Crackin' Wits On The East Coast

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

You know, it's a daily honor getting to represent the people that no one in our society gives a fuck about. He didn't know if it was appropriate to describe the accuser as a crackhead. I believe she's under the influence, but more importantly, when she goes through the metal detector,

she gets arrested because she has a crack pipe on her. It does seem like a defense case, right? Like from the outside looking in, we should win this case. But then between my expert witness who's telling me, well, she did still point at your client and the DA really believing that these jurors are going to convict my client. Plus, you have this juror walking around with this bright blue, I love the cops bag. So like, anything's possible.

Welcome. Welcome to Another Not Guilty. I'm David Moore. Here, along with my fellow public

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 a deck stacked against us.

The not-guilty.

Hello, everybody out there. This is David. We are recording our first Another Not Guilty podcast episode at a studio in, where are we at, Chris, Hollywood or West L.A.?

We are in West L.A.

Today's guest, we have Mark all the way from the East Coast, a public defender all the way on the East.

This is our first national Another Not Guilty episode, nationally brought to you guys today, all the way from the East to the West.

The West, what's up, Mark? How you doing over there on the East?

I'm very well. I'm well. It's great to be on your show.

So you're a public defender also, right?

I am. Next month will mark my 17-year anniversary as a public defender.

Whoa, that's awesome. Well, thank you for your service, and I'm glad you're still going strong, because you're here today to tell us about a not-guilty you've had recently, right?

Correct.

Are you there making sure that justice is administered all the way over on the East for us? We appreciate that.

That's what we're doing. That's what we're doing.

Tell us about the criminal charge. What was your client charged with?

So my client was charged with felony one robbery, and he was also charged with a felony one person not to possess a firearm charge.

All right, so your client's charged with class one robbery or felony robbery one, and then you said he's also charged with being a person who's not supposed to have a gun, meaning are they like a felon or something?

Right. He had a prior conviction for both a burglary and a robbery, both of which make him statutorily ineligible to have a firearm.

Pennsylvania is an open—as I already said, Pennsylvania. Here we go.

There you go. Pennsylvania, baby.

All right, the state I practice in. Maybe we can edit out Pennsylvania. We're already—we're fucking up already.

Here on the East Coast, no. So this is an open carry state, and you need a permit to carry a firearm in a vehicle or concealed about your person.

But anyone over the age of 18 can have a firearm in their home unless they are a person not to possess.

And they can be a person not to possess for a few reasons, but the classic one is they're a convicted felon.

And it doesn't even have to be a prior violent crime, like people with prior intent to deliver drug charges or persons not to possess a firearm, for example.

So we do have a large percent of our clients who are not allowed to have a gun.

But as to the two counts, each have a maximum possible penalty of 20 years.

So it's a total of a maximum possible penalty of 20 to 40 years.

However, this state has sentencing guidelines.

They're purely discretionary, and it's not like the federal system.

They're discretionary in the federal system now, too.

But they are—my client's guidelines on this case start anywhere from a sentence of two and a half to five years in the mitigated range to six and a half to 13 years in the standard range.

A realistic sentence at either of these two counts would be something like four to eight years with a total expected sentence maybe if my client had been convicted of perhaps something like five to 10 years if I were guessing what he would have probably been convicted of.

Those are interesting guidelines.

So the most your client can do on the robbery is 20 years, right?

Correct.

And the most your client can do on the being a person who shouldn't have a gun charge is 20 years also?

Correct.

I mean, those seem very—like one crime seems way worse than another.

Why are they both the same?

Why are they both 20 years?

And again, we just—we only—well, why anything in the criminal justice system, right?

I mean, the felony one gun charge is a new charge.

We have, until recently, the maximum possible penalty for any gun charge was 10 years.

But no, I mean, both sides of the aisle are happy to be tough on guns, particularly when it comes to people like our clients who have prior convictions that preclude them from legally having a gun.

I feel like the people who need the guns the most are the ones that are precluded from—you know, like I have clients that have these little felonies, and now they can't own a gun because, you know, like here in California, we—if you get charged or if you're convicted of a felony or certain misdemeanors, you have to sign a form saying that you don't have any guns.

And if you do have guns, you're going to dispose of those guns.

And it's like now a new crime for this person to have a gun.

I don't—I can have a gun, but I can tell you I don't need one.

I'm with you.

I'm with you.

Although there is a firearm.

See, the closest I ever came to wanting a firearm—I don't know if you're aware of this, but there's a firearm on the market called the Public Defender.

And when I heard that there was a handgun called the Public Defender, I paused for a moment and thought, gee, that might look cool on a shelf, but I don't want to have a gun.

But it is kind of neat.

It actually says it on the gun itself.

Really?

There's a gun called the Public Defender out there that we can buy?

You can buy a gun called the Public Defender.

I wonder, like, how good of a gun that is.

It's a pretty good gun.

It's a Taurus gun.

It's a Taurus handgun.

I did a little research on it at the time.

It's in their judge line.

The original gun was called the Judge.

Right.

And then they have another gun called the Public Defender.

Ooh.

Is it called the Public Defender because you just shoot from the hip, you know?

Is that like—because we're like wild, wild Westmen, you know, rolling into courtrooms, tearing it up, shooting up the place, walking our clients out the courthouse, you know, like, causing chaos.

That's a funny image, right?

I don't know.

Does the DA have a gun?

No, no.

The DA doesn't get a gun.

They don't get a gun.

It's the Public Defender.

There's no gun.

I'm the prosecutor as far as I know.

Yeah.

And so, all right.

So what are the police facts?

What does the police report read when you first get it?

What's the prosecution's case?

Well, so the sequence of events—and this is also very different from the procedure where you are—we don't have the full discovery or even the actual police report at the preliminary hearing.

At the preliminary hearing, we just have an affidavit of probable cause, which is written by a police officer, and it has to put the defendant on notice of what the accusation is, and that's it.

So when you do a preliminary hearing, you don't even—you don't even have a police report?

You just get, like, a criminal charge and an affidavit or a signed declaration of probable cause by a police officer?

That's it?

Correct.

An affidavit of probable cause.

And in this instance, the affidavit was pretty sparse.

It stated that the accuser—we use the term—the courts use the term victim or alleged victim.

I like to say accuser because victim assumes that a crime was committed.

So an individual is leaving a bar at bar time.

She is walking through an alley, and she is approached by a young African-American male in his late teens, early 20s, and he brandishes what she believes to be a firearm, demands her purse.

She gives him the purse, and she calls the police.

And then a week or so later, to be exact, it was—it was, I think, eight or nine days later, she sees the person who—she is the person who robbed her, and she calls the police again.

She calls 911 a second time and says, the little boy who robbed me, he's walking down the street.

I can see him right now.

And they follow her call.

They find my client, and they arrest him.

And that's basically what they have walking into the preliminary hearing.

And it's when the robbery happened at nighttime, you said?

At approximately bar time, 2, 2.30 in the morning.

Okay.

And you said she was walking down an alley from the bar?

That is the term that she used, correct.

Okay.

All right.

So a week later, she says she sees the person.

Is this in daylight or—

Correct.

All right.

Correct.

Okay.

And it's in the same area where she sees the guy a week later?

It's pretty close.

Correct.

Okay.

All right.

And the person that's—at least you see a week later is your client because do they arrest him right then and there?

They do.

And he makes no statement.

He makes no statement.

You first meet your client.

What happens?

Well, so before I read the preliminary hearing transcript, but I also read the preliminary hearing attorney's notes, and I sit down and talk to that attorney before going to meet my client.

And one of the things that I noticed that I found interesting was that there was a lot of, like, scratched-out material in the attorney notes.

And I'm thinking, like, why is the attorney, like, redacting his own notes, right?

Right.

So I approach this attorney, and I ask him, you know, what's up with this?

And he starts laughing.

He remembers this case vividly, and he tells me that he was relatively new to the job at the time, and he didn't know if it was appropriate to describe the accuser as a crackhead and this and that in his notes.

So he just had all these pejoratives that he thought might, you know, come off as—I mean, I don't run around calling people crackheads, so I understand his concerns.

Also, notably, I don't think I've mentioned this before, the accuser did not appear at the first preliminary hearing listing.

It had to be postponed once by the state, and then she appeared the second time.

So I'm hopeful from the jump that they may have some witness problems here.

And there are some inconsistencies, big inconsistencies, between the affidavit—I don't have discovery yet, I don't have the full police report yet—but between the affidavit and the preliminary hearing testimony,

the biggest of which, at the preliminary hearing, she's not sure if she saw a gun, whereas the affidavit makes it seem more sure.

So they actually describe a color of a gun, and then at the prelim, she's like, I couldn't see the color, I couldn't, you know, so big differences there.

You think there's some witness issues?

The accuser is a crackhead, so to speak, and where do you go from there?

I go meet the client.

I explain to him what has happened since the preliminary hearing and what's about to happen at the pretrial conference.

What happens, so the police ask for the initial charges.

Then a magistrate who oversees the preliminary hearing holds certain charges for court.

A magistrate is an attorney appointed by the court to serve as a judicial officer with the power to preside over certain trials and hearings.

And then it goes through the DA's office, and they screen what happened at the magistrate.

And in this case, they determined that they can't charge him with the second gun charge due to the operability issue.

They erroneously believe that they can still proceed on a person not to possess, even though there's a good argument that they can't.

But they dropped the one gun charge, so I explained to him why that happened, and that we start talking about a plan and a timetable.

You know, my client is extremely young-looking.

That's the first thing I think when I meet him.

He is 21, but he looks like 12.

I mean, he is very, very, very young-looking.

And that's important later on in the case.

So he's very young-looking.

He's also, for lack of a more PC way of putting it, he's very, very street, more so than most of my clients.

He has had a very tough life, doesn't have much family support.

In fact, throughout this whole process, I'm unable to reach any family members.

No one comes to the trial for him.

It's very, you know, very heavy stuff.

Right.

But he swears up and down that he had nothing to do with this, and he wants to go to trial, of course.

And we talk about how we'll meet again after I get the discovery.

I talk to him about how I already see some pretty big inconsistencies between the affidavit and the prelim testimony.

And we discuss the possibility of retaining an eyewitness identification expert.

You know, it's weird, though, that you don't – like, do you get the discovery at the first pretrial then?

Is that when you get the police report?

Correct.

And how much time has elapsed between the arraignment and then the prelim and then the first pretrial after the prelim?

Well, I have the dates in front of me.

I have, like, a few notes in front of me.

In this particular case, it was four months.

Is that usual?

Is that a typical scenario?

Yes.

So you don't even get to see the police report until four months?

Not the full police report, no.

Is that just something that you have to accept over there where you practice?

It just seems ridiculous that you can't start working on the case.

You can't even, like – I mean, like, so much evidence can go missing within a four-month period.

Absolutely.

And that is when I'm first getting the case.

I mean, my client has been languishing in jail for four months.

You can't just blindly go off what your client tells you.

You know, you have to know what the state's looking at.

Correct.

Because we're responding to the state, you know, like –

Correct.

Until we get the discovery at the pretrial conference, there is very little we can do.

Okay, so – I mean, even video, right?

I mean, usually, like, businesses, like, only return their video for, like, two weeks to a month or whatever.

I don't know.

Well, no, and the preliminary hearing attorneys and the investigators do try to address those issues.

Okay.

And I can't recall if that was done in this case.

That may have been done in this case.

I don't recall.

Okay.

Are you doing, like, any jury trial preparation also at this time?

Oh, yeah.

I'm preparing for trial.

Like, what's your –

Like, what are you preparing for?

Like, what's your – what's the defense?

So, in this case, it is a weak eyewitness identification case.

There's a ton of inconsistencies.

It turns out that she's made multiple statements to the police, and there are two recorded 911 calls.

The initial call when she's robbed and then the call eight days or so later when she identifies my client.

She uses very different words to describe those two individuals, and that's recorded.

So, we know that the jury – or we hope that the jury is going to hear these calls.

And then there's a number of other inconsistencies.

There's also a huge fact that we weren't privy to at the preliminary hearing, which is the day after the incident, she called the police department – not 911, but, like, the local police department – and told them that she knew who robbed her and gave a name.

And it's not my client.

She gave someone else's name as the person who robbed her, which is, of course, a huge fact in our favor.

This is not the day after your client's arrested she gives the name?

No, the day after the robbery, before my client's arrested.

That's weird.

The very next day.

So, she said –

Very weird.

The next day she calls the police, says Joe Schmo did it, and then a week later she calls the police and says – and points out your client, and then –

Correct, who is not Joe Schmo.

And what – it's not like she's necessarily a bad person trying to pin something on your client.

She just has no clue who did it, right?

Is that what – pretty much what your defense is?

It's the wrong person?

It's the wrong person.

It's the wrong person.

And she's kind of a mess.

She's the kind of person who's really not that – not that scrupulous.

And there's some facts that come out to support that.

Okay.

And also, is the preliminary hearing testimony different from the police report statements also?

Correct.

Correct.

There are some differences.

And she starts adding additional things being taken from her, like the initial police report.

She describes what was taken from her.

Suddenly, at the prelim, the value of what was taken from her increases significantly, including a very expensive item, that being a pair of dentures being added to the list.

But, yeah, so she adds some pretty expensive items.

How old is the complaining witness?

She is in her 50s or 60s.

I think 50s, I would say.

Nice.

And she's coming out of the bar at 2 a.m.

And her dentures are stolen?

Based on your prior podcast, I know you know the answer to how much she drank at that bar.

What did she drink at the bar?

Two beers.

Correct.

She had two beers.

She had two beers.

That's correct.

Of course.

It's always two beers.

Right.

Well, it's one or the other.

It's either two beers or I had 800 beers.

It's one or the other.

But there's never a middle ground.

But right, she had two beers.

How long was she at the bar for?

She doesn't know.

She doesn't know so much.

She doesn't know.

She doesn't know.

You can't be at a bar and only have two beers at a bar.

Especially all the way to 2 a.m.

If you're at a bar at 2 a.m., that means you've had like six beers.

You've had a fair number of beers.

Yeah, you don't get to the bar and just have two beers and then all of a sudden it's 2 a.m.

Now, the police did note when they spoke to her on the night that she did not appear intoxicated, which is interesting.

But they did make a note of that.

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All right.

So you're ready.

You're ready to go to trial.

And essentially, it seems like you're just attacking the state's case, right?

The burden of proof, the evidence they're going to put on is not credible.

Yeah, we had no defense witnesses that we were planning on calling with the exception of the eyewitness ID expert.

So over here in California, in a criminal trial, the burden of proof is proof beyond a reasonable doubt, bitches.

What's it all the way over in your part of the woods?

Proof beyond a reasonable doubt, bitches.

That's fucking right.

The highest burden in the land.

Did you let the jurors know that?

Oh, yes.

Oh, yes.

And I suddenly go from flag burner to Joe Patriot.

And I talk about the bedrock principles of our legal system.

And this isn't legal mumbo-jumbo.

These are critical constitutional rights that we enjoy both in this state and in this country and blah, blah, blah.

Kind of like in the state where you practice, though, we have some U.S. history and some constitution.

Do you ever kind of talk about in these lands, in these parts, you know, good old Thomas Ben Franklin, George Washington walked into this courtroom himself.

He walked in through those doors and he signed the Declaration of Independence.

This is where he gave his speech.

You got it.

You got it.

Of course.

Do you – yeah, do you want to – so what are you tackling with the jurors during your voir dire?

So one of the things – and I'll get to like a specific juror example on this case.

But one of the things – one of the pet peeves I have is being asked what kind of jurors do you want in this case.

Like what jurors are you looking for in this case?

Because usually the kind of jurors I'm looking for, I'm not going to get, right?

Like my client – let's say my client, for example, is accused of molesting a child, right?

Like what kind of jurors do you want?

Pedophiles.

But like are they going to – you know what I mean?

Like it's like how do I answer that question?

So anyway, we pick a jury.

Because we do ask – I think sometimes we do ask that question a lot on our podcast.

Sure.

So you always –

Well, I always kind of cringe when my coworkers ask me that question on an individual case.

Like what kind of jurors do you want in this case?

Like people who sell crack cocaine.

Like how do I answer that question?

Like I'm not going to get people like my client.

I'm not going to get – you know, it's a police shooting.

Am I going to get people who like despise cops and like laugh when police officers get – no, you know, it's like I'm not – like what kind of jurors do I want?

It's sort of like I'm dealing with these 70 assholes in the room and I'm going to have to, you know, pick from them and I'm not going to get the – you know.

So you're going through jury selection then, right?

And you're doing – you and the DA are picking jurors, right?

Right, and we picked the jury and jury selection, we had agreed that we were going to pick the jury on a certain day and then we were going to start the jury the next day, okay?

Okay.

Well, that was – the stupid thing that the DA did was she agreed to pick the jury on that day but she did not subpoena the accuser except for for the next day.

And so she started getting wind that they might have some witness problems, that this accuser might not show up.

And so most judges would freak out if after a jury is selected, you know, why didn't you subpoena the accuser for that day, you know?

But in this instance, instead, there's a twist, which is the following day we get there, the accuser's not there, the DA's freaking out.

Well, the accuser finally shows up.

They speak to her and we're told, you know, we have some new exculpatory information for you.

We have some new information.

She just made a statement that pertains to this other person who she first identified in this case and we have to – the right thing for us to do is postpone the case, do a video interview with her, give you additional discovery, and we might even drop the charges altogether.

Now I'm skeptical as to that last possibility.

And she tells the judge, look, I'm sorry, we picked this jury, but I need a postponement.

We object, of course, because, you know, my client's been in jail now almost eight months since the incident.

We're ready to go.

We also really liked our jury comparatively to, you know, what a lot of juries are like.

So – and my client was in really good spirits during jury selection.

He was, like, a very active participant in the process and – yeah, but so the judge grants the postponement and, you know, I think he thinks that this case might go away altogether, right?

So the case is postponed for how long?

Longer than we wanted, almost three and a half months.

All right.

And what comes from it?

What comes of the whole postponement?

Absolutely nothing.

We are told that they're having a hard time finding this person, that she might be in rehab, that they're not sure she's going to appear, and we're told that these officers have been making efforts to find her, and they're not able to find her, and blah, blah, blah.

And they finally do find her and conduct a new interview with her just five days before our new trial date, which is at the beginning of 2019, which is really ridiculous.

But we're given not a recording as we had been promised.

We're given a new police report of a new interview where, really, she just tries to explain where she got that name from.

She's trying to explain away why she gave the police the name of this other person, and it's very disappointing, and we're ready to pick another jury.

Do you know what this other person looks like?

Does he look similar to your client?

The name she gives is just a street name, and he looks not at all like the client.

He doesn't look at all like the client.

They're the same ethnicity, but they're not even the same.

They're both light-skinned African-American males, possibly biracial, possibly light-skinned.

But they're not – other than that, they're dissimilar in a number of ways, including height and build.

And you said your client looked pretty young, so –

Extremely young.

And, you know, one of the things I made a big stink about at trial, of course, is when she first calls 911, she describes him as being in his late teens, early 20s.

And then when she calls, when she's actually looking at my client, she's like, oh, that's the little kid who robbed me.

He looks like he's about 14 or 15.

Totally different than what she had initially said.

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All right.

So you get this – you get a new statement that doesn't lead to anything, and then, what, you start – you go to trial again, right?

This time, the DA makes sure that the accuser is there.

Before we pick the jury, the accuser is late but does show up.

She seems okay.

And we go and pick the jury.

Now, all of a sudden, I think he's just worn down from being in jail for so long.

My client is very different than he was the first time around.

I think he's disappointed that the accuser is there.

I think he got his hopes up that maybe the case would go away that way.

Right.

But he's doing things like, you know, we're discussing whether or not to strike prospective jurors.

And he's saying things like, if they're going to convict me, they're going to convict me.

It doesn't matter who's on my jury.

And he hadn't acted that way at all the first time.

And so that was nerve-wracking for me.

And I was afraid that it would rub off and look the wrong way.

Like, I was afraid that he would look guilty to these jurors because of just the way he was acting.

And so that was difficult, especially since I didn't see it coming.

You know, I had already picked a jury with him.

I knew that he was excellent throughout that process.

So that was tough.

And I didn't really like the second jury as much.

Like, one of the prospective jurors used the term gangbanger.

Like, she had worked in a juvenile placement.

And she said, you know, I used to work with gangbangers.

And I'm thinking, well, that's the term that a lot of people would use to describe my client, you know.

And my advice to him was not to keep her.

And he was, like, you know, interested in having as diverse of a jury as he could.

She would have been one more non-Caucasian juror.

And we kept her on.

And that made me very, very nervous.

All right.

So you got your new jury.

Your client's acting kind of weird.

And how does the case start?

How does the trial start?

So it's the next day.

We get to the courthouse.

And I can't find my expert witness.

And, you know, my expert witness gets to be there when the accuser testifies.

So I'm a little bit worried about that.

I'm looking for her.

I find her.

Come to find out that the accuser isn't there.

And now I'm thinking, like, oh, my.

After all this, the accuser isn't going to show up and the case is going to go away, right?

The DA is freaking out.

And finally, the DA says that their victim advocate has reached the victim.

And the victim is waiting to be picked up by the police.

And the police are going to drive her to court.

So we're going to be able to have our trial.

And guess what happens when the victim gets to the courthouse?

She's under the influence?

Well, I believe she's under the influence.

But more importantly, when she goes through the metal detector, she gets arrested because she has a crack pipe on her and a bunch of other paraphernalia.

And, you know, while I certainly don't like people being arrested or incarcerated, this is just kind of like you can't, you know, like what?

Like and if it was one of our clients or one of our witnesses, there's no way they'd be taking the stand that day.

Right.

Like no judge would allow that.

But, of course, because the tables are turned here or however you want to put it, the DA, she actually is uncomfortable calling her.

She says to me, you know what?

I know I had to postpone this before.

I'm going to ask for another postponement.

If the judge denies it, you know, if I if I have to drop the charges, I'll have to drop the charge.

But after talking to her, I think she's under the influence.

I'm not comfortable putting her on the stand.

And I'm thinking like, you know, this is don't confuse this with me saying something nice about the other side.

But I'm thinking, you know, this is going to go away.

And instead, the judge conducts this little colloquy with this with this accuser.

And he determines that she's not under the influence and that we're a OK to proceed.

So we proceed.

Now, do you feel like the judge could have went a different direction in their in their ruling?

They could have done something different or is that just like like how's that?

Yeah, I mean, I think I think the judge.

Well, the main thing that I felt was just the imbalance, you know, like they would not take a plea from a defendant who came into the courthouse with a crack pipe,

even if that defendant seemed completely and totally sober.

Any judge would say, oh, you know, they must be under the influence and they would throw them in jail and they would have to sit until a plea was able to be taken on another day.

Or if it was a defense witness, I feel like it would be treated differently.

So, yeah.

So you're saying you're saying if a defense witness or defendant walks into a courtroom to handle business, like all of a sudden that person needs to go in custody.

They're under the influence and we need to come back a week later and handle this situation.

That's right.

Because it needs to be done right.

But if a witness for the prosecution walks in, is under the influence, the judge will be like, no, she's not.

And we're going to go forward today and there's going to be like no consequence of that.

And, yes, you can go ahead and testify and try to throw someone in prison or, you know, possibly imprison someone.

They're always in a condition to throw people in prison and then there's always an issue.

Is that kind of like what you're saying?

Exactly.

That's how I felt.

It just felt like a total imbalance.

And she did seem more likely to be under the influence at the beginning of the day than by the time she actually testified.

You know, like she was leaning up against the window sill in the hallway.

She just like – she didn't look great.

Even if the person, like, sobers up to a certain extent, they're still not in a good condition.

It's not like all of a sudden they're just fine.

You need to, like, go to sleep for 24 hours after being on a bender, I would imagine.

You don't just all of a sudden snap into okay mode.

And she lies, though, during this colloquy, or I presume she lies.

I don't know.

But she says that she hasn't smoked crack cocaine in two days and that she looks the way she does because she had to go to the hospital with an ailing relative the night before.

And, you know, no one in the room believes this.

Right.

Those are defendant excuses.

The hospital, you know, like those are –

That's right.

Those are our excuses.

But when there are excuses, they're true.

They're not excuses.

So are you guys – so you guys are questioning her under oath then before the – outside of the eyes of the jury, you're having this little –

Correct.

This jury hasn't been sworn in yet.

So let me just –

This jury was selected.

Who brings up the accuser's physical condition?

Like who asked her about it?

Well –

Like why do you look like that?

You know, you look like shit.

They bring her forward and the judge says, I heard you had some problem this morning.

And she's like, yes, I had a crack pipe on me and some other things and they gave me a summons and I have to appear in court for that.

And the judge says, you know, when was the last time you consumed any alcohol or drugs?

And I don't even remember now.

I think she may have said she had two beers the day before.

But she said she hadn't done crack cocaine for a couple of days.

And the judge is like, are you clear-headed?

She's like, yes.

And he's like –

I like how she still went with two beers, huh?

Always two beers.

Always two beers.

Always two beers.

All the crack in the world.

But nope, just two beers.

I don't have a drinking problem.

It's always two.

It's always two.

No, no, no.

Two beers is too – three is too much for me.

Just two beers and crack cocaine.

That's all I need.

Just, you know, a little bit.

You know, we have the beer than liquor, never sicker.

Liquor than beer, you're all clear.

But I don't think there's a formula with crack.

Or at least there's not like a rhyme.

I don't know the rhyme if there is one.

That's right.

So, I mean, so your client's like been in custody for almost a year now, right?

Correct.

And they're falling apart.

They've had it.

But even with the complaining witness coming to court and possibly being under the influence,

didn't that cheer your client up a little bit?

I almost feel like, hey, this trial is getting better for you right now because of that fact.

Yeah, and that's what I'm trying to tell him.

But, like, for him, it's like there's this moment where he thinks she's not going to be

allowed to testify and the case is going to go away.

And then instead he's told the jury is about to come in and we're doing opening statements.

So he's just being pulled in a lot of different directions.

He's been in custody for a very long time.

And, yeah, he's just sort of losing it.

And it's very painful to watch.

And I had seen that one juror who I had such concerns over.

I saw her in the hall and she was carrying, like, a blue bag that had some sort of, like,

law enforcement, like, logo on it.

So now I feel even worse about the fact that we had chosen this juror who used the term

gangbanger in her own during jury selection.

So now I'm like, man, like, I was right.

Like, why did we choose this person?

Because she's carrying, like, this, like, I don't think it was a Blue Lives Matter bag,

but it was, like, one step away.

It was, like, a blue bag that has some, like, police logo on it.

I'm like, oh, my God.

Like, this is our juror, but, oh.

What happens next, then?

So opening statements.

And I am all ears for how the DA is going to explain away this identification of someone

else.

Because you know she has to address it in her opening, right?

Right.

It's, like, a bad fact.

Put it out there.

Explain it, you know?

I'm sitting there with bated breath waiting on that, and she doesn't mention it at all.

I couldn't believe it.

Because, of course, in my opening, I'm going to be able to say, hey, guess what the DA didn't

tell you?

That initially this accuser identified someone else?

I can't believe she made it that easy for me, but she did.

Also, it's DA 101.

Like, you do not, in your opening statement, refer to a case as cut and dry or simple or

any, you know, because defense, what are we going to say?

Simple, that's code for they don't have a case.

Yeah, it's simple because they have nothing.

You know, you're going to hear nothing.

They don't want you to think.

They just want you to...

Right.

And this is what she does.

She gets up there, and she says that the case is simple.

She says that the case will be proven not only through the victim, but also through the

officers.

The officers, they're not eyewitnesses to anything.

They just collected info.

And she also told the jury to focus on two days, the 911 call when she initially identified

the defendant and the preliminary hearing where she identified the defendant in court.

So that second 911 call where she sees my client on the street, she's like, those two dates,

that's all that matters.

So then I'm able to stand up in my opening and say, well, guess what?

If you count all the interviews and you count everything else, by my count, she's made 11

different statements, and there's already major glaring inconsistencies so that whatever

she says in court, it's going to be inconsistent with something she said previously.

I get to poke fun at the idea that this is a simple case and about how that's really

code for them not having any evidence.

And I get to say, well, guess what?

The DA didn't tell you.

She initially identified someone else.

That's reasonable doubt right there.

How can you not pause and hesitate at that fact right there?

All right.

You win opening statements, it sounds like.

Hands down.

All right.

And then so what happens next?

And the DA puts up the complaining witness?

DA puts up the complaining witness, and the complaining witness tells a version of what happened.

She tells a version of what happened, and I could not – I was, again, completely stunned

that even after hearing my opening statement, the DA on direct examination doesn't bring

out this information about the other person who she had identified.

I couldn't believe it.

But you have to deal with your bad facts, right?

So on cross-examination, one of my concerns is there are so many different statements.

So I am highly organized, and I have this chart, and it maps out all of her inconsistencies.

So as she's testifying, I'm making marks on my chart, and I'm able to meticulously go

through each and every inconsistency.

And there's a lot of them.

What are some of the inconsistencies?

She had originally described to the police that the gun was a tan gun, and then she said

that he brandished an object that looked like a gun, but she couldn't see the color.

Or she, in another version, she thought he had a weapon from a gesture he made.

She added in different things that were taken from her, including dentures.

She described the area where it occurred as being very dark and having no streetlights

versus, well, there were some lights coming from surrounding buildings.

She had initially described the perpetrator as having a hood up, and then she specifically

says under oath at the prelim that he didn't have a hood, and the age difference, which I

think is—they're pretty big differences.

And you're just impeaching her with all these prior statements?

I am, and I'm not sure if the police are going to be necessary—like, I don't know

if she's going to deny making all of any of these prior statements.

There's some prior statements that are made under oath.

Some of them are made to police, and both 911 calls were played, which was a big weight

off of my shoulders because the jury actually were able to hear her prior words, and we

stipulated to the authenticity of those, and we were happy that those came in.

They help us.

So then how does she react to the inconsistent statements when you bring them up?

She agrees with most of them.

She fights me on a couple of them.

You know, she's like, well, if that's what I said, that's what I said, that kind of thing.

Not, I didn't say it.

You know, she agrees.

And when I bring up—the one new thing that comes out at trials, when I bring up her previously

identifying someone else, she adds in that subsequent to that identification, she called the police

and told them that she was wrong and that she knows that that's not the person who robbed

her.

And there's no record of that anywhere.

She swears up and down that it happened, and I'm later able to ask one of the officers

if there's any record of that or if there would be a record of that, and he said there

wasn't a record of that and that, of course, any officer who were to take that would have

to document that, and, you know, he's not aware of that call.

So I was able to imply that she's the kind of person who, you know, is willing to, you

know, finger the wrong person and then not correct it, you know.

All right, so that means the prosecutor put up some of the police officers then?

In her case?

Yes, and that was actually helpful to me, too.

Like, she put up three of the police, and her thinking was these guys are going to get

up there, they're going to go through these prior statements, and it's going to highlight

what's consistent, you know?

And in fact, she tried to get the police officers to actually say that the statements were consistent.

I objected, and the judge properly sustained my objections.

It's not for the police officers to say that these accounts are consistent.

It's for the fact finder, for the jury to say, and the judge ruled correctly on those.

And, you know, and then by calling all those officers, even though I didn't have to go

through all the inconsistencies because she didn't deny having made them, I went through

them all again with the officers, you know?

This is what she told you, right?

And a lot of the time, we don't want officers to be reading from their reports in court.

Here, I was happy when they were referring to their reports, and because their reports highlighted

the inconsistency.

So I was able to have the jury hear all these inconsistencies twice, once from the accuser

herself, and then also hear that these officers, what they had documented was what I had said

they had documented.

Now it's time for your case then, right?

So we call the eyewitness identification expert.

What did she get up and testify to then?

So she talks about how there's all this empirically-based research that talks about how eyewitness memory

identification are affected.

She talks about how memory works, how memory's far from perfect, how it's not like a tape

recorder.

She talks about the difference between estimator and system variables, estimator variables being

things that the system has no control over, such as the lighting, et cetera, at the time

of the offense, and then system variables being things that the system has control over, like

how a lineup is conducted.

And she goes on to say how, you know, the perceived presence of a weapon, stress, and view

are factors in this case that could have affected the eyewitness accuracy.

She also talks about the potential of source confusion, and the fact that she may have

seen an individual before, how that can cause problems, and the confusion between her identifying

this other person and our client.

Then she talks about best, yeah.

Does that mean, like, source confusion means that, like, her memory could have inserted somebody

else into the event?

Like, she sees a person, like somebody else on a previous occasion.

Exactly, exactly.

Like, she's seen my client before.

She had, in one of her statements, said that my client was someone who she didn't know,

but she'd seen him before.

So you could be identifying someone who delivers your mail, as opposed to someone who robbed

you, and you could be confused about how you know them.

Now, these are just kind of, like, general things about the memory, why it's fallible.

Did she bring up things that the accuser said in her testimony that she used in her analysis?

Right, so she talks about how, specifically in this case, there's the presence of a weapon,

there's stress, there's bad lighting.

So yeah, she talks about specific factors in this case that could affect the accuracy in

this case.

Also about how, you know, this woman sort of did her own police work, and then the police

were like, okay, we're done.

She talked about how best practice would have been for them still to show, you know, sequential

photographs or a photo array to this accuser, not to just end it there and say, okay, she

called us when she saw the perpetrator, that they could have still done some best practice

work.

So what happens next?

So we move on to closing arguments.

But yeah, closing arguments.

I went through all the inconsistencies, and I made fun of how in the opening, the DA said

that the police were going to help prove her case.

How did they prove the case?

They just gathered information.

It's just this accuser's word.

And how can you not pause and hesitate at this?

How can you not pause and hesitate at that?

And go through all 11 of her prior statements and all the inconsistencies and talk about

how over and over again, talk about how she had previously identified someone else.

And what's the prosecutor's argument then?

Like, even though she said all these inconsistencies, you can still believe her because, like, what

was she saying?

So she takes the stand.

I mean, I'm sorry, takes the stand.

So the DA stands up, and her closing was just absurd.

I mean, she talks about how, you know, this is all smoke and mirrors.

She says that I used the term mumbo-jumbo in my closing to describe the legal definition

of reasonable doubt before I talk about it.

And she's like, you know, the only mumbo-jumbo we heard in this trial was the defense's expert

witness.

That was mumbo-jumbo, you know.

And that was, like, her best work in her closing.

That was it.

That was, like, all she, that was the only time in her closing.

I was like, all right.

But, like, the rest of it was just, you know, she pointed at him.

She was sure it was him.

She was trying to make my inconsistencies consistencies.

Yeah.

Like, she was trying to say that describing someone as 14 or 15 years old is the same as

saying someone's in their late teens, early 20s.

No, it's not, you know.

It's just, like, so then she's, like, re-highlighting all the inconsistencies by trying to make them

not, it was just, it was bad.

And, you know, but again, like, sometimes we wonder, you know, are we fooling ourselves?

Because this does seem like a defense case, right?

Like, from the outside looking in, we should win this case.

But then, you know, between my expert witness who's telling me, well, she did still point at

your client, you know, you never know what's going to happen.

Between that and the DA seemingly, like, really believing that these jurors are going to convict

my client.

Plus, you have this juror walking around with this bright blue, I love the cops bag, you

know.

So, like, anything's possible.

But, yeah, no, the jury, of course, ends up acquitting.

Well, congratulations and great job, Mark.

That was, I'm glad you're, you know, I'm glad you're there for your client at every step

of the way.

Well, that's what it's all about.

It's all about the client.

Right.

Well, so, go ahead.

Tell us why you became a public defender.

You said this is year 17.

This is all you've done as a lawyer, right?

You're just a public, you've just been a public defender the whole time.

That's correct.

It's the only legal job I will ever have.

This is what I'm here to do as I will be a public defender.

So why'd you become one?

That's a little bit of a long story, I think.

And I will try to hit some of the high points.

I would say that I'm someone who always had problems with authority growing up.

And I did get into little bits of trouble here and there because I had a big mouth, because

I asked questions, because I was confrontational with authority figures.

So also, my parents didn't have the typical American point of view when it comes to law enforcement

and the justice system.

I'm first generation on my mom's side.

My mom is from another country.

She's from a country in Eastern Europe where people don't like cops.

And as I got to be a little bit older, but not very old, I got into this stuff really young.

I became involved in the punk subculture, which is a joke to most people.

Most people don't understand it.

Even people within it disagree about what it is.

And it's a lot of different things.

But it's a very anti-authoritarian subculture that I was very much attracted to at a young

age, became very involved with.

And so as I'm becoming more and more interested in politics and learning about the world around

me, I'm also listening to these highly anti-authoritarian bands.

And they're sort of like the soundtrack to my upbringing.

Now they're the soundtrack to my occupation.

So a combination of this subculture I'm involved in, a combination of my extreme political

views, it's a daily honor getting to represent the people that no one in our society gives

a fuck about.

I mean, our clients are great.

I have a much greater affinity for them than I do for most attorneys, certainly.

And it's great to be on the front lines of what's one of the most important issues of

our time.

I don't take what I do lightly.

And it's a daily honor.

And fortunately, I'm good at it.

Um, but no, it's, it's, it's, it's, I feel very privileged that I found a job that fits

my politics and my personality and that I've been able to be so successful in.

Um, and then what, what, why don't you believe in the, in incarcerating people?

I don't see punishment as productive for society in any way.

I mean, I don't understand how we can't come up with more creative solutions than locking

people up.

Um, you know, besides the pragmatism of it clearly isn't working and it's clearly not

solving any important social issues.

Pick a social issue, domestic violence, sexual assault, guns, what you name it, a lot of drugs.

So I mean, locking people up, no one thinks that it's solving these issues.

And, um, and that's why, you know, shockingly the most progressive federal crime bill in

our lifetimes was passed during the fucking Trump administration.

Cause you had this like bipartisan support for this thing.

Um, I'm talking about the, the bill that recently, but I mean, it's like, we're finally getting

there, right?

I mean, we were, we're finally, um, going against the incarceration boom because we have to,

but, um, I just don't see how we can't come up with more creative ways of solving problems

than locking people up.

And when I want, you know, I have enemies, I have people in our society that I can't stand.

My go-to isn't, you know, these people need to go to jail or these people need to get locked

up.

And when I've had bad things happen to me, occasionally you'll get a DA saying to you,

well, what would you do if such and such happened to you?

Well, I can tell you what I would do.

I wouldn't call the police.

I wouldn't want the person prosecuted if the police were called.

And that's just, that's just not how I see the world.

Um, so when people ask me, well, well, what should happen?

What should happen to people who commit heinous crimes?

They always jump to the most heinous crimes, you know, as opposed to what most so-called

crimes really are.

But the other 90%, you know?

Right, right.

They're always like, um, like I remember going to a high school reunion and, um, someone asking

to me, well, what about that Cleveland kidnapper who had those three?

And I said something along the lines of, well, he just needed a hug and some medication, you

know?

And it sounds like I'm kidding, but I'm not kidding.

I mean, like, like, a hug and some medication sounds better than walking someone up, right?

I mean, and it might actually be effective.

So, um.

I feel like, you know, if you show people love, they'll love you back, you know?

You know, like, as opposed to just, if you villainize, you put, you, you outcast people

from society, they just, it doesn't, it actually makes it worse.

I think you got to, like, if people are lashing out and doing things that we as a society don't

condone or maybe bad in that moment, you know, you got to, like, kind of love that person

a little bit and show them another way as opposed to just throwing them away and casting them

away and telling them they're worthless and they're not good enough.

And then when they do get out of, when they do get out of incarceration, now it's an uphill

battle just to live a normal life.

It's like, you just make it more and more difficult for them.

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

Shout out to Daniel Mark, creator of A&G's original theme music, and our audio engineer,

Chris Adams.

And guess what?

We have another Not Guilty story coming your way next week because we public defenders fight

injustice every single day in the American criminal system.