Pin The Gun On The Homie – When the State Plays Musical Chairs With Evidence

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.

I was like, wow, this is pretty shocking. You know, I think we might have black and white proof here that these cops are lying and trying to frame the defendant. You know, there was something about his tone that struck me as having an air of truthfulness to it.

Their attempt to explain why they didn't turn on their body-worn video just gave me so much ammunition.

The problem is when you have two different cops who come in and say they would never do something like this, they wouldn't risk their careers to go to prison, blah, blah, blah, you know.

I wasn't really sure if the jurors completely bought the body-worn video evidence. I hope they would.

All 12 would have to believe that the gun was planted in order to come back.

Welcome to Another Not Guilty. I'm David Moore.

Here, along with my fellow public defenders, presenting to you the untold stories of the criminal justice system.

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

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

In an unjust criminal system.

With a deck stacked against us.

Another Not Guilty.

Okay, everybody, what's up?

Your boy David here, Another Not Guilty.

I'm just really excited about this week, guys.

This is a really awesome week, and I know I told you that last week, but this week, I really mean it, because we have a dope show today.

We have one of A&G's favorite co-hosts, Michael, with us today.

Hello, David.

How are you doing, buddy?

I'm doing great. How are you doing?

Good. You barely made it on time. Where were you coming from today?

I actually had to pick up a package before I came over here, so it was a very, very important package.

Really? Wait, when you talk about package, are you talking about delivering quality public attorneys to the public defender's office?

In so many words, yes.

But weren't you like at the UCLA today or something?

I was recruiting public defender law clerks to come up on board this coming summer, then came back, did an hour in the office,

and then came over here.

What do you do at the recruitment?

Ask them hypotheticals.

Ask them about their resumes.

Oh, okay.

Just trying to figure out if they have the passion, if this is something that they are doing just to do something their first summer,

or if this is something they want to follow for the rest of their lives.

Okay, so today's guest, guys, I've been in the office for about eight years.

I've only known him by name for all those eight years.

I never knew who he was.

He has an office all the way down at the end.

It's by a window.

I never go down there.

That's where all the big dogs in the office sit.

And then one day, he pops into my office.

Am I right, Sully?

Yes.

You popped in to do what?

To compliment you on the podcast.

Sully.

And I was impressed and intrigued.

Not bad.

Good to hear stories about public defenders while working out or driving my car.

Very inspiring.

Well, that's great.

That meant a lot, Sully, and I appreciate that.

Especially, David, Sully has a reputation in her office of being a badass, I think, is the phrase.

Yeah, I know.

He will try any case.

He will win any case.

Yeah.

So, that reputation, I think, that compliment just speaks volumes.

Right.

Just out of nowhere.

Like, he came walking all the way to my end of the office.

The heat.

There's no air conditioning on that side.

There's no air conditioning, you know.

I guess, and so Sully's here to talk about the biggest cases that he does.

He just had a trial.

It was a not guilty.

Tell us about this big case you won.

What was the charge?

The most recent one?

You mean the one I'm hoping to win here in a couple months?

No, no, no.

We're talking about the case you're here to talk about.

That was about this big case.

Well, this was an earth-shattering case, but it was a second-strike gun case, and it was

certainly very important to my client, and he was looking at a fair amount of time

because it was a second-strike case.

And so explain that.

What made it a second-strike?

He had a prior felony conviction as a juvenile, which unfortunately, under the current three-strikes

law, counts as a strike if it's a violent felony, which it was.

So he had a prior-strike conviction, and he was charged with possession of a firearm.

So essentially, he was charged with a felon in possession of a firearm.

And how old is your client?

He was 19, so...

Well, let me ask you this.

So you get the case then, right?

Right.

I got assigned this case as a matrix case with a prelim date.

As it turned out, I got nine prelims on this particular day, which in this day and age, I don't get

that very often.

So I made a tactical decision to have the prelim pool do a few of my prelims.

The prelim pool would be one of our newer lawyers learning the craft, so we give them preliminary

hearings to do for the more experienced lawyers.

Right.

And I'm assuming you're thinking, you have nine cases.

This one on its surface doesn't sound that troublesome.

It looked somewhat like an open and shut case, looking at the police report.

You know, a guy who's an alleged MS gang member, stopped by the police, is on probation.

They do a search, and they find a gun in his waistband.

I mean, that was basically the police report.

So anyway, the prelim pool handled the prelim, and I had not met the defendant until after

the prelim when he was arraigned in Superior Court.

Now, is he in custody, out of custody at the time?

He's in custody, yeah.

I mean, he may have had a no-bail hold because of his juvenile probation violation.

So essentially, that's all the police report says, then, is the cops stop or walking or

driving, they see somebody, they saw them.

The police report, essentially, was that the cops are driving along in the rampart area.

They see a guy who looks suspicious in front of an apartment building that's kind of an

MS hangout, allegedly, and they claim that this guy looks at them and runs away, grabbing

his waistband like he has a gun.

So they said they got out of their car, and they chased him up the driveway of this house

into the carport in the back.

And then when they got up there, they lost him.

So they said they repositioned themselves on an adjacent street so they could look down

on that location.

And when they went to that adjacent location, they saw the same guy, or so they claim, running

between houses, yelling for somebody.

So they apparently made a decision that they couldn't pursue him where he was at because

there were fences dividing the property.

So they went back out to the street.

And then they claim that he mysteriously bumped into them when they went out to the street.

And when he bumped into them, they patted him down, and they found a gun in his waistband.

They claim that the guy they saw running around was wearing a white t-shirt and black gloves

and baggy pants.

And Jose, when he was stopped by the police, did not have a shirt on.

But he had a white t-shirt hanging on his neck and no gloves.

Okay.

So then you get the case.

You give it to the prelim pool.

They do the prelim.

Sent to the trial court for arraignment.

That's when the first time you meet the client.

That's the first time I met him.

The prelim transcript was unremarkable.

But when I spoke to the defendant, there was something about his tone that struck me as

having an air of truthfulness to it that I don't always see.

And it perked my curiosity.

And I knew that there was body-worn video in the case because it was referred to in the

police report.

So I asked him through discovery.

I asked the prosecutor for the body-worn video tape.

And the client, he denied having the gun, right?

He denied having the gun.

Yeah.

No, his denial, like I said, had an air of kind of authenticity and truthfulness to it

that struck me and, you know, kind of made me curious to want to see the body-worn video

myself.

So then you uranum, put it over for a month, request the body-worn, request discovery from

the prosecutor.

Right.

Right.

Yes.

It was a, you know, time-consuming task to try to get it because the DAs in the courtrooms

changed, the calendar DA, and they send it, you know, through this evidence.com.

Evidence.com link.

You know, it's hard to get, hard to open.

And then when you open, it's hard to keep it open.

And that's a download for like an hour or so.

Right.

And I was kind of struggling with that myself.

You feel like that's a pain in the ass?

Because, I mean, when you first started out in the office 30 years ago, what was, what was

the technology situation?

They didn't have a lot of body-worn videos.

Going on back then, right?

Body cams?

No.

I mean, it's interesting.

In this case, you know, as it turned out, the body-worn video was the main ammunition

I had in this case.

Not because necessarily it proved definitively my claim that the cops had actually planted

the gun in the bushes and were trying to frame him.

But that their attempt to explain why they didn't turn on their body-worn video until very late

in the game kind of just gave me so much ammunition to use against them.

What is it?

So what does it show specifically?

Like how many?

Is it two?

Is it two videos?

One or two?

How many videos?

It showed both cops' cams are recorded on separate files.

So you get like, there's basically four files.

Two are the cops in the field during the pat-down.

And then two are from their transport and questioning of him at the police station.

Okay.

And both cops' body cams.

So you get two perspectives because it's two officers.

Two separate body cams, one from each cop.

So I get the body-worn video and I look at it.

And the officers who does the pat-down, what's striking is that as soon as he starts the pat-down,

his body cam video falls off on the ground and is no longer recording anything, which is bizarre, right?

Because, you know, so we don't see him, where his hands are going.

And if they're actually finding a gun in his waistband and he's standing behind him,

he is then blocking the view of the other cop from the other cop's body cam.

So neither body cam is actually recording what the cop's hands are doing in the waistband

or when the cop moves away from the defendant.

So you never see him find the gun on him or pull the gun away.

Nor on the video sound, do you ever hear him say, gun, gun, partner, gun.

They never say anything about the gun.

The first time you see the gun is that after the cop who does the pat-down and who dropped his video

walks away from the defendant and over to a rock wall that's close by,

you see him reaching in there.

And it's not completely clear.

It's a little bit fuzzy.

But arguably, it looks like he's reaching in the bushes

because the first time you ever see the gun is when his hands pulls out of the bushes.

So when I watched that, I was like, wow, this is pretty shocking.

You know, I think we might have black and white proof here

that these cops are lying and trying to frame the defendant.

So let me just see if I can sum it up.

So the video shows the cop searching the client.

And then during the search, the video, the cam falls to the ground.

Right.

The cop who's doing the pat-down.

Correct.

Then the other cop's video shows him doing the search.

It does.

He's standing kind of to the side and behind him

so that the cop who's doing the pat-down is blocking the view from his camera.

So you never see...

You can't see the client.

You just see the back of...

You can't see the front of the client.

All you see is the back of the officer and the back of the defendant.

And then which cop walks over to the bushes?

The cop who does the pat-down.

The pat-down.

Who allegedly found the gun in his waistband.

He goes over to the bushes.

And then you see...

What do you see?

You see him reaching...

And again, it's not his body cam.

Right.

It's his partner.

So it's kind of peripheral.

Yeah.

But you see him seemingly reaching into the bushes that are in this little wall.

Right.

That's about two feet high.

Reaching in the bushes.

And then the defendant says on the video,

What are you doing over there?

What are you putting over there?

And so the defendant, from his vantage point, who's about 10 feet away,

he sees him doing something in the bushes.

Right.

And so then you see him pull out of the bushes and you see the gun in his hand.

The cop.

Do you hear the cops say anything?

They never say anything.

The word gun is never used.

Even after they find the gun.

They don't say...

Until after all this, at some point they ask the defendant,

after they ask him, you know, are you on probation?

Where were you coming from?

Et cetera.

At some point...

No, they never actually ask him, you know, where did you get the gun?

Or any questions about the gun, which is, you know, curious.

Or normally, like, it seems like when they do a pat-down search,

they usually ask them, I'm about to search you.

Is there something we should know about?

Usually...

The client will be like, oh, I have this or that, you know?

Well, that brings me to the thing, one of the curious facts in this case.

So this was not the first, this was the second pat-down.

Because as it turns out, you wouldn't know it because it's not referred to in the police report,

but they had just done a pat-down of the defendant, Jose, moments before that and taken his cell phone.

So it's only when they call him back to give him his cell phone that they finally turn on their body-worn video

and you see the second pat-down or part of it.

So what we have on the body-worn video is actually the cops conducting the second pat-down search of the defendant.

And about how much time has elapsed into the first pat-down, do you think?

Almost immediately.

Like within, like, because you can see on the video, when they finally turn on their body cam,

you see the cop holding up his phone and saying, hey, bro.

And he's about two houses up the street by then and he turns around and comes back.

So it couldn't have been more than, like, you know, a minute.

And they testified it was just a few seconds at the trial.

So that fact that they didn't record anything during the first pat-down was a big piece of ammunition for me during the trial

because it didn't make any sense in a lot of different ways.

Like, why would they?

They just patted him down and searched him for a gun, right?

When did you learn about the second, the first pat-down?

When I watched the video, I see the cop holding the phone up, right?

And so how that made it clear that he was calling him back to give him his phone.

So I knew that there had been a first pat-down.

So you meet the client.

You said, this guy is believable.

You get the body worn video and it just affirms what your client told you.

You know, on two different levels.

First, you know, the stuff in the bushes, but also just the bizarreness.

This is a guy that they claim looked like a gang member holding his waistband running with a gun that they had just searched and patted down.

They just patted him down like seconds before this.

Why would they call him back to give him his phone and then search him again?

Hello, this is David from Another Not Guilty.

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Thanks.

So after you watch these videos, what is your prevailing theory of what actually happened?

How did they plant this gun or what exactly do you believe took place?

What I think probably happened, and of course, you never know for certain.

I think when they were chasing this guy that they saw run behind the house and disappeared, I think the guy dumped the gun.

And that's when they retrieved the gun.

So they had the gun on him when they went back to the adjacent street.

And I think that when they patted the defendant down the first time, I think they were looking for bullets because the gun was empty.

It didn't have any bullets in it.

I think they were patting him down looking for bullets.

They didn't find any bullets.

When they searched him, they took his cell phone.

I think after he walks away and they're holding their cell phone and still, you know, they haven't turned on their cameras yet.

I think they made their decision at that point, you know, we're going to put the gun on him.

And I think the gun was in the bushes when they called him back.

You know, they do this faux pat down and then reach into the bushes for the gun.

So you're saying that the cops really were chasing somebody.

I think that's likely because I think that's where they got the gun.

You know, I mean, I don't think they were just carrying around a drop gun that they were going to plant on somebody.

I mean, I don't know exactly because there's no.

Without radio.

They never turned on their body worn.

Well, that was the thing I brought out, you know, in cross-examination is, you know, they never turned on their body worn video when they were chasing the suspect initially.

Right.

At this MS location.

They never turned on their body worn video when they were looking for in between the houses.

They didn't turn it on during the first pat down.

The only time they turned it on was this last.

But what about the, did they call dispatch or say, hey, we're chasing somebody, pursuit, male, Hispanic.

No, they never called for backup or anything.

So even your theory, you're even theory of it, you're giving the cops more credibility than they should.

I mean, like, who knows if there was actual chase?

I don't know where the gun came from because how would we know?

And where did that description with the shirt, the gloves, where did that come from?

At what point did they suggest that that's who they were chasing?

Well, it's in the police report, and that was their testimony.

I did, one big advantage I had here was I kind of knew the location better than the cops, as it turned out.

I didn't realize that.

But, you know, I went to the location with my law clerk, and we took our cell phones, and we took a bunch of pictures, and became very familiar with the location.

And, you know, we realized that a lot of things they were saying probably weren't true.

Like, they couldn't have really seen what they were claiming they saw between the houses because there's these tall fences everywhere.

When we went to the initial house where the cops said they saw the guy run up the driveway, you know, which they said was like an MS stronghold, you know, I made the law clerk wait in the car, and I walked up the driveway there because there were these guys standing in the back.

And I kind of wanted to just see the location to see, like, what opportunity there would have been to discard a gun.

But I also was, like, you know, thinking these guys, they might know these two cops, right?

So I went up there, and I'm like, okay, hey, you know, I'm just taking pictures.

I'm like a lawyer here, you know, representing a guy, you know, because they could have thought I was a cop.

So I kind of told them what I was doing.

I'm just taking pictures from my client, you know.

But I said, you know, I'm trying to, you know, I'm trying to find out about these two cops that are trying to frame my client.

And I mentioned their names.

And they both kind of nodded, but they didn't really want to say anything, so I couldn't let it go.

You know, I was like, okay, let's get out of here while we're still.

But then we went back to the adjacent street where all of this.

How do you dress when you go out to a crime scene at an MS-13?

You called it a stronghold, you know, like.

I wasn't really planning any.

I mean, I was probably wearing a suit.

Wearing a suit.

I wasn't really planning any, you know, I didn't know that I was going to get out of the car.

You weren't trying to go undercover?

I definitely wasn't undercover.

No face tattoos or anything.

I look more like a lawyer than a cop, I think.

But who knows.

But so then I went to the adjacent street.

And one of the things that I realized was that the location where they were claiming, they bumped into the defendant.

Because I knew from the, you know, we did a pretrial hearing.

Right.

The suppression motion.

And I realized that their claim about where they encountered the defendant was not consistent with the actual location.

And I knew that I could bring that out during trial because I had the video and I had the pictures that I was taking there with my camera of that location.

So I kind of knew that I was going to catch them in a big lie about that.

So did you go to the crime scene?

So I did a number of things.

So I do the, we do the arraignment.

I get the body worn video.

I look at the videos.

And then I did a suppression motion, a motion to suppress the evidence on the grounds of an illegal search.

Okay.

So you do a motion to say that the cops illegally detained your client and illegally searched in violation of the Fourth Amendment of the United States Constitution.

And just to be clear, you're trying to suppress the actual gun.

I'm trying to suppress the gun on the grounds that they didn't have a legal right to detain him or a legal right to search him.

So this was your first opportunity to cross-examine the officers to get information from them.

Well, only one officer was called, obviously, at the 15th.

And which one?

The one that did the pat-down?

The one who did the pat-down and wrote the police report.

So he was the primary officer.

And how did that motion go?

Well, we lost the motion.

But when I started doing the motion, I didn't really intend to use the body worn video as an exhibit.

But during the course of the hearing, the cop was just so all over the place and sort of implausible in places that I could see I kind of had the judge's attention a little bit.

So I decided to just go, you know, have nothing to lose.

So I, you know, run upstairs and grab my computer and brought the video down and played it for the judge.

I only played the portion of arguably where he's reaching in the bushes.

The problem is that the body worn video at that point was kind of fuzzy.

So after the hearing, you know, when the judge denied my motion to suppress and indicated that he couldn't make a definitive finding because the video wasn't clear enough, I then appointed an expert to enhance the video.

Now, I've done that.

A lot of times you don't get a great enhancement.

How was the enhancement?

You know, it wasn't like spectacularly better, but it was good enough.

Actually, on kind of a collateral issue.

When the cops, you know, I asked the cop, why did you, you know, do the pat down the second time?

You just patted him down and searched him.

Why did you do it again like five seconds later?

And his explanation is when he was coming back to him to get his phone, he was grabbing his waistband and that alerted him that he might have a gun.

How did the cop get his phone the first time?

When he patted him down.

He pulled it out of his pocket.

He pats him down.

He pulls out a phone, but missed a gun for some reason.

Right.

No, I know.

I mean, that was part of the ridiculous stuff, right?

And he wasn't sure if he reached in his pockets or not, but somehow he managed to get his phone.

What was the cop's reason for the pat down the first time around then?

How did he say that happened?

Because he matched the description of the guy they saw running away and running between the houses.

They thought he had taken off his T-shirt to disguise himself and gotten rid of the black gloves.

So they thought he was the guy they saw running away.

But kept the gun.

But kept the gun, right.

And now it's conveniently taken off his shirt to expose his waistband.

So what was the collateral issue that you said you found through the video?

The collateral issue was that when I asked the cop at the pretrial hearing, why did you pat him down again?

You had just done it a few seconds before.

And he said, well, because he was grabbing in his waistband.

Well, I knew that on the body worn video, when it shows him running up, that you have a pretty clear view of him running right up to them.

And he's not reaching his waistband.

But when I got the video enhanced, it made that very clear, that from the time they first call out his name and you see him look back, he turns around and runs back.

And you see his hands in plain view.

And he's never reaching for his waistband.

So that was a complete cop basically fabricating this claim in order to justify why he subjected him to the second pat-down.

Now, you said that you piqued the curiosity of the judge.

Was there any traction, any deliberation on the motion?

I mean, he was willing to indulge me in playing the video.

He took the video himself into chambers to watch.

And I told him exactly the time frame to watch the timestamp and focus his attention on a particular part of the video.

So he was clearly interested enough to follow up to that extent.

So then you submitted the video to impeach the cop's testimony.

I ended up arguing that there was no reasonable suspicion for the detention because he didn't match the description.

And then what I really argued was that it was unreasonable to subject him to a second detention and pat-down.

Even if he was on probation, this is arbitrary and capricious.

You just searched him, you know, to search him again moments later without justification arguably is arbitrary and capricious,

which is, you know, grounds for suppressing the evidence, even if you don't have, even if you're on probation.

Did you impeach the cop with the police report at all?

Say you didn't bring up a second search in your police report?

No, the first search wasn't in the police report.

Yeah, no, no.

Well, I made sure that it was, you know, I brought it up.

I asked him, you know, there's no mention anywhere in the police report about this alleged first detention where you patted him down, right?

And he admitted that.

And then I asked him why.

And he was like, I didn't think it was important.

And I have to say I was disappointed with the judge in the pretrial hearing because when we discussed that later during argument,

he was like, well, you know, the cop didn't think it was important.

Well, you know, since when is that the standard about what a police officer should be putting on the arrest report?

You know, what he thinks is significant.

So the judge denies the motion and his record is part of the reason was the cops were credible or?

Right.

He makes, you know, this particular judge makes actual written findings.

And so he sent by email a finding a week later that the motion was denied and that he was making a finding that the officer was credible in his opinion.

And he but he did stress that, you know, he couldn't make any kind of definitive decision based on the videotape because it was kind of blurry.

So that that's why I did the enhancement.

Was this the same judge that asked you about why would the officer frame?

Yes.

This guy.

Yes.

And what was blurry?

What part was blurry for the judge?

The part where he's reaching in the bushes.

Oh, the cop was.

What about the hands?

The client was walking.

Right.

You know, that's a little blurry, too.

And so he says the cop reaching into the bushes is blurry.

Right.

The two material parts of the body cam.

Right.

For my purposes was the, you know, the whether the defendant was reaching for his hand in his waistband when he ran up and whether or not he reached it, whether the cops reached in the bushes.

How far away were the bushes from where the search took place?

Like six feet.

Very close by.

That's why you see it in the periphery of the officer's body cam who's holding on to the defendant.

And then, so you, like you said, you sent the video to get it enhanced because you didn't want it to be blurry or anything like that.

Did you think the video was blurry, like the judge said?

Yeah.

I mean, I, I, I, to me it looked clear enough, but no, I mean, it wasn't crystal clear.

So yeah.

Did you like talk to anybody else, seek a second opinion, like colleagues or anything like that?

I had people come into my office and I tried not to prompt him too much, but I asked him, what do you see there?

Every time they looked at it, they go, wow, the cop is reaching in the bushes and pulling out a gun.

So I thought it was fairly clear, even though the judge went out of his way to make, to, to remind me that I had used the word really clear during the argument and he was categorically disagreeing with it.

So you do this motion, you enhance the video.

What else do you do in preparation for trial?

Well, going to the crime scene and taking pictures.

One of the things that I realized, which is sort of complex and hard to, to explain without a diagram, I actually had diagrams of the location that I used a lot during the trial, but there was this, you know, curious fact that they didn't record the first encounter with the defendant on their body cams.

And their explanation was that, uh, they just bumped into, in fact, in trial, one cop said, we bumped into him.

The other one said, we just, uh, you know, ran into him.

So essentially what they were claiming is that when they came out from looking between the houses to the sidewalk, he ran right into them.

But I knew that wasn't true because when I went to the crime scene, I realized that it was eight houses away from that, where he had actually been detained.

You see that on the video.

Eight houses away from the location where they claimed that they had detained him.

And the reason they're saying that, right, is because if they had walked down the sidewalk, eight houses with their uniforms on, and he, and he was coming towards them, you know, that wouldn't make any sense.

Why would somebody with a gun, you know, be running up to the police officers if you had a clear view of them walking eight houses down?

So I knew that they weren't, you know, that they were basically lying about that, that they were going to, so they, and they kind of fell into that trap.

They both testified at trial, and they both claimed that the initial detention, actually both detentions, happened right at this location where they had been looking between the houses, which was eight houses away from where it actually happened.

Hey, it's your buddy Dave from Another Not Guilty.

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Thank you.

Okay, so you get sent out to trial.

You kind of wanted to go to trial, right?

You kind of wanted to do this case?

I did.

I actually, I really liked this particular defendant.

There was something about him that just, I told, you know, my wife and others that I really kind of took a personal liking to him.

In fact, after this whole thing was done, you know, I told him, I want you to, like, call me and let me know what's going on, you know, and see if we can get you over to, because he's got tattoos on his forehead.

Right.

So I wanted him to go over to Father Boyle's at Homeboy Industries and see if he could get those off.

So how much of this is a gang issue?

Is the gang, the MS-13, is that part of this case?

How does that factor in?

Yeah, I mean, that's an interesting question, because clearly it was the motivation, I think, behind the cops detaining him and searching him.

And once they saw the tattoos, I'm sure it set in motion things.

But there wasn't a gang enhancement.

He does have, he did have MS tattoos on his forehead, as well as some other, so he clearly had these kind of markings on him.

What I did before trial was I 402'd these things, which means I asked to have any evidence of his gang membership excluded from the trial.

I knew the cops, they'd ask him lots of questions about his, you know, prior membership or whether he belonged to MS.

So I knew they knew about it, and it could come out during the trial, and I wanted to keep it out.

So the judge agreed to exclude any references to gang affiliation.

But your client's sitting there in front of the jury with these gang tattoos, right?

He's got these tattoos.

The MS is kind of small, but yeah, he has very distinctive tattoos all over his forehead.

You can't miss them.

Did you, in voir dire, did you talk about that with the jurors?

I did, almost immediately.

I mean, the judge had him, you know, without prompting me, ask him to stand up and face the jury and say hi.

And, of course, then everybody in the courtroom saw his tattoos, and, of course, the first thing out of the cop's mouth during the trial was that he recognized my client from those distinctive tattoos.

So, you know, I knew it was coming out.

So I brought that up in voir dire to, you know, I essentially asked the jurors, you know, I mean, hey, you see the defendant over there?

He's got tattoos.

You know, I kind of picked on a kind of a younger person on the jury, and I said, you know, what do you think about facial tattoos, you know?

You a big fan of those?

No, I don't really like them.

And then I asked another jury the same question.

I said, so, but, you know, we're not really here.

This trial isn't about tattoos, right?

You get that, right?

You're not going to hold it against him because he has facial tattoos, right?

You're not going to, you know, convict him because of that, right?

You know, so I went around and sort of asked questions like that.

You're not going to hold it against him that he has tattoos.

And, you know, I kind of made a joke out of it.

Like I said, you know, like, you know, ask a juror, you know, he said, no, I don't like facial tattoos.

I said, you know, I don't see a lot of jurors here with facial tattoos.

Do you purposely choose a younger juror for that type of questioning because maybe they're into tattoos more than an older juror?

You know, I thought we just might, it kind of would, you know, be easier to ask a juror who probably had some familiarity with tattoos and wasn't that uncomfortable with it, you know?

So it turns out a couple of jurors said, yeah, well, I have tattoos, just not on my forehead.

So it's, you know, good, you know, anybody else have tattoos, you know?

No follow-ups about where their tattoos were?

No, no, no.

Did, um, any other strategy or things you brought up in voir dire then, or?

Well, and the case was clearly about police officer credibility.

So that was the main focus of my voir dire, which is to, you know.

How did that go down?

Well, you know, I mean, I've done a lot.

How did you solely do a cop credibility voir dire?

You know, my standard cop credibility voir dire is to start off with just witness credibility, ask jurors, you know,

do you think that, you know, people ever come to court and testify under oath and then are mistaken about things, you know,

and then kind of creep along to, do you ever think people come to court and take the oath and then lie about things?

Do you think that happens?

And, you know, you kind of go around, talk to a few jurors, you think this is something that happens, yeah.

And what about police officers?

Do you think they ever come to court and then testify about things that they're mistaken about or wrong?

You get them, you know, kind of bringing them along, and then finally you get to,

do you ever think police officers ever come to court and take the oath and then testify falsely about things?

Yeah, lie under oath?

Do you think that happened?

You know, sort of kind of bring them along that way.

Kind of interspersing it with, like, the commentary of, well, you know, police officers are like everybody else, right?

Some are more honest than others, right?

Yeah, so we're not saying that all police officers are lying here, right?

But you can have an open mind about whether that's possible, right?

So are you ultimately happy with the jury you select?

Yeah, I thought they were surprisingly a pretty good jury right off the bat.

There was one juror who was kind of a humorous moment.

So the DA does this little voir dire where she asks, you know, standard DA voir dire question.

You know, well, if you, you know, if you're all, if you're convinced, you know, the prosecution's proven this case beyond a reasonable doubt,

how are you going to vote, guilty or not guilty?

And, of course, she wants, and she goes around to every juror to say guilty, guilty, guilty.

And then she gets to this young guy and he goes, well, you know, it kind of seems like a trick question, right?

You're trying to, like, brainwash us here, you know?

He's, like, really in her face.

I'm assuming they did not make the jury.

So I deliberately, you know, accepted the jury as constituted with this guy on it.

Forced her to dump him.

Because you knew she'd kick him, huh?

Oh, yeah.

Okay, so then the evidence rolls out.

The DA puts up the cop that testified at the 1538 pre-trial motion or the other cop?

No, she called both, but she called the 1538.5 officer first.

And then what does he say on direct?

You know, his story was basically the same as the 1538.5.

She knew what was coming, so she had him already explain why he didn't put it in the police report

that there was a first detention, why he didn't turn on his body cam until the second detention.

So she had him already explaining some of the things that she knew I was going to cross on.

Okay, so then now you get up the cross, right?

And how does that go?

You know, the cross, I had a little bit more ammunition now because of the 1538.5.

So one of the things that I did before trial was get a copy of the LAPD procedures and policies for body-worn video.

So this is something that's issued by the chief of police and that arguably police officers all should know about.

I talked to one of our investigators who said that these are always emailed to the officers directly.

So they arguably should know them.

And then he was sitting, the cop was sitting in the hallway before trial.

So I gave him a copy and said, hey, you may want to look at this before trial.

So I knew he knew it by the time he got on the witness stand.

So I beat him up with the body-worn video policies and the fact that he had not activated his body-worn video in accordance with those policies.

And did they try to give excuses or did they kind of just readily accept why?

No, no, no, no.

The funny thing was is that the cop basically admitted that he was an idiot numerous times.

Like at one point, he was like, I don't know how I didn't find that gun the first time during the pat-down.

You know, somehow I must have missed it.

Why didn't you turn on your body-worn video when you did the first, well, you know, we just bumped into him and, you know, we just didn't have time.

Wait, but the whole reason why you patted him down is because you saw him clenching the waistband.

Right.

How do you miss?

And it was a big gun.

This is a fact that came out during the trial.

The gun was really big.

It was a revolver that was, you know, a foot long.

And the cop pulls out his gun.

And I had the cop pull out his gun in court.

And it was a big gun.

And this revolver was much bigger than that.

And we had a picture of it blown up and on the overhead screen.

So the jurors all saw it.

And, you know, the idea that this cop could have patted him down looking for a gun and not found it was just ridiculous at that point.

And so the cop had to sort of give some sheepish explanation.

I don't know how I missed it.

Then the procedures where you're just like, you didn't follow this procedure.

Yes, you didn't follow this procedure.

Yes, I did.

You know, I summarized it a little bit because, you know, I didn't want to – it wouldn't seem fair to the officer if I was to ask him specific sections.

But I said, you know, the policies and procedures are you're supposed to activate your body-worn video when you're chasing a suspect in pursuit or when you're having any kind of encounter, investigative encounter or any search or detention.

So clearly, you know, there were policies that he had violated.

And then I asked him, these are the policies.

And you violated it.

So you didn't do it, right?

What could he say?

He had to admit no, no, no.

And then there's another policy that they're supposed to report their failure to activate their body-worn video if there's some special circumstances.

So I beat him up with that.

And so, you know, there was a long series of, you know, sheepish admissions by him that he had violated the policy.

And I put it like that.

I would sort of ask him about the policy.

What did you do?

And I'd say, so you violated that policy then?

And he was like, yeah.

And then the police report was interesting because, you know, they didn't put in the police report the first detention where they did this pat-down and failed to find a weapon.

So, you know, I brought that out, obviously, that that wasn't in the police report.

But the city disclosure report has a special section that says that where the police officer is supposed to sign under penalty and perjury that there are no statements or evidence that are not in the police report that would be favorable to the defense.

That's how it reads.

The passage reads basically indicate if there's any evidence not in the police report or arrest report that it would be helpful to the defense or exculpatory.

So, you know, I asked him about the city disclosure report and the fact that he signed it.

And basically, it's a checklist of things that aren't in the arrest report that he should include mention of.

Right.

And I brought it out and then asked him, did you check that box?

No.

And then you signed it under penalty and perjury.

So, you know, I sort of took him on a little cruise through the omissions in the police report.

Which is not usually a report that's used that often.

No, no.

I had a huge nugget going into the trial.

Essentially signed a document under penalty and perjury that there was nothing missing.

Did you ask for a lawyer to be appointed for the cop?

I didn't do that.

Did you say you want to plead the fifth about this?

I didn't want to stop.

Because you signed it under penalty and perjury.

I didn't want him to leave.

We were having so much fun.

Your Honor, I think we need to stop.

Counsel needs to be appointed.

Counsel needs to be appointed.

No.

What about your little crime scene investigation?

How did that work out with the police officer, the pictures?

Right.

Well, so he pretty much admitted what I thought he would, which is that the initial detention

happened right where they had first entered the property on the street, which is eight

houses away from where it really happened.

So he committed himself to that.

And then at that point, I brought out the diagram and my photos and was able to show him and get

him to acknowledge that the actual location where the detention took place was eight houses away

from where he said it took place.

It was like pulling teeth, though.

His lack of candor about that, I think, is something that also hurt his credibility with the jury.

His unwillingness, he wouldn't budge on that.

So I had to literally show the body-worn video, match them up with the photos that I had taken

with the address of the location, clearly showing them being the same place before he would finally

admit that, oh, yeah, I guess it was eight houses away.

Small lies, the cops, to try to cover their tracks, right, end up basically ballooning into something

much bigger than that.

He thought it was a small lie, I'm sure, just to sort of explain why he didn't turn on his

body-worn video, not thinking it would make any difference.

But, of course, it turned out to be important because, again, not only did it show that he

was lying, right, but it also helped the jury to understand that if the officers were eight

houses away from where they said they were, then the defendant would have had a lot of opportunity

to see them when he walked up to their location, which arguably someone with a gun

and their waistband would not do, you know, that didn't make any sense.

Did you hit him with the enhanced video of the waistband?

Right, and that's, I sort of saved that, you know, later on in the cross-examination

because that was kind of the, you know, the best thing we had.

The way I did that, so it was interesting.

I have never cross-examined a police officer with body-worn video.

So the 1538.5 turned out to be very useful because it was a practice session for me.

So by the time we did it at trial, it was comfortable.

So what I did was I took him through to sort of authenticate it.

So I turned it on and then stopped and started it and said, that's you, that's your body-worn

video, that's you, that's the defendant, that's you doing this, that's you doing that.

He just played it and taking him step-by-step through it so that he would acknowledge that

he had the body-worn video and that was the defendant, that was him doing this.

And then I went back through it.

And wait, just to be clear, this is his partner's body camera where he is.

No, this is his.

To start off with, this is his.

Okay, the one that fell.

His body-worn video at the beginning shows the defendant running up to his location, clearly

not grabbing his waistband.

So then on cross, I mean, on, after going through it once, the second time I said, I did it in

episodes.

I said, you know, that's the defendant running up to your location when you held up his phone.

Correct.

And clearly he's not grabbing his waistband there, is he?

And so that's when I got kind of interested because he goes, well, he was doing it before

I turned on my video.

Now, I nailed him on that at the 1538.5, so I knew that he had testified very clearly

that the defendant, he claimed the defendant was grabbing his waistband all the way as

he was running to their location.

So I impeached him with that.

Oh, nice.

And you knew he was going to make that answer.

Right, right.

So he was in a catch-22 and he sort of fell into that trap.

So I was able to impeach him with that.

And also, you know, the jury's watching this whole thing, right?

They're seeing he clearly not grabbing his waistband, so he's lying about that.

So then I, taking him through the body-worn video, I took him through the actual pat-down.

And when he drops his camera, it's really right about the time when he drops his camera that

his partner finally turns on his body-worn video.

So what I did is I got them enhanced and I got a simultaneous video.

I had this great video guy.

So he did both cams side-by-sides, two-sided, synchronized videos.

One starts first, and then the other one starts second, but they're running at the same time.

So it was kind of a neat little trick.

So the cop is watching them on the screen as the jury is.

And when he drops his body cam on the ground, his partner's body cam video starts and is

on at that point.

So I took him through that and basically, you know, said, you know, your hands are nowhere

visible on this, correct?

Yes, and when you pull away from the defendant, there's nothing in your hand, correct?

Well, you know, he wasn't going to agree to that, but it's hard to see in the video, but

it almost looks like when he pulls away from the defendant, there's nothing in his hand.

And that's the way I saw it, and I thought there was an argument for that.

It's not crystal clear, but it kind of looks like there's nothing in his hand.

So, you know, he denied that.

And then I took him to the bushes and, you know, said after the pat-down, you moved around

to him and you reached into the bushes and you pulled out the gun, right?

That's what's on the video.

And of course, no, no, no, I didn't do that.

No, I didn't do that.

I would never do that.

I didn't do that.

I was over there checking the gun to make sure it wasn't loaded.

So the second officer on cross, you know, I wasn't really sure what I was going to do.

You know, I didn't really have a plan because it all happened pretty quickly.

So I sort of decided, you know what?

I'm going to take this guy through everything.

So I just started from the beginning.

Their initial observations, the detention of the defendant the first time, the second time,

so I just took him through the whole thing.

I did the same thing with the video cam where I-

And you're looking for inconsistencies here?

Well, I knew there were things that weren't in the police report.

And I was going to be kind of curious to see what his explanation would be.

And of course, as it turned out, he contradicted the first cop.

There's nothing in the police report about observations of the suspect running between

the houses, you know, before the first detention.

But the first cop had testified about it and described what the guy was wearing and said

that he had a white t-shirt on and was wearing black gloves, which was their initial observation

of this unknown suspect.

So the other cop gets on there and of course testifies that the guy they saw running was

not wearing a shirt, which is the way the defendant was clothed when he was detained

and didn't have gloves on.

So he was trying to basically describe the way the defendant was when he was detained,

even though there's nothing in the police report about it.

So I had fun with that because, you know, I brought out that, okay, you know, you've read

the police report.

So this guy's creating more lies, different lies from the first cop.

He's contradicting his partner on various things.

And then, you know, I kind of took him through the whole series of actions that took place

after that, kind of asking him the same questions, you know, about the body-worn video, right?

Because he didn't write the police report, but he also did not turn on his body-worn video

until the second detention.

So I briefly, I did not as much as I did the first cop, but, you know, ask him some questions

about the policies, got him to admit that he violated the policies.

Ask him, you know, a question about like, you know, when he did things and sort of lined

it up that way.

Your client exercised their Fifth Amendment right, didn't testify?

He did not testify.

Which is fine because you were kind of able to tell his story through the police, right?

In terms of him walking down the street or not, or like...

I don't think there was anything he could have added that would have been helpful and why

subject him to cross-examination about, you know, his prior...

And you essentially told his story through your opening?

I did.

I mean, and we had, you know, the argument that he didn't have the gun.

That's all he could have testified to.

So I didn't need him to add anything.

All right.

So time for closing argument.

As it turned out, we finished with the last witnesses early in the afternoon, and both

the prosecutor and I assumed that we were going to argue the next day.

But then the judge, he sort of left it open.

He said, well, you can argue...

Well, this is, you know, right before lunch that we're having this conversation.

He's like, well, we're going to be done early this afternoon.

You guys...

What do you guys want to do?

And he's kind of like, you know, it's kind of up to you.

If you want to argue this afternoon, you can, or we can do it tomorrow.

And I saw the DA over there squirming, you know, thinking, you know, that she was going

to fire.

I'm like, oh, let's do it this afternoon, you know, I'm ready.

I mean, you know, you don't get to go first anyway.

And I mean, I knew the case then anyway, you know, I wanted to just do it.

And I think it was a Friday.

It was Friday.

Oh, yeah.

Yeah.

So that we would have, they would have had to, you know, we'd had to wait till the weekend.

So I wanted to do it while it was fresh in my mind, too, because there's a lot of weird

details, as you can imagine.

So we argued her, you know, she did the standard DA, you know, elements of the crime, officers,

testimony.

So then what was your closing argument like?

Yeah, it was funny, because I scratched it out over lunch.

You know, I was sort of torn about it, because I wasn't sure whether to where to sort of include

the video in the whole thing.

So what I decided to do was essentially argue that, you know, this was this remarkable, incredible

case where the jury was like, it's like watching TV, you could actually watch a video about what

happened, and you can see what happened, right?

And you clearly see the cops never find the gun on him, recovered in the bushes.

I said, that's really everything you need to know about this case.

But let's assume for purposes of argument that there wasn't a video of what happened in the

bushes, okay?

So it just comes down to officer credibility.

The only evidence you have is what they told you happened.

So basically, what I argued was that this was a, you know, came down to cop credibility,

and went through all the arguments that I had been making or building during the trial about

their lack of credibility, and, you know, argued that they were willfully false.

I love the willfully false jury instruction, and when you can catch somebody, like I think I had

caught this cop a couple of times, it gave me a pretty powerful piece of ammunition to tell the jury

basically to throw out, you know, reject their entire testimony.

So I essentially, my argument was that even if we disregard the videotape portion where they're

reaching in the bushes, and this is just a question of whether you believe their credibility

beyond a reasonable doubt, you know, there's a mountain of doubt here, and I kind of went

through it, all this stuff that I had covered during the trial, and then added that not only,

you know, do these cops lack credibility, but there's no corroboration.

How long was your closing?

Yeah, probably like half hour, 45 minutes.

I mean, this wasn't a long case.

It wasn't that constant.

There actually was a lot of detail.

There is a lot of evidence to go through.

All the impeachment, the video, the punk, you know, like...

I mean, I kind of had to go through it again with them just to make sure there wasn't any

confusion.

So I had the diagrams.

The best thing I had during closing argument was to explain the significance of the diagram

of the scene where they claimed they were eight houses away from where they were.

The reason that's important is because the question is like, well, when would they have

stashed the gun?

And the reason that it was important for the jury to know that the encounter happened eight

houses away from where they claimed it is because that's where the rock wall is, where

the gun is at.

So, you know, what I suggested to the jury was that, you know, they had been at that particular

location, which was eight houses away from where they said they were, during both of the

detentions.

And so they would have an opportunity to put the gun, you know, in the rock wall before

they called the defendant back.

And that's just happens to be the time when they turn on their body cams.

So it was important for them to understand that, the significance of that location for more

than one reason.

The jury's come back Monday.

Come back Monday.

They were out for a few hours.

They had no questions.

They came back 10-2, hung.

Oh, okay, hung.

Okay.

Yeah, yeah.

And how do you feel at this point?

You're probably...

You know, I was okay with that.

I mean, it was, you know, the problem is when you have two different cops who come in and

say, you know, they would never do something like this, you know, that it's outrageous,

they wouldn't risk their careers to go to prison, blah, blah, blah.

You know, I wasn't, you know, even...

And I wasn't really sure if the jurors completely bought the body-worn video evidence.

I hope they would.

I kind of figured we needed...

All 12 would have to believe that the gun was planted in order to come back.

Yeah, so they were out for about a day.

They came back 10-2.

10-2 for not guilty, 2-2 for guilty.

What happens next?

So I talked to the jurors in the hallway.

No, well, yeah, and I go out and I talk to the jurors in the hallway with the DA, which

turned out to be kind of a mistake because it turns out that none of the jurors, according

to the three jurors I talked to, believed, you know, emphatically that the gun had been

planted in the bushes.

They simply believed the cops weren't credible because of all the things that I'd brought out

during the trial.

But none of them believed, you know, categorically that the gun was in the bushes, which kind of

surprised me.

And then they kind of made some suggestions to the DA about things maybe that she could

have done better.

So, of course, when we go back in the courtroom, I'm thinking, you know, probably shouldn't

have done that because now the DA probably thinks her case is better than it is, right?

So we come back in and the DA, she's like a baby DA, she doesn't have any power.

So I said, so what are you going to do?

Are you going to refile this?

She goes, let me call.

So she calls and her supervisor's on the phone and I hear them basically talking about the

case and she says, well, what will your client take?

I'm like, you know, I mean, I don't want him to take anything because I know there's

no way they're going to get a guilty verdict on this trial, but he's going to sit in jail

for probably 60 days before we have a retrial.

I said, well, time served, no probation.

Okay.

You know, I mean, reluctantly.

I'm like, I don't actually say that.

I'm talking to my client.

I'm like, you know, you want me to make this offer?

And, you know, the judge is listening to this.

I didn't realize he was listening.

I mean, we weren't like, we're just talking.

I'm like, you know, I'm just telling him, you know, dude, I don't even think you should

take this.

You know, this is, I'm having a hard time, you know, advising you to take this offer,

but, you know, you would, it would be your ticket out if they were willing to take it.

And the judge then pipes up and says, well, you might want to hear from me.

And then I immediately think, I know what's up.

He's like, I think that cop was trying to frame the defendant.

I think he's a bad apple and somebody needs to do something about that guy.

Do you have a motion, counsel?

Motion to dismiss.

Nice.

Case over.

Yeah.

So it turns out I did a great job of convincing the judge.

Right.

Just not the jury.

That's weird.

So the jurors are saying, we don't think the cops planned the gun, but we just don't believe

the cops.

Right.

Well, that's the weird thing.

Like, I kept thinking the whole time in this case that if they didn't believe my argument

or interpretation that the video showed, that they planted the gun, well, the alternative

then would be like, well, they would have to believe then that he had the gun.

Right.

I mean, but I think that what really helped me with the body worn video was not just that part,

but between the cop dropping his body cam, one cop dropping his body cam, and the other

ones doesn't show him ever seizing the gun on the defendant.

So there is no video proof that they found a gun on the defendant.

So it clearly turned it into a credibility type of situation.

So the judge said these cops planted the gun on the defendant and something should be done

about it.

So what was done about it?

Well, the DA, what do you, that's a rhetorical question.

Did something happen to these cops?

No, I don't, you know, I mean, not yet.

Well, because they can go to prison if they lie, right?

So are they, is it charged?

Are you going to be a witness in the case?

So what's going to happen to them?

I'm hoping my client hires a civil lawyer to sue them and seek compensation for the damages

he suffered.

I got to give a lot of respect to that judge though, because I mean, most judges, they

see the case is going to resolve, you know, but he, he kind of unsolicited asked you.

It was interesting.

His bailiff, I think thought the bailiff watched the video several times and I think he thought

the cops planted the gun in the bushes.

And I think him and the judge had talked about it because he made reference.

He goes, well, there's a law enforcement guy in my courtroom who doesn't agree with the

DA's interpretation.

So I think that influenced him.

So that judge had the balls to do the right thing and be a real judge and call the evidence

how he saw it.

Any, any other questions for, how, how was your client's reaction?

You know, he was, he was happy.

I mean, I think that he knew that he was being framed.

I really do.

And so I think that he felt justice was done.

You know, he was very appreciative.

He was a really nice kid.

His, he, several times during the trial or during the time I represented him, he would

ask questions about his social worker who just had a baby, the public defender, social

worker, you know, I mean, he was really a good kid.

And I said, call me when you get out of jail, let me know that you got out.

And like two days later, I got a message on my phone that he was out of jail and at home.

Okay.

So you've been in office for almost 30 years.

Next Wednesday, 30 years.

Next Wednesday.

By the time this airs, it would have been 30 years.

Yeah.

I know you got to get going.

So we have one more question for you and we want to know what, why did you become a

public defender?

Well, you know, it's funny.

It wasn't my first choice in life.

I was a, uh, sort of a failed academic.

I went to graduate school to get a PhD and, uh, sort of lost momentum on that and went

to law school.

And really I was a union labor lawyer, a labor, a union side labor lawyer before I was a PD.

Um, and that just wasn't very exciting on a day to day basis, you know, noble work, but

just not very interesting.

And I'd taken a couple of trial ad classes in law school and I knew that I kind of had

personally, I kind of had the right personality for being a trial lawyer, uh, being somewhat

combative.

Uh, and, uh, you know, the PDs that offered me a job, uh, back in those days, they actually

hired right out of law school.

So they'd already offered me a job.

So I went one day, I just walked over to their office and said, you know, you offered me a

job before I'll take it now.

And back in those days we were hiring in droves.

Right.

But, you know, um, I mean, why am I a PD instead of a prosecutor?

I mean, I, I have sort of, you know, I would say Mark Marksian influenced, you know, class

analysis values.

And, you know, I see our clients basically as victims of a class system.

You know, we represent essentially poor black and brown people.

Uh, I see the DA's office as, and the state in general as sort of, you know, part of the

oppressive apparatus that, uh, is trying to push them down.

So, you know, to me, it's, uh, you know, a natural, uh, place for me to be representing,

you know, people who I think are basically victims of a unequal class system.

Well said.

I like that.

Thanks for being on the show, Soli.

All right.

Appreciate it.

Thanks for having me.

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.

Music.