It's just interesting how this guy,

this particular witness, there is a subsequent recorded interview where he tells them something

else, right? He tells them what's consistent with his testimony that I'm about to elicit from him.

And they don't play any of that. So I think they lose some credibility points for not addressing

that. So anyways, we get up and, you know, we ask him the whole deal, like, you know,

what happened that day? And he says, you know, my client had nothing to do with it. It was this

other guy. He doesn't really know the driver other than like, he's seen him around the high school.

He knows that there is a dog at issue because that's what they're talking about in the car.

And then we ask, you know, the the famous question of, you know, well, why would you lie back then?

Why were you scared of him? And that's when he says, well, if this guy would shoot someone over a dog,

what would he do to me? And we just end it there. Yeah. Just makes sense.

At this point in time, are you looking at the jury and are you seeing any like up downs, any nods? Or are they where are you feeling it out as you're going through these two statements from the two boys?

You know, I was so fight or flight mode at this point because, you know, they're playing interviews where they're accusing my my client of pulling the trigger.

Like I'm panicking and I probably should be focusing more on jury behavior, but I am so focused on what I'm going to say.

I'm not even looking at the jury. But, you know, throughout the whole trial, they were all really attentive and took notes.

No one looked bored and they were all really engaged the whole time.

I mean, frankly, I don't know what they were doing during this because I was having a meltdown about the fact that the guy who said he wasn't going to testify was testifying and it was a whole thing.

What did the the prosecutor try to redirect on that after he's he left it after you left it with what would he do to me if he killed the dog?

Yeah. No, he there was no redirect.

Oh, great. Great. Love it. Prosecutors getting tired, too, then she's she used up all of her dirty tricks by now.

She's just tired of scraping the bottom, tired of being a bottom feeder there.

Yeah. OK, so what happens next in trial?

Yeah. So then the state calls their last witness, you know, typically our prosecutors in this jurisdiction, they call their case manager, their their big detective last to kind of clean up loose ends and, you know, impeach or like bring in anything that their lay witnesses didn't come up with.

So they call the detective just to confirm, you know, he interviewed all these people and these are the dates he interviewed them.

And yes, those videos you played, those were my interviews, you know, mostly a whole lot of nothing.

Yeah. They do hit the the car window again.

They basically get him to say that he thought the window appeared to be down.

And that's why, you know, once the boys pointed the finger at my client, they were that's who they were zeroing in on.

So is that that's it for the prosecution's case?

That's it.

All right. Prosecution rests.

Motion to dismiss.

Denied.

Yep. Easily denied.

And then we didn't put on any witnesses.

Defense did not put anybody on.

Can we talk about that for a little bit?

So I would think that I would put up my client if I could.

He's a 16 or how old is he now?

21 at the time of trial.

He was right.

He was 20.

It was about a month before his 21st birthday.

OK.

But, you know, if he's young and doesn't really have a criminal record, why can't he get up and just say he didn't do it?

He was just there.

And, you know, well, because it just happened because we won the suppression motion.

There were some like sort of problematic things he said just trying to shift blame off himself for like he had a weird explanation for why he was in the car.

And, you know, you ask him about that and he says, well, I didn't know.

I was scared.

So there was just a lot of risk in that.

OK.

Like all of his interrogation video was out except for like the very beginning where nothing really important happens.

And we didn't we didn't want to risk that the rest of that coming in because he is like kind of I mean, he's lying about knowing the driver and the circumstances that led him to being in the car because I mean, because he knows somebody was shot.

I mean, he knows someone was shot, you know, he's trying to distance himself from that.

How are you feeling about the case at this time?

Do you feel like the state of the evidence was good, that there was enough reasonable doubt?

Yeah.

I mean, you may have proven your client's innocence at this point so that you no need to put up your client.

Yeah, I mean, I think the case had reasonable doubt from the prelim on and for the most part, the evidence came out as good as it could come out.

You know, short of us having video footage of someone else pulling the trigger.

So we were feeling pretty good about it.

All right, then.

So the defense also rests then, right?

Yep.

Easy peasy.

Time for closing arguments.

Tell us about that.

OK, so I have no notes for the prosecutor's closing there, but I will let you know there was a PowerPoint with elements.

Very important.

It build.

Good build.

Yeah.

I can respect that.

Yeah.

They had to explain why, you know, the boys were coming into court and saying something different now.

And they just kind of blamed it on, like, family ties and friendship, which is really all they could say about it.

And so they, I mean, they talked about that a lot, like, why you shouldn't believe them under oath.

I've never understood how you're supposed to get around the fact, like, you're not supposed to believe them right now.

But back then, they were trustworthy.

And at some point in time between then and now, they became the least reliable people in the world.

That doesn't make any sense.

What else are they going to say about it?

I mean, maybe go back to the, say, everybody's a gang member trick.

That might, you know, that might work.

Yeah.

I mean, there was a lot of, like, guilt by association type of implications they're trying to make.

Like, you know, he's hanging out with these people.

Well, he's getting in the car with these people.

He knows they're up to no good.

You know, that kind of thing.

And again, just trying to explain why the cousin and the friend are lying now.

And you shouldn't believe them for their reasons about why they lied then.

Even though the reasons that they put forth for lying then totally make sense.

I worried that the murderer and kidnapper was going to murder and kidnap me.

I don't know where they could have got that idea from.

That's fucking out.

That's outside of the bounds.

Let me tell you.

Oh, yeah.

That's great.

All right.

So talk about your closing argument.

Yeah.

So defense closing, you know.

Which was given by your partner.

Your partner gave the defense.

Yeah.

He made me do all the work with all the witnesses so he could just knock it out of the park.

And we joked about that.

But that's fine.

He, you know, he's been doing this for 25 years.

And, you know, me being the less experienced one, I probably would have had a heart attack if I had to do the closing in this case.

Just because I believed in my client's innocence so much.

And, I mean, the pressure is huge.

So, you know, I'm happy to cross all these witnesses, keep you straight, watch your video, find your screenshot, and hand it off to you to do your closing.

So, you know, in the closing, my partner really hit the four main points.

And he started with the messages and how all the social media evidence points to these two people coming up with a plan to shoot up this dude's house to get his dog back.

And how, on the first day of trial, you did not hear my client's name mentioned once.

It is all about driver and the owner of this dog that got stolen.

He then moves on to the casings point of it kind of being in this weird pattern.

Because, you know, he's basically saying, like, the state wants you to think that someone can't do anything else while they're driving.

Well, look at how these casings shook out.

Kind of seems like someone is trying to do two things at once.

And then, you know, that not being the biggest point of the day, we move on from that.

Have you ever tried to eat tacos?

Have you ever tried to eat tacos while driving?

It just doesn't work.

The shell goes everywhere.

Same exact situation.

It's the same thing.

Yeah, no one's ever sideswiped a car from looking at their phone, ever.

Yeah.

Especially not anybody on the call right now.

No, I would have never done that.

Yeah, and then, you know, he focused a lot of his time on the recantations and, like, why their story or, you know, why what the boys are saying in court just makes sense.

He talks about how scary the driver is.

He is, you know, when you're 16 years old, a 20-year-old dude seems a lot older than you are and how, you know, that's coercive and you're scared of that person.

You also, like, that's who you're getting weed from.

You know, you're not in the business of snitching.

Can't lose the hookup.

Yeah, exactly.

Can't lose the plug.

So he's just kind of explaining, like, why it makes sense and, you know, hits home the fact that now that that guy is locked up, nobody's scared to tell the truth anymore.

Like, they are safe and they're free to tell the truth.

And then, you know, we have the Perry Mason moment to wrap it up at the end and we pull out the screenshots of the vehicle and that is when we finally point out that there is a photo where you can see the driver's window is down.

And, again, whenever that bomb gets dropped, there are papers flying, like, things are falling into the floor, the prosecutor's grabbing her pen and trying to figure out, she's trying to find the exhibit.

Who am I going to call a gang member to get out of this?

God, I'm in trouble.

Yes.

It is crazy.

And, like, as soon as my, you know, my trial partner says this, like, everyone, like, the body language in the room just totally shifts.

And, like, you can tell that they were waiting, they were waiting for an answer to that question.

And thank God we found them one on Sunday night before trial.

Yeah.

Wow.

Yeah.

Yeah.

That was great.

It was awesome.

The prosecution, they're panicking, right?

They are frazzled.

Yeah.

It is like the Tasmanian devil.

There is, like, a dust cloud.

There are papers everywhere.

It's crazy.

Boom.

All right.

Are we ready to talk about jury deliberations, then?

Yeah.

We can talk about that.

All right.

Yeah.

So the jury was out for five hours in this case, which is too long, in my opinion.

But they had two questions.

And these two questions sent me into a fucking tailspin.

The first question was, they were asking about a particular exhibit.

And it was a picture of the Mercedes and impound.

And the question was, you know, an exhibit number, whatever, is the passenger window up

or down?

So they were basically comparing this impound picture to the picture that we provided them

so that they could try and make a call about whether they thought the window was up or down.

So I'm at least received, like, I'm thinking, yeah, they're thinking about exactly what we want

them to, but I'm terrified they're thinking about it the other way.

So, you know, of course we say, you know, we can't tell you that.

It's up to you to decide from the exhibit what you, you know, believe about the exhibit.

You know, we send them some answer like that.

They deliberate for about another hour.

And then we get another question.

And it says, what happens if we cannot reach a unanimous decision?

Oh, dear.

Oh, no.

Because there's some juror back there who's going to go with the cop's version of the video

and the window and not the actual picture itself that shows the window being down.

I'm just going to trust the cop's opinion in my own eyes.

And he's going to go, listen, he's going to do exact thing.

They lied to those cops.

You know, they were telling the truth to the cops.

Nobody lies to the cops.

Like, oh, fucking.

Yeah.

So that question wrecked me.

It absolutely wrecked me because I'm sitting here thinking we're going to have a deadlocked

jury and we're going to have to do this shit again.

And the prosecutor knows our secret.

Yeah.

Yeah.

So, yeah, the judge basically says, you know, you're not to make your decision based on what

could or couldn't happen and you are to continue to deliberate.

Yeah.

You have to try our fact.

You decide what the evidence shows.

Yeah.

He really empowered them.

He didn't blow them up or anything and said, just keep going.

So, finally, around five or six o'clock that evening, we get the call and we head over to the courthouse.

And again, my client's entire extended family is there.

The courtroom is packed.

And the jury walks in and, you know, I always do the thing.

I try to see if anyone's making eye contact.

I try to read through the paper.

I try to see, you know, what side's marked.

And I can't glean any information from this at all.

But, yeah, they came back and it was not guilty on everything.

And how did your client react?

Oh, my.

Oh, it makes me emotional to think about it.

He, so we stand for the verdict in our jurisdiction.

He sat back down in his seat, put his head on the table, was crying.

I was crying.

His mom was crying.

His mom was hugging me.

He was hugging me.

And the best part of this is when we get back in the holding cell, the bailiff is crying.

And she say, like, she made a comment, like, I'm so glad that was the outcome.

When you won the bailiff over, you did a damn good job.

Yeah.

I've never seen that before.

And I've never seen it since.

And that was very special.

Wow.

Can you tell us about how your client was throughout the whole process from, like, when you met him and then during the trial and then up at the end?

Yeah, he all, you know, I touched on this a little bit, but he always had a very, like, calm demeanor, really positive attitude, trusted our advice.

And I think part of that is he was a child when he started this.

You know, he graduated high school in jail.

And that was his, like, you know, age 16 to almost 21 is him in a cell, you know, trying to grow up and navigate, you know, how hard that is anyways.

But also, like, facing a murder charge and dealing with these adults who come in to talk to him about the legal process.

But, yeah, he just always really trusted our advice.

But he was really smart and was, like, a good collaborator to say, you know, here are the risks if you testify.

And here's the benefits if you testify.

So you've got to make that decision.

And, you know, he just – the way he thought about it was so mature considering all the bullshit that had happened to him up until that point.

And I've always just been really impressed and blown away by, I mean, how he turned out because he – I mean, he grew into an adult in jail.

And then how was he during the trial?

Was he just chill the whole time?

Was he interactive or what?

Yeah, he's very calm.

He and I passed notes the whole time.

It's funny because when they were going through the car evidence, he knew what we had up our sleeve.

And he was, like, writing out things that he noticed about the exhibits.

And I'm, like, don't worry.

I'm asking that question.

Like, we've got this.

So, like, it's really cool to have a client who can kind of be a partner like that.

And, you know, they're not distracting you.

And you look on their paper and you realize they're picking up on the same things that, you know, you're picking up as the lawyer.

So, I mean, it was pretty much that, you know.

And obviously when the prosecutor made that accusation towards his family, like, that pissed him off.

And this is how smart he is.

He came into court wearing blue the next day.

I did not tell, for the record, I did not tell him to do that.

But, you know, he's smart.

And he didn't want to, you know, put his family in that position again.

And he didn't want to be put in that position again.

Because it's bullshit.

And it's not true.

And he recognizes that because of the color of his skin and what's going on here, that's something he's going to have to deal with.

So, all right.

Well, that's a great outcome.

Did you talk to him after the case?

Yeah.

Did you talk to the family?

Yeah.

So, even though he's found not guilty, he doesn't get to just walk out of the courthouse.

So, they have to take him back to the jail and, you know, process him out.

They have to give him all new clothes because he's literally grown a foot and a half since he's been in jail.

So, on the way out of the courthouse, you know, I meet with his family.

We're all hugging and crying and celebrating.

And then, when I get home, I get a phone call from my client.

Because, I mean, this is the type of family that I felt comfortable giving my cell phone number to.

Because they weren't calling all the time for unnecessary things.

They just, they were helpful.

They were really helpful.

They were really supportive.

But, I got a call from the client as soon as he got released from jail.

And, he is just screaming into the night.

Like, I think he said, I fucking love you, Hillary.

He was just so excited.

Yeah.

But, you could just tell.

Like, he was so excited.

And, by the way, we're a month away from his 21st birthday.

So, he's really excited about that.

Wow.

Wow.

It's amazing he was able to come out the way that you did.

But, I, it's those kinds of things.

Hearing somebody have to grow up in jail.

On a case that, from the beginning, was based off of recanted testimony.

Basically, no physical evidence.

And, your key unrecanted testimony is from somebody who's already copped to torture, kidnapping, and murder.

Like, what, what, those five years, never coming back.

He's not going to get compensated by the state.

He's, he missed so much.

And, the fact that he came out the way he did is a true testament to the kind of person he is.

But, I mean, this is just your reminder, you know, a prosecutor or somebody out there might be like, oh, you know, you got to pursue this in the interest of justice.

The interest of justice is not taking this case to trial in the first place because it was so paper fucking thin.

Well, and especially in light of the fact they got a conviction.

And, there was a, there was a man in prison for this crime.

Yes.

But, that didn't seem to matter.

Well, that's great, Hillary.

I'm glad that you, you were there for your client.

Thanks for reaching out to the podcast and sharing your story with us today.

We're going to wrap it up with our last question, which we ask all our guests.

I'm sure you know it's coming.

But, Hillary, you've been a public defender for seven years.

What drew you to this life?

Yeah.

So, I think in law school, if you would have asked me this question, the public defender's office just seemed like the fun place to work.

And, I had a friend who was a diehard true believer.

And, I kind of followed her path.

Because, I don't think I even really knew what a public defender was.

But, once I got there, you know, with my internship in law school, I realized, you know, like, what a connection I did have to the work.

You know, I had a dad who was very much a client.

You know, had mental health issues, had drug issues, had, you know, his own criminal problems, and saw that growing up.

And, I think once I found the public defender's office, I really found, like, my home.

And, I just, I love that I get to go into court every day and help bridge the gap and speak up for people that society doesn't want to listen to.

That's great.

That's great.

Well, thanks for being on the show.

And, Hunter, thanks for stopping by.

Thanks for stopping by and being an awesome co-host.

Love the insights.

Thanks for having me.

I really appreciate it.

The show's great, and I hope maybe one day I'll come back on and offer, you know, some more B- comedy.

We love B- comedy on this podcast.

That's what sells it.

Wait, wait.

B- comedy, that's my job.

Don't be stealing my shtick here, okay?

But, it was great having you, Hunter, and Hillary.

It was great having you both, guys.

And, just, I appreciate it.

I love sitting down with these interviews and, you know, just meeting like-minded people all over the country and just different public defenders in different states.

Knowing that we go through the same BS, same shtick, different state.

That's all it is.

And, I'll give you one more.

If you guys want to hear anything more from me, check out the podcast, Spotify, Apple, all the places, Public Defenseless.

You can hear more of my lame comedy and more understanding of all the things that public defenders have to deal with on a daily basis.

Check out Hunter Parnell and Public Defenseless if you want to get in the weeds because it's a good time.

So, all right, guys.

Thanks for stopping by.

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.